JRD Stock Brokers (P) Ltd., New Delhi V. ITO, New Delhi

ITSSA 87/DEL/2009

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9129 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-09-2012
• Assessment Year: misc
• Appeal Filed On: 24-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Keywords: Business expenditure; Principle of natural justice; Accommodation entries; Block assessment; Right to appeal
• Section: 263; 132; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER & SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.87/DEL/2009 ASSESSMENT YEAR: 1990-2000 JRD STOCK BROKERS (P) LTD., VS. ITO, 4852/24, 1 ST FLOOR, WARD 4(2), ANSARI ROAD, DARYAGANJ, FOURTH FLOOR, C.R. BLDG. , NEW DELHI. NEW DELHI. AABCJ0701D (APPELLANT) (RESPONDENT) APPELLANT BY : R.S. SINGHVI, CA RESPONDENT BY : D.K. MISHRA, DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER PASSED BY LD. CIT(A)-VII, NEW DELHI IN RELATION TO ORDER U/S 154 PASSED BY THE AO WITH REGARD TO BLOCK PERIOD FROM 01/04/1992 TO 24/11/200 0 RAISING VARIOUS GROUNDS: - THAT THE ACTION OF THE LD. ITO AND THAT OF CIT(A) IS UNJUST, AGAINST THE FACTS OF THE CASE AND LAW IN NO T FOLLOWING THE MAXIMUM TIME LIMIT GIVEN IN SEC. 154(8) FOR DISPOSAL OF AN APPLICATION DT. 13/06/200 5 FILED IN TIME U/S 154 OF I.T. ACT, 1961. ITA NO. 87/D/2009 2 1. THAT THE ORDER DT. 02/02/2009 PASSED BY THE ITO WAS BEYOND THE MAXIMUM TIME LIMIT GIVEN IN LAW FOR PASSING AN ORDER U/S 154, HENCE TIME-BARRED AND BAD IN LAW/NON-EST. THE ORDER DT. 02/02/09 BY THE ITO AND THE ORDER OF CIT(A) BE CANCELLED, ANNULLED, BE HELD VOID-AB INITIO. 2. THAT THE LAW PROVIDED THE ITO THE POWER U/S 154 TO REJECT AN APPLICATION IF HE FEELS SO BUT INSTEAD HE PREFERRED SIT ON THE APPLICATION AND KEPT IT PENDING. AFTER THE EXPIRY TO MAXIMUM TIME LIMIT FOR PASSING AN ORDER AS GIVEN IN SEC. 154(8), THE APPLICATION U/S 154 DT. 13/06/05 AND SUBSEQUENT APPLICATIONS BE DEEMED TO BE ALLOWED. 3. THAT THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WAS INCOMPETENT TO FILE AN APPLICATION U/S 154 BEFORE THE ITO AND THEREBY HOLDING THE APPLICATION U/S 154 DT. 13/06/2005 AS NON-EST AND BAD IN LAW. THIS WAY HE HAS TRIED TO COVER-UP THE INEFFICIENCY AND INCOMPETENCE OF THE ITO WHO COULD HAVE REJECTED THE RECTIFICATION APPLICATION WITHIN 6 MONTHS (LATEST BY 31.12.2005). THE COURTS/AUTHORITIES MAY REJECT INVALID APPLICATIONS BUT NO ONE CAN BAR TAX-PAYER FROM MOVING AN APPLICATION WITHIN 4 YEARS OF ORDER. PUTTING A BAR BY CIT(A) OR HOLDING THAT THE APPELLANT WAS INCOMPETENT TO MOVE ITA NO. 87/D/2009 3 THE APPLICATION U/S 154, IS INCORRECT, UNJUST, AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND BAD IN LAW. 4. PRINCIPLE OF NATURAL JUSTICE IS ONE OF THE MOST IMPORTANT CONCEPT IN LAW AND THE COURT OR AUTHORITIES CANNOT CURTAIL THE RIGHT OF CITIZEN. RIGHT TO GET MISTAKE CORRECTED, RIGHT TO APPEAL ARE SUCH BASIC RIGHTS TO TAX-PAYERS WHICH CANNOT BE CURTAILED ANY AUTHORITY AND THIS IS NOT ACCEPTABLE BY LAW AND PROCEDURES IN THIS COUNTRY. LAW MAKERS NEVER WANTED THIS TO HAPPEN. CIT(A) DECISION HOLDING THAT THERE WAS NO RIGHT TO APPELLANT TO MOVE APPLICATION U/S 154 BEFORE THE ITO, IS UNJUST FROM ALL STANDARDS AND A REFLECTION OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 5. THAT THE DOCTRINE OF MERGER APPLIES ONLY ON THE ISSUES/POINTS WHICH HAVE BEEN CONSIDERED BY APPELLATE AUTHORITIES. ON THE ISSUES NOT COVERED/CONSIDERED BY APPELLATE, RECTIFICATION CAN BE MADE BY THE AO. IN THIS CASE DETERMINATION OF QUANTUM OF TURNOVER WAS NOT CONSIDERED BY THE THEN CIT(A) ORDER DT. 08/12/2003 NOR BY ITAT ORDER DT. 30/11/2004. IF THERE WAS A FACTUAL ERROR WHICH FOR WANT OF COMPLETE DETAILS/INFORMATION WITH THE APPELLANT TILL THE TIME ITAT DECIDED THE MATTER, COULD NOT BE RAISED/AGITATED, THE APPELLANT IS ENTITLED TO ITA NO. 87/D/2009 4 MOVE AN APPLICATION U/S 154 FOR THE SAME. THE LD. CIT(A) ERRED IN CONSIDERING POINT OF DETERMINATION OF TURNOVER BEING COVERED BY CIT(A)/ITAT. 6. THAT THE TURNOVER WAS CALCULATED BY THE ITO BY ADDING UP ALL THE DEPOSIT SIDE ENTRIES IN VARIOUS BANK A/CS OF THE ASSESSEE. WHEREAS THESE ENTRIES INCLUDED (A) INTER-BANKING CHEQUES FROM ONE OWN ACCOUNT TO ANOTHER OWN ACCOUNT, (B) BOUNCED CHEQUES REDOPOSITED, (C) GENUINE BUSINESS DOEN WITH STOCK EXCHANGE. ALL THESE TYPE OF ENTRIES FROM DEPOSIT SIDE WAS REQUESTED TO BE EXCLUDED FROM TURNOVER ON WHICH A 0.60% (AS HELD BY HONBLE ITAT) WAS TO BE APPLIED TO ARRIVE AT THE COMMISSION INCOME. 7. THAT, EVEN FOR ILLEGAL BUSINESS, EXPENSES ESSENTIALLY INCURRED FOR EARNING SUCH AS INCOME ARE ALLOWABLE WHEREAS NO SUCH A DEDUCTION WAS ALLOWED IN THIS CASE CLAIMED AT 0.15% OF TURNOVER. ITAT, DELHI SPL. BENCH IN MANOJ AGARWAL VS. DCIT 113 ITD 377 (SB) HAS UPHELD THE ALLOWANCE OF INCIDENTAL BUSINESS EXPENSES EVEN IN SIMILAR CASES. NONE OF THE ISSUE IS COVERED IN ITAT ORDER AS OPINED BY THE LD. CIT(A) IN ORDER UNDER APPEAL & ARE ELIGIBLE TO BE CONSIDERED FOR RECTIFICATION APPLICATION. MANOJ AGGARWALS CASE CITED HERE ABOVE IS DATED AFTER THE ITAT ITA NO. 87/D/2009 5 ORDER IN THIS CASE AND WAS NOT AVAILABLE FOR CONSIDERATION BEFORE THEN CIT(A)/ITAT. 8. THAT SUCH OTHER RELIEF BE GRANTED WHICH HONBLE ITAT MAY CONSIDER IN VIEW OF THE FACT OF THE CASE AND LAW. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE COMPANY CARRIED ON THE BUSINESS OF STOCK BROKING. A SEARCH & SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON THE BUSINESS AND RE SIDENTIAL PREMISES OF ITS DIRECTOR, SHRI ASHOK GUPTA ON 24.11.2000. IN T HE AFORESAID SEARCH, CERTAIN INCRIMINATION DOCUMENTS WERE FOUND AND THE STATEMENT OF SHRI ASHOK GUPTA WAS ALSO RECORDED U/S 132(4) OF THE ACT . AFTER TAKING INTO ACCOUNT THE RELEVANT MATERIAL, THE ASSESSING OFFICE R COMPLETED THE ASSESSMENT FOR THE BLOCK PERIOD ON 27.11.2002 DETER MINING THE UNDISCLOSED INCOME AT RS. 8,90,36,597/-. AGGRIEVED WITH THE AFORESAID BLOCK ASSESSMENT ORDER THE ASSESSEE PREFERRED AN AP PEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS)-III, NEW DELHI WHO VIDE HIS ORDER DATED 08.12.2003 IN APPEAL NO. 177/20020-03 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. THEN THE ASSESSEE PREFERRED FURTHER APPEAL BEFORE ITAT AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), DELHI WHO IN APPEAL NO. IT(SS)/54/DEL/2004 VIDE ITS ORDER DAT ED 30.11.2004, DECIDED THE APPEAL WITH THE FOLLOWING OBSERVATIONS: THEREFORE, ON THE BASIS OF MATERIAL ON RECORD, WE HOLD THAT THE REVENUE AUTHORITIES WERE IN PROCEEDIN GS ITA NO. 87/D/2009 6 AGAINST THE ASSESSEE UNDER CHAPTER XIV-B OF THE INCOME TAX ACT.. IT IS ALSO NOTEWORTHY THAT THE RATE OF COMMISSION CHARGED BY THE ASSESSEE CAN ALSO NOT BE SAID TO BE PROFIT EXIGIBLE TO TAX. THE CREDIT FOR THE EXPENSE S INCURRED IN RUNNING THE EXPENSES IS ALSO REQUIRED T O BE CONSIDERED WHILE ESTIMATING THE INCOME FROM BUSINESS OF PROVIDING ACCOMMODATION ENTRIES. THE TOTAL TURNOVER ALSO INCLUDES SOME GENUINE TRANSACTIONS CARRIED ON BY THE ASSESSEE ON WHICH RA TE OF COMMISSION WAS ADMITTEDLY MUCH LOWER RANGING BETWEEN 0.25% TO 0.50%. THEREFORE, HAVING REGARD TO THE ENTIRE GAMUT OF FACTS, CIRCUMSTANCES AND MATERIAL WHICH IS AVAILABLE ON RECORD, THERE DOES N OT APPEAR TO BE JUSTIFIABLE REASON TO ESTIMATE THE COMMISSION/BROKERAGE OF THE ASSESSEE BY APPLYING RATE OF 1.5% OF THE TOTAL TURNOVER. IN OUR VIEW, I T WOULD BE IN THE FITNESS OF THE THINGS THAT THE INCO ME EARNED BY THE ASSESSEE BY WAY OF COMMISSION/BROKERAGE ON THE TURNOVER INCLUDING ACCOMMODATION ENTRIES PROVIDED TO ITS CLIENTS IS COMPUTED @ 0.6% ON THE TOTAL TURNOVER OF RS. 104,76,94,004/- ON WHICH THERE IS NO DISPUTE. WE, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO COMPUT E INCOME ON ACCOUNT OF COMMISSION/BROKERAGE. 3. THE ASSESSEE FILED PETITION U/S 154 BEFORE THE A O WHO REJECTED THE ASSESSEES PETITION U/S 154 ON 02/02/2009 AGAINST W HICH ASSESSEE ITA NO. 87/D/2009 7 PREFERRED APPEAL AND IT WAS SUBMITTED BEFORE FIRST APPELLATE AUTHORITY THAT ORIGINAL PETITION U/S 154 WAS SUBMITTED ON 13/06/20 05, WHEREIN THE BLOCK ASSESSMENT ORDER DATED 27/11/2002 WAS SOUGHT TO BE AMENDED. GIVING BY DISCUSSING REASON MENTIONED BY AO FOR REJECTION OF APPLICATION U/S 154 AND ARGUMENTS OF THE ASSESSEE AS UNDER: - 1. 'THAT THE ASSESSEE HAS NOT MADE REQUEST BEFORE T HE UNDERSIGNEDFOR RECTIFICATION OF ANY INCOME'. THE A. 0 HIMSELF IS ADMITTING, IN THE NEXT PARAGRAPH OF THE SAMELETTER THAT, THE ASSESSEE HAD FILED APPLICATION ULS IS4 ON DATED 13.06. 200S AND 11. OS. 2006. HE HADFAILED TO APPRAISE THE TOTAL FA CTS AND APPEARS TO BE IN STATE OF GREAT CONFUSION. APPLICATION ULS 1S4 IS NOT FILED B EFORE EVERY AO. IT IS FILED WITH THE AO WHO IS OFFICIATING. THE ONLY CONDITION IS THAT I T SHOULD BE FILED WITHIN THE TIME PRESCRIBED U/S 1S4 OF THE INCOME TAX ACT, 1961 . 2. 'THAT THE LETTER-DATED 02.12.08 FILED ON 19.12.0 8 HAS BEEN FILED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OFTHEFINANCIAL YEAR IN WHICH THE BLOCK ASSESSMENT ORDER WAS PASSED.' THIS TOO IS INCORRECT. THE FACTS ARE ALL T OGETHER DIFFERENT. OUR LETTER-DATED 02.12.08 WAS A REMINDER AND IN CONTINUATION OF OUR APPLICATION U/S IS4 DATED 13.06. OS AND 11. OS. 06, BOTH THESE LETTERS ARE WITHIN THE TIME LIMI T PRESCRIBED U/S IS4 OF THE INCOME TAX ACT, 1961, 3. THAT, REGARDING DISPOSAL OF APPLICATIONS FOR RECTIF ICATION U/S IS4 DATED 13,06. OS AND I1J)S. 06, YOU ARGUMENT THAT 'THE MATTER HAS ALREADY BEEN TRAVELED UP TO ITAT AN D THE HON' ABLE ITAT VIDE ITS ORDER DATED 30,11,04 HAS CONFIRMED THE QUANTUM OF T URNOVER FOR PROVIDING ACCOMMODATION ENTRIES OF RS.I04, 76,94,0041- ON WHI CH THERE IS NO DISPUTE. THE APPLICATION U/S IS4 WERE FILED AFTER DECISION OF THE HON' ABLE ITAT THIS ASPECT OF MATTER HASFURTHER BEEN DULY CONSIDERED BY THE HON' ABLE ITAT IN ITS APPELLATE ORDER DECIDING PENALTY'. WE DO NOT AGREE. THE ABOVE FINDING SO RECORDED IS FACTUALLY INCORRECT. THE AMOUNT OF RS. 104 AND ODD CRORES IS NOT ADMITTED BY US. WE H'ERE NOT GIVEN ANY OPPORTUNITY BY THE A. 0. NEITHER THE BASIS FOR ARRIVING AT THIS FIGURE NOR THE COPIES OF BANK STATEMENT RELIED ON BY THE LD. A.O. DURING THE BLOC K ASSESSMENT PROCEEDINGS WERE PROVIDED TO US. THE TOTAL OF CREDIT IN VARIOUS BANK ACCOUNTS DOES NOT GIVE THE FIGURE OF TURNOVER I.E. TOTAL OF THE TRANSACTION OF SALE A ND PURCHASE. : THE ISSUE NOT COVERED OR CONSIDERED BY ITAT IS ALWA YS OPEN FOR RECTIFICATION U/S IS4. IN OUR APPLICATION, WE HAVE ALREADY SUBMITTED THE D ETAIL OF ITEMS, TO BE EXCLUDED FROM TOTALING, FOR ARRIVING AT THE CORRECT QUANTUM OF TURNOVER. THE FACTS ARE BEYOND DOUBT ACCEPTABLE BY ANYONE. 4. THE APPLICATION ULS IS 4, DATED 13.06. OS AND 11. OS. 06, WERE FILED WITHIN THE TIME LIMIT PROVIDED IN THE INCOME TAX ACT, 1961. SECTION IS4 PROVIDES THAT THE APPLICATION UNDER THIS SECTION SHOULD BE FILED WITHIN FOUR FINA NCIAL YEARS, FROM THE END OF THE FINANCIAL YEAR IN WHICH THE BLOCK ASSESSMENT ORDER WAS PASSED. SEE, IS4 HAS NOTHING ITA NO. 87/D/2009 8 TO DO WITH THE DATE OF ORDER OF HON' ABLE ITAT AS A LLEGED BY THE A.O. FURTHER, THE A.O HAS FAILED TO APPRECIATE THAT THE PENALTY PROCE EDINGS ARE DIFFERENT FROM THE ASSESSMENT PROCEEDINGS AND TAKES PLACE AFTER THE AS SESSMENT. AN APPLICATION ULS 154 OF THE INCOME TAX ACT, 1961 WASFILED BEFORE THE AO ON 1310612005 AND AGAIN ON 1110512006 REQUESTING FOR R EDUCTION OF TURNOVER AS DETERMINED ALONG WITH THE DETAILS (AS ENCLOSED HERE WITH). THE THEN AO HAD ADDED UP ALL CREDITS IN BANK STATEMENTS TO ARRIVE AT THE TOTAL TURNOVER OF RS 104,76,94,0041- WHEREAS AS PER THE DETAILS ENCLOSED , A SUM OF RS. 14,59,46,6471- SHOULD HAVE BEEN REDUCED THERE FROM, IN VIEW OF THE REASONS EXPLAINED IN THE SAID APPLICATIONS. ALL THESE FACTS WERE CLEAR FROM THE A O'S FILES AND THE ISSUE OF DETERMINATION WAS NOT DISCUSSED OR APPROVED 1 DISAP PROVED BY ANY APPELLATE AUTHORITY. SO UNDER SEE 154(LA), A VALID RECTIFICATION APPLICATIO N ULS 154 OF THE INCOME TAX ACT, 1961 WITHIN GIVEN TIME IN LAW WAS FILED BEFORE THE ITO O N 1310612005 AND AGAIN ON 1110512006. THAT THE LEANED AO IN THIS CASE WAS NOT JUSTIFIED I N REJECTING THE RECTIFICATION APPLICATION AS ALL THE FACTS WERE ON HIS FILE AND T HE REQUEST WAS WELL WITHIN THE TIME. MISTAKE OFFACTS AND WRONG APPLICATION THEREOF IS AL WAYS RECTIFIABLE. THE TURNOVER ADDED UP BY THE THEN AO WAS AGGREGATE OF THE DEPOSI T SIDE OF ALL BANK ACCOUNTS. BUT THE THEN A 0 HAD NOT EXCLUDED THERE FROM- (A) CHEQUES BOUNCED AND REDEPOSITED. (B) CHEQUES FROM ONE OWN A/C TO ANOTHER OWN ALC. (C) CHEQUES REED. FROM DELHI STOCK EXCHANGE. IF THESE AMOUNTS ARE EXCLUDED FROM THE TURNOVER SO DETERMINED, THE INCOME WILL BE REDUCED SIZABLY. SO ON FACTS CLEAR FROM A 0 RECORD, THE APPLICATION FOR RECTIFICATION OUGHT TO HAVE BEEN ALLOWED. YOUR HONOUR CAN STEP IN TO THE SHOES OF THE A. 0. AND CAN DO WHAT HAS FAILED TO DO 5/LJR 225 (SC). KINDLY CONSIDER THE FACTS AND ALLOW THE RECTIFICATION SO SOUGHT. 4. LD. CIT(A) HAS CONCLUDED TO REJECT THE APPEAL OF THE ASSESSEE AS PER PARA 5 TO 6 WHICH READ AS UNDER: - 5. I HAVE CAREFULLY CONSIDERED THE SUBMISSION MADE ON BEHALF OF THE APPELLANT, THE FINDINGS OF THE ASSESSING OFFICER AND THE FACTS ON RECORD. AT THE VERY OUT-SET, THE CRUCIAL FACTS WHICH ARE UNDISPUTED ARE MENTIONED BELOW:- I) THE HON 'BLE ITA T PASSED THE ORDER IN THE APPELLAN T'S CASE ON 30.LL.2004 WHEREIN THE ISSUE RELATING TO THE ESTIMATION OF THE COMMISSION RECEIVED FROM THE ACCOMMODATION ENTRIES WAS DISCUSSED AT LENGTH. THE PERUSAL OF THE ORDER OF THE TRIBUNAL ALSO REVEALS THAT THE CREDIT FOR THE EXPENSES INCURRED IN RUNNIN G THE BUSINESS WAS DULY CONSIDERED BY THE TRIBUNAL WHILE ESTIMATING THE INCOME FROM BUSIN ESS OF PROVIDING ACCOMMODATION ENTRIES; II) THE ASSESSEE HAS FILED APPLICATION UNDER SECTIO N 154 OF THE ACT ON 13.6.2005, ON A DATE SUBSEQUENT TO THE ORDER PASSED BY THE ITAT ON 30-11-2004; III) SUBSEQUENTLY, THE ASSESSEE FILED ANOTHER APPLI CATION ON 02.12.2008 BEFORE THE ITA NO. 87/D/2009 9 ASSESSSING OFFICER. IV) THE ASSESSSING OFFICER VIDE HIS ORDER DATED 02. 02.2009 REJECTED THE APPLICATION OF THE ASSESSEE UNDER 154 DATED 02.12.2008 WITHOUT REF ERRING TO THE EARLIER APPLICATION UNDER SECTION 154 FILED ON 13.6.2005. 5.1. IN THE PRESENT APPEAL, THE MAIN POINT FOR ADJUDICAT ION IS WHETHER A POINT WHICH WAS THE SUBJECT-MATTER OF APPEAL CAN BE SAID TO HAVE BE EN DECIDED AND THE DOCTRINE OF MERGER WOULD APPLY IN RESPECT OF SUCH AN ISSUE. IN OTHER WORDS, THE MAIN QUESTION THAT REQUIRES TO BE CONSIDERED IS WHETHER THE BLOCK ASSE SSMENT ORDER DATED 27-11-2002 PASSED BY THE AO, IS OPEN FOR RECTIFICATION AFTER T HE DISPOSAL OF THE APPEAL AGAINST THE ORDER PASSED BY THE ITAT ON 30-11-2004. THE POWER A VAILABLE TO THE ITO FOR RECTIFICATION IS CONTAINED IN SECTION 154 OF THE IN COME-TAX ACT, 1961. UNDER THAT PROVISION WITH A VIEW TO RECTIFYING ANY MISTAKE APP ARENT FROM THE RECORD, THE ITO MAY AMEND ANY ORDER OF ASSESSMENT OR OF REFUND OR ANY O THER ORDER PASSED BY HIM. SUB- SECTION (1 A) OF SECTION 154 OF THE ACT PROVIDES: ' WHERE ANY MATTER HAS BEEN CONSIDERED AND DECIDED IN ANY PROCEEDING BY WAY OF APPEAL OR REVISION RELATING TO AN ORDER REFERRED TO IN SUBSECTION (1), THE AUTHORITY PASSING SUCH ORDER MAY, NOTWITHSTANDING ANYTHING CO NTAINED IN ANY LAW FOR THE TIME BEING IN FORCE, AMEND THE ORDER UNDER THAT SUB-SECT ION IN RELATION TO ANY MATTER OTHER THAN THE MATTER WHICH HAS BEEN SO CONSIDERED AND DECIDED. ' THEREFORE, WHERE AN APPEAL IS PREFERRED AND THE SUB JECT-MATTER OF APPEAL, PARTICULARLY RAISED, IS THE SUBJECT-MATTER BEFORE THE THE APPELL ATE AUTHORITY I.E. CIT(A),IT AT AND SO ON, THEN THAT ORDER, IN MY OPINION, CANNOT BE THE S UBJECT-MATTER OF AN ORDER OF RECTIFICATION BY THE ASSESSING OFFICER IN TERMS OF SECTION 154 OR OF REVISION BY THE COMMISSIONER IN TERMS OF SECTION 263 OF THE ACT. TH IS PRINCIPLE WAS ENUNCIATED BY THE SUPREME COURT IN THE CASE OF CIT V. AMRITLAL BHOGIL AL & CO. [1958] 34 ITR 130 (SC). IN THE CASE OF AMRITLAL BHOGILAL & CO. (SUPRA), THE QUESTION WAS: 'WHERE THE APPEAL PREFERRED BY AN ASSESSEE AGAINST HIS ASSESSMENT HAD BEEN DECIDED BY THE APPELLATE ASSISTANT COMMISSIONER, DO ES THE ORDER OF REGISTRATION ALONG WITH THE SUBSEQUENT ORDER OF ASSESSMENT MERGE IN THE APPELLATE ORDER. ' THE SUPREME COURT HELD THAT THERE CAN BE NO DOUBT THAT, IF AN APPEAL IS PROVIDED AGAINST AN ORDER PASSED BY A TRIBUNAL, THE DECISION OF THE APPELLATE AUTHORITY IS THE OPERATIVE DECISION IN LAW. IF THE APPELLATE AUTHORI TY MODIFIES OR REVERSES THE DECISION OF THE TRIBUNAL, IT IS OBVIOUS THAT IT IS THE APPELLAT E DECISION THAT IS EFFECTIVE AND CAN BE ENFORCED. IN LAW THE POSITION WOULD BE JUST THE SAM E EVEN IF THE APPELLATE DECISION MERELY CONFIRMS THE DECISION OF THE TRIBUNAL. AS A RESULT OF THE CONFIRMATION OR AFFIRMANCE OF THE DECISION OF THE TRIBUNAL BY THE A PPELLATE AUTHORITY THE ORIGINAL DECISION MERGES IN THE APPELLATE DECISION AND IT IS THE APPE LLATE DECISION ALONE WHICH SUBSISTS AND IS OPERATIVE AND CAPABLE OF ENFORCEMENT. BUT IF AN ORDER IS SPECIFICALLY NON- APPEALABLE IT WOULD REMAIN IN OPERATION ALTHOUGH AN APPEAL IN THE SAME PROCEEDINGS HAS BEEN TAKEN AND DECIDED. THUS, IF THERE IS IN LAW CO NFIRMATION OR AFFIRMANCE OF THE DECISION, IT MERGES IN THE APPELLATE ORDER. THE QUE STION WHETHER CONFIRMATION OR AFFIRMANCE RESULTS IS DEPENDENT UPON THE SCOPE AND EXTENT OF THE APPELLATE JURISDICTION. THIS WAS ALSO REITERATED IN THE DECISION IN THE CAS E OF JEEWANLAL (1929) LTD. V. ADDL. CIT [1977] 108 ITR 407 (CAL) AND THE DECISION IN TH E CASE OF PREMCHAND SITANATH ROY V. ADDL. CIT [1977]109 II'R 751 (CAL). THE ALLAHABA D HIGH COURT REITERATED THE SAME PRINCIPLE IN THE CASE OF LK. SYNTHETICS LTD. V. ADDL. CIT [1976] 105 ITR 344 (AL L). IN CIT V. EURASIA PUBLISHING HOUSE (P.) LTD. [1998] 232 ITR 381, THE JURISDICTIONAL ITA NO. 87/D/2009 10 HIGH COURT OF DELHI OBSERVED AS UNDER: 8. THERE IS NO DIFFERENCE BETWEEN AN APPELLATE AN D REVISIONAL ORDER, SO FAR AS THE APPLICABILITY OF THE DOCTRINE OF MERGER IS CONCERNE D TO AN ORDER, JUDGMENT OR DECREE HAVING BEEN SUBJECTED TO SCRUTINY OF THE APP ELLATE OR REVISIONAL JURISDICTION EXERCISED BY THE SUPERIOR AUTHORITY OR COURT OVER T HE SUBORDINATE AUTHORITY OR COURT IN AMRIT SAGAR GUPTA V. SUDESH BEHARILAL AIR 1970 SC 5 THEIR LORDSHIPS HAVE HELD THAT THE RIGHT OF APPEAL IS ONE OF ENTERI NG A SUPERIOR COURT AND INVOKING ITS AID AND INTERPOSITION TO REDRESS THE ERROR OF T HE COURT BELOW. TWO THINGS ARE REQUIRED TO CONSTITUTE THE APPELLATE JURISDICTION - (I) THE EXISTENCE OF RELATION OF SUPERIOR AND INFERIOR COURT AND (II) THE POWER ON THE PART OF THE FORMER TO REVIEW THE DECISION OF THE LATTER. WHEN THE POWER OF REVIS ION IS CONFERRED ON SUCH SUPERIOR COURT, THEN THE JURISDICTION WHICH IS BEING EXERCIS ED IS A PART OF THE GENERAL APPELLATE JURISDICTION OF THE SUPERIOR COURT IT IS ONLY ONE OF THE MODES OF EXERCISING POWER CONFERRED BY THE STATUTE; BASICALLY AND FUND A MENTALLY IT IS THE APPELLATE JURISDICTION WHICH IS BEING INVOKED IN EXERCISE IN A WIDER AND LARGER SENSE. THEIR LORDSHIPS HAVE HELD THAT THE ORDER OF THE COURT BEL OW HAVING MERGED INTO THE ORDER OF THE HIGH COURT PASSED IN EXERCISE OF REVISIONAL JURISDICTION CONFERRED BY SECTION 115 OF THE CODE 0.[ CIVIL PROCEDURE, THE WRIT JURISDICTION 0.[ THE HIGH COURT COULD NOT BE INVOKEDTO CHALLENGE THE ORDER OF THE COURT BELOW . 9. IT IS TRUE THAT THE REVISIONAL ORDER IN THE CASE AT HAND WAS PASSED BY THE COMMISSIONER WHICH IS NOT A COURT. HOWEVER, THE DIS TINCTION BETWEEN THE COURT AND THE TRIBUNAL OR THE DEPARTMENTAL AUTHORITIES EXERCI SING APPELLATE OR REVISIONAL JURISDICTION HAS BEEN LOST SO FAR AS THE APPLICABIL ITY 0.[ THE DOCTRINE 0.[ MERGER IS CONCERNED. IN S. S. RATHORE V. STATE OF MADHYA PRADESH AIR 1990 SC 10, THEIR LORDSHIPS HAVE HELD WHILE OVERRULING AN EARLIER DEC ISION OF THE SUPREME COURT IN THE CASE OF SITA RAM GAEL V. MUNICIPAL BOARD AIR 1958 SC 1036: THE DISTINCTION MADE BETWEEN COURTS AND TRIBUNALS A S REGARDS APPLICABILITY OF DOCTRINE OF MERGER IS WITHOUT ANY LEGAL JUSTIFICATI ON. POWERS OF ADJUDICATION ORDINARILY VESTED IN COURTS ARE BEING EXERCISED UNDER THE LAW BY TRIBUNALS AND OTHER CONSTITUTED AUTHORITIES. IN FACT, IN RESPECT OF MANY DISPUTES T HE JURISDICTION OF THE COURT IS NOW BARRED AND THERE IS A VESTING 0.[ JURISDICTION IN TRIBUNALS AND AUTHORITIES . ... ' (P. 11) THEIR LORDSHIPS HAVE HELD THAT WHEN THE CONDUCT RUL ES FOR GOVERNMENT SERVANTS PROVIDE FOR DEPARTMENTAL REMEDIES BY WAY 0.[ APPEAL OR REVISION, AGAINST THE ORDER OF PUNISHMENT PASSED, IT IS THE APPELLATE OR REVISIONA L ORDER IN WHICH THE ORIGINAL ORDER OF PUNISHMENT WOULD MERGE. WE SEE NO REASON TO HOLD WH Y THE SAME PRINCIPLE SHOULD NOT APPLY TO THE APPELLATE OR REVISIONAL ORDERS PASSED UNDER THE TAX LAWS INASMUCH AS THE APPELLATE OR REVISIONAL JURISDICTION CONFERRED ON S UCH SUPERIOR AUTHORITIES IS BY STATUTE AND WELL RECOGNISED. 10. WE HAVE AN ILLUMINATING JUDGMENT ON THE DOCTRIN E OF MERGER DELIVERED BY A DIVISION BENCH OF THE ANDHRA PRADESH HIGH COURT IN MIRZA MUZ AMDAR HUSSEIN V. D. BHASKARA REDDY AIR 1988 AP 13. JEEVAN REDDY J (AS HIS LORDSHIP THEN WAS) SPOKE FOR THE DIVISION BENCH, HAVING TAKEN INTO CONSIDERATION ALL THE AVAILABLE SUPREME COURT DECISIONS ON THE POINT AS ALSO THE DECISION BY THE HIGH COUR TS. 5.4 FROM THE DECISIONS CITED ABOVE, IT CAN BE SAFELY CO NCLUDED THAT AS THE QUANTUM OF TURNOVER, COMMISSION EARNED ON PROVIDING ACCOMMO DATION ENTRIES AND DEDUCTION OF EXPENSES THEREON WAS THE SUBJECT-MATTER OF APPEA L, THE ASSESSING OFFICER HAD NO JURISDICTION, IN THE FACTS AND CIRCUMSTANCES OF THI S CASE, TO ISSUE THE NOTICE UNDER SECTION 154 AND/OR TO PASS ANY ORDER ON THIS ASPECT OF THE MATTER. THIS WAS PRECISELY ITA NO. 87/D/2009 11 BECAUSE OF THE FACT THE ORIGINAL BLOCK ASSESSMENT O RDER WAS THE SUBJECT-MATTER OF AN APPEAL BEFORE THE ITA T AND HAD SUBSEQUENTLY MERGED IN THE ORDER OF THE IT AT DATED NOVEMBER 30, 2004.(REFERENCE MAY BE MADE TO P ARAS 15 TO 18 OF THE TRIBUNAL'S ORDER). IN THE VIEW OF THE ABOVE, THE PR OPER AUTHORITY TO RECTIFY ANY ERROR IN THE MATTER RELATING TO THE QUANTUM OF TURNOVER, COMMISSION EARNED ON PROVIDING ACCOMMODATION ENTRIES AND DEDUCTION OF EXPENSES THE REON COULD ONLY BE THE HORI'BLE ITA T. THEREFORE, I AM OF THE CONSIDERED V IEW THAT THE ASSESSING OFFICER'S POWER TO RECTIFY WAS NOT AVAILABLE IN RESPECT OF MA TTERS WHICH HAD BEEN CONSIDERED AND DECIDED BY THE APPELLATE AUTHORITY. BY THE SAME LOGIC, IT IS ALSO HELD THAT THE ASSESSEE WAS ALSO NOT COMPETENT TO FILE AN APPLICAT ION UNDER 154 BEFORE THE ASSESSSING OFFICER SUBSEQUENT TO THE PRONOUNCEMENT OF ORDER BY THE HON'BLE IT AT. IN VIEW OF THE ABOVE, IT IS HELD THAT THE PETITION FILED BY THE ASSESSEE ON 13.06.2005 WAS NON-EST AND THEREFORE BAD IN LAW. 5.5 AS THE PETITION FILED BY THE ASSESSEE UNDER SECTION 154 ON 13.06.2005 HAS BEEN HELD TO BE INVALID, THE APPELLANT'S OBJECTION REGAR DING THE APPLICABILITY OF SECTION 154(8) OF THE ACT IS NOT ENTERTAINED. NEEDLESS TO MENTION HERE THAT THE PROVISIONS OF SECTION 154(8) PRESCRIBE MAXIMUM SIX MONTHS' TIME FOR DISPO SAL OF RECTIFICATION APPLICATION FILED ULS 154. WITHOUT PREJUDICE TO THE FINDINGS MADE ABOVE, IT IS OBSERVED THAT WHEREAS THE LIMITATION FOR RECTIFYING THE BLOCK ASSESSMENT ORDER DATED 27-11-2002 UNDERSECTION 154 OF THE ACT EXPIRED ON 31.03.2007 IN TERMS OF SE CTION 154(7) OF THE ACT, THE ORDER OF RECTIFICATION IN TERMS OF SECTION 154, WHICH IS THE SUBJECT MATTER OF PRESENT APPEAL, WAS PASSED ON 02.02.2009. 6 . SUBJECT TO THE FINDINGS AND OBSERVATIONS MADE IN THE FOREGOING PARAS, GROUND NOS. 1 TO 3 ARE DISMISSED. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESS EE HAS FILED FURTHER APPEAL AND WHILE REITERATING THE SUBMISSIONS AS MAD E BEFORE LOWER AUTHORITIES IT WAS PLEADED FOR ALLOWING THE APPLICA TION OF THE ASSESSEE MOVED U/S 154 OF THE INCOME TAX ACT. IT WAS FURTHE R SUBMITTED THAT THE ASSESSEE COULD NOT GET RELEVANT MATERIAL DURING THE ASSESSMENT PROCEEDING OR DURING FIRST APPEAL PROCEEDINGS OR PR OCEEDING BEFORE THE ITAT AND AS AND WHEN IT GOT THE RELEVANT MATERIAL F ROM THE AO IT WAS FOUND THAT CERTAIN GLARING MISTAKES HAVE BEEN COMMITTED B Y THE AO WHILE COMPUTING THE TURNOVER AND BY FURNISHING THE RELEVA NT COPIES OF ACCOUNTS AND POINTING OUT TOWARDS REVERSAL ENTRIES IN THE BA NK ACCOUNT IT WAS PLEADED FOR RECONSIDERING THE ENTIRE ISSUE IN RELAT ION TO TURNOVER AND ITA NO. 87/D/2009 12 RELIANCE WAS ALSO PLACED ON DELHI HIGH COURT DECISI ON AS REPORTED IN 320 ITR 378 (DEL.) CIT VS. TONY ELECTRONICS LTD., 337 I TR 498 (DEL.) MITSUBISHI CORPORATION VS. CIT TO PLEAD FOR ALLOWING THE PETIT ION U/S 154 AND SO FAR AS MERGER OF THE ORDER IN CIT(A)S AND ITATS ORDER IS CONCERNED, RELIANCE WAS PLACED ON 231 ITR 50, CIT VS. SHRI ARBUDA MILLS LTD ., 236 ITR 469, CIT VS. JAYA KUMAR B PATIL, 238 ITR 683, SESHASAYEE PAPER & BOARDS LTD. VS. CIT AND IT WAS ALSO STRONGLY PLEADED THAT EARLIER APPLI CATION WAS MADE ON 13/06/2005 AND ANOTHER APPLICATION WAS MADE ON 02/1 2/2008, WHEREAS AO HAS PASSED THE ORDER ON 02/02/2009 AND THIS ASPECT OF QUANTUM OF TURNOVER HAS NOT AT ALL BEEN LOOKED INTO, THEREFORE, THIS IS A MISTAKE APPARENT FROM RECORD WHICH NEEDS RECTIFICATION. IT WAS THUS, PLE ADED FOR ALLOWING THE APPLICATION OF THE ASSESSEE AND ORDER OF THE AO MAY BE DIRECTED TO BE RECTIFIED, TO TAKE CORRECT TURNOVER IN ORDER TO DET ERMINE THE PROFIT AT THE RATE DIRECTED TO BE ADOPTED BY THE ITAT. 6. LD. DR STRONGLY OPPOSED THE APPEAL OF THE ASSESS EE AND PLEADED THAT ITAT ORDER IN THIS CASE HAS BEEN PASSED ON 30/ 11/2004 IN WHICH UNDISPUTED TURNOVER AS MENTIONED IN SAID ORDER HAS BEEN DETERMINED AND TAKEN TO WORK THE INCOME. SO APPLICATION OF THE AS SESSEE DATED 13/06/2005 COULD NOT BE MADE BEFORE THE AO AS THE O RDER OF THE AO HAS MERGED IN THE ORDER OF THE ITAT AND RIGHT COURSE FO R THE ASSESSEE, IN CASE OF ANY GRIEVANCE, WAS TO FILE APPLICATION BEFORE TH E ITAT WHICH HAS NOT ITA NO. 87/D/2009 13 BEEN DONE AND ON THE MERGER ISSUE, DELHI HIGH COURT DECISION IS AS REPORTED IN 320 ITR 328 (DEL.) CIT VS. TONY ELECTRO NICS LTD. AND 232 ITR 381 (DEL.) CIT VS. EURASIA PUBLISHING HOUSE PVT. LT D. ARE RELEVANT. IT WAS ALSO SUBMITTED THAT THE TRIBUNAL HAD AT MORE THAN O NE PLACE HAS NOT MENTIONED ABOUT DETERMINATION OF TURNOVER SO THERE CANT BE ANY DISPUTE. SO TURNOVER ADOPTED BY THE AO AND CONFIRMED BY THE TRIBUNAL CANNOT BE TINKERED WITH AND MOREOVER BANK STATEMENT BEING FIL ED AND RELIED UPON BY AR OF THE ASSESSEE IF LOOKED INTO AT THIS STAGE TO RE-DETERMINE THE TURNOVER WILL INVOLVE LONG DRAWN PROCESS OF REASONING WHICH IS OTHERWISE OUTSIDE THE PURVIEW OF SEC. 154. SINCE ORDER OF THE ASSESSMENT WAS APPEALABLE WHICH WAS APPEALED AGAINST SO IT MERGED WITH THE APPEAL O RDERS AS AO COULD NOT INTERFERE AND RELIANCE HAS BEEN PLACED ON 34 ITR 13 0 (SC) H.R. LUXMAN & COMPANY VS. ITO (AMRITSAR), 233 ITR 666(DEL.) CIT V S. PRINTERS HOUSE, 216 ITR 548 CIT VS. PAUL BROTHERS, 193 ITR 183 CIT VS. ORISSA OIL INDUSTRIES LTD. (ORISSA), 188 ITR 491 M.S.P. SPICES P. LTD. VS. CIT, TO PLEAD FOR DISMISSAL OF APPEAL OF THE ASSESSEE. 7. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E APPLICATION OF THE ASSESSEE AND RELEVANT PROVISIONS OF LAW. BEFOR E ADVERTING TO THE FACTS OF THE PRESENT CASE, IT WOULD BE RELEVANT FIRST TO DISCUSS THE PROVISIONS RELATING TO SECTION 154. A BARE LOOK AT SECTION 15 4 OF THE ACT MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT FROM THE RECOR DS IS RECTIFIABLE. IN ITA NO. 87/D/2009 14 ORDER TO ATTRACT THE APPLICATION OF SEC. 154, A MIS TAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER T O RECTIFY THE MISTAKE, HOWEVER, DOES NOT COVER CASES WHERE A REVISION OR R EVIEW OF THE ORDER IS INTENDED. MISTAKE MEANS TO TAKE OR UNDERSTAND WR ONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING, IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. APPARENT MEANS VISIBLE; CAPABLE O F BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTI FIED U/S 154 IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECT ION 154 IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL T HAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, THE AMENDME NT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSE D AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBLE UNDER THE PROVIS IONS OF SEC. 154. FURTHER, WHERE AN ERROR IS FAR FROM SELF-EVIDENT, I T CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED U/S 154 IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED B Y THE SUPREME COURT IN MASTER CONSTRUCTION CO. (P) LTD. VS. STATE OF ORISS A [1996] 17 STC 360 , AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD S HOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORA TE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO EXPRESSED IN ITA NO. 87/D/2009 15 SATYANARAYAN LAXINARAYAN HEGE VS. MALLIKARJUN BHAVA NAPPA TIRUMALE AIR 1960 SC137. IT IS TO BE NOTED THAT THE LANGUAGE US ED IN ORDER 47, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 IS DIFFERENT F ROM THE LANGUAGE USED IN SEC. 154 OF THE ACT. POWER IS GIVEN TO VARIOUS AUT HORITIES TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD IS UNDOUBTEDLY N OT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASI S OF AN ERROR APPARENT ON THE FACE OF THE RECORD. MISTAKE IS AN ORDINARY WO RD, BUT IN TAXATION LAWS, IT HAS A SPECIAL SIGNIFICANCE. IT IS NOT AN ARITHMETI CAL OR CLERICAL ERROR ALONE THAT COMES WITHIN ITS PURVIEW. IT COMPREHENDS ERRO RS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SU PPOSED TO EMANATE, ARE DISCERNED. THE WORD MISTAKE IS INHERENTLY INDEFI NITE IN SCOPE, AS WHAT MAY BE A MISTAKE FOR ONE MAY NOT BE ONE FOR ANOTHER . IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WHICH A DULY AND JUDICIOUSLY INSTRUCTE D MIND CAN FIND OUT FROM THE RECORD. IN ORDER TO ATTRACT THE POWER TO RECTI FY U/S 154 IT IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT T O BE RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM T HE RECORD. A DECISION ON THE DEBATABLE POINT OF LAW OR UNDISPUTED QUESTIO N OF FACT IS NOT A MISTAKE APPARENT FROM THEN RECORD. THE PLAIN MEANING OF TH E WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE SO EX FACIE AND IT IS IN CAPABLE OF ARGUMENT OR DEBATE. IT IS, THEREFORE, F OLLOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS ITA NO. 87/D/2009 16 WHICH REMAINS TO BE INVESTIGATED CANNOT BE CORRECTE D BY WAY OF RECTIFICATION. 8. NOW REVERTING TO THE FACTS OF THE CASE IN THE LI GHT OF RIVAL SUBMISSIONS AND CASE LAW CITED, WE FIND THAT THE ASSESSEE, THRO UGH THIS APPLICATION U/S 154 BEFORE THE AO SOUGHT RECONSIDERING AND RE-DETER MINING THE TURNOVER, WHICH WAS CONFIRMED BY THE TRIBUNAL VIDE ORDER DATE D 30.11.2004 AT 104,76,94,004/- ON WHICH THERE BEING NO DISPUTE (A S OBSERVED BY ITAT) WHICH HAS ALREADY ATTAINED FINALITY AS INCOME HAS B EEN COMPUTED AND FURTHER REDUCTION HAS BEEN ORDERED BY ITAT BY COMPU TING COMMISSION/BROKERAGE @ 0.6% ON THE TURNOVER DETERMI NED AND QUESTION OF CHANGE IN TURNOVER HAS NOT BEEN RAISED BEFORE CIT(A ) OR BEFORE ITAT IN EARLIER PROCEEDINGS BY WAY OF ANY PERMISSIBLE MODE AND, IN OUR CONSIDERED OPINION THE ACTION OF THE ASSESSEE TO SEEK INTERFER ENCE IN ALREADY SETTLED ISSUE UPTO ITAT LEVEL IS NOT PERMISSIBLE U/S 154. SINCE NO CASE HAS BEEN MADE OUT BY THE ASSESSEE FOR RECTIFICATION, IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE, THEREFORE, THE ACTION OF AUTHORITIES ON ALL THE ISSUES AS RAISED IS UPHELD BEING JUST, PROPER AND C ORRECT AND AS SUCH APPEAL OF THE ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERITS. ITA NO. 87/D/2009 17 9. AS A RESULT, THE APPEAL OF THE ASSESSEE GETS DIS MISSED. ORDER PRONOUNCED SOON AFTER THE CONCLUSION OF HEARI NG IN THE OPEN COURT 17/05/2013 SD/- SD/- (T.S. KAPOOR) (U .B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17/05/2013 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR