The Income Tax Officer, Pathankot V. Sh. Sakun Aggarwal S/O Sh.Anil Aggarwal, Pathankot

MA 05/ASR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0464 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-07-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 15-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ GARG LD
• Assessee Lawyers: ASHWANI KALIA LD
• Keywords: Business income; Rectification of order; Opportunity of being heard
• Section: 40A(3); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. VIKRAM SINGH YADAV , ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER M.A NO.05(ASR)/2019 (ARISING OUT OF I.T.A NO.533(ASR)/2016) ASSESSMENT YEARS:2011-12 INCOME TAX OFFICER, WARD-6(3), PATHANKOT. VS. SH. SAKUN AGGARWAL S/O SH. ANIL AGGARWAL, GARDEN COLONY, PATHANKOT [PAN:AHPPA 7621P] (APPELLANT) (RESPONDENT) APPELLANT BY: SH. DHEERAJ GARG (LD. D R) RESPONDENT BY: SH. ASHWANI KALIA (LD. CA) DATE OF HEARING: 26.07.2019 DATE OF PRONOUNCEMENT: 11.09.2019 ORDER PER N.K.CHOUDHRY, JM: THE REVENUE DEPARTMENT HAS FILED THE INSTANT MISCELLANEOUS APPLICATION AGAINST THE ORDER DATED 31.07 .2017 PASSED BY THE CO-ORDINATE BENCH IN ITA NO.533/ASR/2016, BY MENTIONING THE FOLLOWING FACTS. IN THIS REGARD, IT IS SUBMITTED THAT A SURVEY WAS CONDUCTED ON 27.10.2010 AT BUSINESS PREMISES OF THE ASSESSEE WHICH LED TO SEIZURE OF CERTAIN DOCUMENTS. THE ASSES FILED RETURN OF INCOME FOR THE A.Y. 2011-12 A T AN INCOME OF RS. 61,67,219/-. AS PER DOCUMENTS SO SEIZ ED IT REVEALED THAT THE ASSESSEE HAD PURCHASED LAND MEASU RING 246.50 MARLAS VIDE AN AGREEMENT TO PURCHASE AND SUBSEQUENTLY THE LAND WAS SOLD IN THE FORM OF 12 PL OTS. ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN AMOUNTIN G TO RS.51.04 LAKH FROM THE SALE OF THE PROPERTIES AND W HICH M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 2 WAS TREATED AS BUSINESS INCOME AS THE LAND WAS SOLD BY WAY OF PLOTTING AND THAT TOO IN A VERY SHORT TIME. IT WAS THEREFORE ESTABLISHED THAT THE ASSESSEE WAS IN THE BUSINESS OF REAL ESTATE AND THE PLOTS HELD BY HIM WERE HIS S TOCK IN TRADE. SINCE THE LAND WAS PURCHASED BY THE ASSESSEE IN CASH, DISALLOWANCE AMOUNTING TO RS.1,56,87,000/- WA S MADE AND ADDED BACK TO HIS INCOME U/S 40A(3) OF THE ACT. SIMILAR ADDITION AMOUNTING RS. 1,28,60,890/- WAS MA DE IN THE CASE OF THE ASSESSEE FOR THE A.Y. 2010-11 WHICH WAS CONFIRMED BY THE CIT(A) IN APPEAL NO. 59 OF 2013-14 , HOWEVER, THE SAME WAS DELETED THE HONBLE TRIBUNAL IN ITA NO. 475(ASR)/2014 DATED 27.05.2016. THE SAID ORDER WAS CHALLENGED BY THE DEPARTMENT BY WAY OF FILING A MIS C. APPLICATION AS THE JUDGMENT RELIED UPON BY THE HON BLE ITAT I.E., ORDER OF HONBLE PUNJAB & HARYANA HIGH COURT IN ITA NO. 413 DATED 16.07.2015 HAD NOT BEEN ACCEPTED BY T HE DEPARTMENT AND A REVIEW PETITION HAS BEEN FILED BEF ORE THE HONBLE HIGH COURT OF PUNJAB & HARYANA. 2. NOW COMING TO ASSESSMENT YEAR 2011-12 ASSESS EE PREFERRED AN APPEAL BEFORE THE ID. CIT(A) AMRITSAR WHO VIDE ORDER DATED 26.07.2016 IN APPEAL NO. 34 OF 2014 HAD ALLOWED THE APPEAL OF ASSESSEE ON THE ISSUE OF DISALLOWANCE U/S 40 A(3) BY RELYING UPON HONBLE TRIBUNALS ORDER IN ITA NO. 475(ASR)/2014 IN THE CA SE OF THE ASSESSEE HIMSELF FOR THE A.Y. 2010-11. SUBSEQUE NTLY AN APPEAL WAS FILED BY THE DEPARTMENT BEFORE THE HONB LE ITAT AGAINST THE ORDER OF CIT(A). HONBLE ITAT HAS DISMISSED THE APPEAL OF REVENUE BY RELYING UPON ITS OWN JUDGMENT IN ITA NO.475(ASR) /2014 IN THE CASE OF THE ASSESSEE. WHILE RELYING UPON ITS OWN JUDGMENT HONBLE ITAT HAS NOT APPRECIATED THAT THE MISC. APPLICATION FILED BY THE REVENUE IS YET TO BE DECIDED. SINCE A MISCELLANEOUS APPLICATION WAS FILED BEFORE THE HONBLE ITAT AGAINST THE ORDER IN ITA NO. 475(ASR)/2014 THE DEPARTMENT IS FILING MISCELLANEOU S M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 3 APPLICATION FOR THE A.Y.2011-12 TOO BEFORE THE HON BLE TRIBUNAL ON THE FOLLOWING GROUNDS:- (1) THE DEPARTMENT FILED APPEAL BEFORE HONBLE ITAT AS THE LD. CIT(A)-II, AMRITSAR IN APPEAL NO 34 OF 2014 DATED 26.07.2016 HAD DELETED THE TOTAL DISALLOWANCE OF RS 1,56,87,500/- MADE BY THE A.O U/S 40A(3) OF THE INCOME TAX ACT, 1961. THE HONBLE TRIBUNAL VIDE THE ORDER MENTIONED ABOVE HAS CONFIRMED THE RELIEF BY RELYING UPON ITS OWN JUDGM ENT IN CASE OF THE ASSESSEE FOR A.Y 2010-11 IN ITA NO. 475 OF 2014 DATED 27.05.2016. IT IS TO BRING TO YOU R KIND NOTICE THAT THE ORDER OF HONBLE TRIBUNAL WAS BASED ON THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF GURDAS GARG V/S. CIT BATHINDA IN ITA NO. 413 OF 16.07.2015 WHEREIN I T WAS HELD THAT WHERE IDENTITY OF THE PAYEES WERE ESTABLISHED AND SALE DEEDS WERE EXECUTED AND GENUINENESS THEREOF WAS ACCEPTED AND THE AMOUNT OF PAYMENT IN RESPECT OF EACH SALE DEED WAS CERTIFIED BY REVENUE AUTHORITIES THE DISALLOWANCE U/S 40A(3) CANNOT BE MADE. (2) IT IS PERTINENT TO MENTION THAT THE HONBLE TRIBUNALS ORDER IN ITA NO. 475 OF 2014 DATED 27.05.2016 HAS BEEN CHALLENGED BY THE DEPARTMENT BY FILING A MISCELLANEOUS APPLICATION WHICH IS YET TO BE DECIDED. THEREFORE THE HONBLE TRIBUNAL IS HUMBLY REQUESTED TO RECALL ITS ORDER FOR THE YEAR UNDER CONSIDERATION I.E A.Y 2011-12 TILL THE MISC. APPLICATION FOR THE YEAR 2010-11 IS DECIDED. (3) IT IS FURTHER SUBMITTED THAT WHILE DELIVERING DECISION IN THE CASE OF GURDAS GARG V/S CIT BATHINDA IN ITA NO. 413 OF 2014 FOR THE ASSESSMENT YEAR 2009-10, HONBLE HIGH COURT HAD HELD THAT AS WE HAD ALREADY PRONOUNCED THE JUDGMENT IN OPEN COURT , IT IS NOT OPEN TO US AT TH IS STAGE TO EXAMINE THE EFFECT OF THE AMENDMENT TO RULE-6DD. WE M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 4 EXPRESS NO OPINION IN REGARD THERETO EXCEPT TO STAT E THAT THE RELEVANT CLAUSE APPEARS TO HAVE BEEN AMENDED. IT IS ALWAYS OPEN TO PARTIES TO ADOPT APPROPRIATE PROCEED INGS WITH REGARD THERETO. NEEDLESS TO SAY WE EXPRESS NO OPINION REGARDING ANY PROCEEDINGS THAT MAY BE ADOPTED INCLU DING FOR A REVIEW OF THE JUDGMENT. AGAINST THE ABOVE JUDGMENT OF HIGH COURT, DEPARTMEN T HAS FILED A REVIEW PETITION AND THE SAME IS STILL PENDI NG, THEREFORE, IT IS REQUESTED THAT YOUR ORDER, MENTION ED ABOVE, MAY KINDLY BE RECONSIDERED. COPY OF APPELLATE ORDER IN ITA NO.533 OF 2016 DATED 31.07.2017 FOR THE ASSESSMENT YEAR 2011-12 IS ENCLOSED FOR REFERENCE. THIS APPLICATION IS FILED ON THE DIRECTIONS OF WORTHY CHIEF COMMISSIONER OF I NCOME TAX, AMRITSAR VIDE HIS OFFICE LETTER NO. CCIT/ASR/I TO(HQ- I)/7-18/ 6066 DATED 31.10.2017. APPROVAL FOR THE DR AFT OF THE MISC. APPLICATION HAS BEEN OBTAINED FROM THE WO RTHY PR. CIT-II, AMRITSAR. 2. HAVING HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 2.1 THE GRIEVANCE OF THE REVENUE DEPARTMENT IS THAT THE HONBLE TRIBUNAL VIDE ITS ORDER DATED 31.07.2017 PASSE D IN ITA NO.533/ASR/2016 IN THE ASSESSEES OWN CASE RELEVANT TO THE ASST. YEAR: 2011-12 HAS AFFIRMED THE DELETION OF ADDIT ION OF RS.1,56,87,500/- BY THE LD. CIT(A)-2, AMRITSAR VIDE I TS ORDER DATED 26.07.2016, WHILE RELYING UPON THE CO-ORDINAT E BENCH JUDGMENT IN THE CASE OF THE ASSESSEE FOR ASST. YEAR 2010-11 (ITA NO.475/ASR/2014 DECIDED ON DATED 27.05.2017), WH ICH WAS BASED UPON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF GURDAS GARG VS. CIT, BHATINDA (ITA NO.413/ASR/ 2014 DATED 16 TH JULY, 2015) WHEREIN IT WAS HELD THAT WHERE IDENTITY OF THE PAYEES WERE ESTABLISHED AND SALE DEEDS WERE EXECUTED AND GENUINENESS THEREOF WAS ACCEPTED AND THE AMOUNT OF PAYME NT M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 5 IN RESPECT OF EACH SALE DEED WAS CERTIFIED BY REVENUE AUTHORITIES, THE DISALLOWANCE U/S 40A(3) OF THE ACT CAN NOT BE MADE. 2.3 THE LD. DR HAS SUBMITTED THAT THE ORDER DATED 27.05. 2016 PASSED IN ITA NO.475/ASR/2014, WHICH WAS RELIED UPON BY THE CO-ORDINATE BENCH IN THE INSTANT CASE HAS BEEN CHALLENGE D BY THE DEPARTMENT BY FILING THE MISC. APPLICATION WHICH IS YET TO BE DECIDED, THEREFORE, PRAYED FOR RECALLING OF ITS ORDER FOR THE YEAR UNDER CONSIDERATION I.E. ASST. YEAR 2011-12 TILL THE MI SCELLANEOUS APPLICATION FOR THE ASST. YEAR:2010-11 IS DECIDED. IT WA S FURTHER SUBMITTED BY THE LD. DR THAT EVEN THE JURISDICTIONAL H IGH COURT HAS RECALLED ITS JUDGMENT PASSED IN CASE OF GURDAS GARG V S. CIT, BATHINDA (ITA NO.413/ASR/2014 RELEVANT TO THE ASST. YE AR: 2009-10). 3. ON THE CONTRARY, IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL HAS INDEPENDENTLY DECIDED THE APPEAL UNDER CONSIDERATION AS IN THIS CASE THE ASSESSEE DID NOT MAKE ANY PAYMENT TO THE LAND OWNERS DIRECTLY BECAUSE NO PURCH ASE OF LAND HAS BEEN TRANSACTED BY THE ASSESSEE IN THE ASST. YEAR:2011-12. FURTHER THE MISC. APPLICATION NO. 53/ASR/ 2016 FILED BY THE REVENUE AUTHORITY IN ITA NO.475/ASR/201 4 RELEVANT TO THE ASST. YEAR 2010-11 HAS ALREADY BEEN DISMISSED BY T HE CO- ORDINATE BENCH VIDE ITS ORDER DATED 23.11.2017. IT WA S FURTHER SUBMITTED THAT THOUGH THE HONBLE PUNJAB & HARYANA HIG H COURT HAS RECALLED ITS ORDER IN THE CASE OF GURDAS GARG (SUPRA) HOWEVER TILL DATE NOT DECIDED ON MERIT, THEREFORE, N O ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEES CASE. M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 6 4. HAVING HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. LET US TO REPRODUCE THE RELEVANT PROVISION OF LAW AS APPLICABLE FOR RECTIFICATION OF THE ORDER ON TH E GROUND OF ANY MISTAKE APPARENT FROM THE RECORD. ORDERS OF APPELLATE TRIBUNAL 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH T HE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (1A) [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PA SSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECT ION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESS ING OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTH ERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNA L HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AN D HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D : PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTO BER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES. 4.1 FROM THE PROVISIONS OF SEC.254(2) IT IS CLEAR THAT T RIBUNAL MAY AT ANY TIME WITHIN SIX MONTHS FROM THE END OF TH E MONTH, IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFY ANY M ISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT AND SHALL MAKE SUCH AMENDMENT IN APPROPRIATE CASES. FURTHER, MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT FROM T HE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APPLICATION OF SE CTION 254(2), A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM T HE RECORD. M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 7 4.2 THE APEX COURT IN MASTER CONSTRUCTION CO. (P.) LTD. V . STATE OF ORISSA [1966] 17 STC 360 , HELD THAT: 'AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECO RD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS F OR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FA CT OR LAW'. 4.3 THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KARAM CHAND THAPAR & BR. P. LTD.,176 ITR 535 HAS HELD AS UN DER: IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENT ENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL F ACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE T RIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOU NT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT AN Y IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, U NLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE- PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT H AS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTA NCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WE RE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. 4.4 THE HON'BLE DELHI HIGH COURT IN THE CASE OF RAS BIHARI BANSAL VS. CIT 293 ITR 365, ON THE SCOPE OF RECTIFICATIO N U/S 254(2) OF THE ACT, HAS HELD AS UNDER: SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPAREN T FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT O F A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE U NDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONS IDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 8 HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER S ECTION 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLI CATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOP E OF THE SECTION. 4.5 IN CONCLUSION, CRUX OF THE PROVISIONS AND JUDGMENTS IS THA T THE SCOPE FOR RECTIFICATION OF THE ORDER IS VERY LIMITED AND DEPENDS UPON THE MISTAKE APPARENT FROM RECORD . T HE TRIBUNAL CAN ONLY RECTIFY ITS MISTAKES APPARENT FROM THE RECORD A ND THE PROVISION OF RECTIFICATION DOES NOT PERMIT THE TRIBUNAL TO REVIEW ITS EARLIER ORDER. THERE IS WIDE DIFFERENCE BETWEEN RECTIF ICATION AND REVIEW. RECTIFICATION IMPLIES CORRECTION OF ERROR AND RE MOVAL OF DEFECT OR IMPERFECTION AND WHILE EXERCISING POWER RECTIF ICATION, THE COURT CAN NOT EXERCISE THE POWER OF REVIEW OR REVISI ON. IT IS WELL SETTLED PRINCIPLE OF LAW THAT REVIEW IS CREATURE OF STATUTE AND IN ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW, EXER CISE OF POWER OF REVIEW UNDER GARB OF RECTIFICATION, MODIFICAT ION AND CORRECTION IS NOT PERMISSIBLE. THE SCOPE AND AMBIT OF THE POWER WHICH COULD BE EXERCISED UNDER SECTION 254(2) OF THE INCOM E TAX ACT 1961 IS CIRCUMSCRIBED AND RESTRICTED WITHIN THE AM BIT OF THE POWER VESTED BY THE SAID SECTION. SUCH A POWER IS NEI THER A POWER OF REVIEW NOR IS AKIN TO THE POWER OF REVISION BUT IS ONLY A POWER TO RECTIFY A MISTAKE APPARENT ON THE FACE OF THE RECORD. RECTIFICATION IMPLIES THE CORRECTION OF AN ERROR OR A R EMOVAL OF DEFECTS OR IMPERFECTIONS. IT IMPLIES AN ERROR, MISTAKE O R DEFECT WHICH AFTER RECTIFICATION IS MADE RIGHT. THEREFORE ON THE AFORESAID ANALYZATION, THE INFERENCE CAN BE DRAWN THAT THE MISTA KE APPARENT FROM RECORD CAN BE RECTIFIED BUT NOT OTHERWISE . M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 9 4.6 LET US TO PERUSE THE ORDER UNDER CONSIDERATION AS TO WHETHER ANY MISTAKE IS APPARENT FROM THE RECORD OR NOT . FOR THE SAKE OF BREVITY AND CONVENIENCE, THE CONCLUDING PART OF THE ORDER DATED 31.07.2017 PASSED BY THE CO-ORDINATE BENCH IN IT A NO.533/ASR/2016 RELEVANT TO THE ASST. YEAR: 2011-12, WHICH IS SUBJECT MATTER OF THE INSTANT MISC. APPLICATION IS REPRO DUCED HEREIN BELOW. 5. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE AS IT IS CLEAR FROM THE FACTS OF THE CASE THAT THE ASSESSEE HAD NOT MADE ANY CASH PAYMENT TO THE LAND OWNERS DIRECTLY AND THE SALE DEEDS HAVE BEEN EXECUT ED BETWEEN THE LAND OWNERS AND THE PURCHASERS DIRECTLY AS IT REFLECT FROM THE CONVEYANCE DEEDS. FURTHER, THE ASSESSEE DID NOT MAKE ANY PURCHASE OF LAND IN THE CONTROVERSY AND EVEN OTHERWISE IN THE ASSESSEES CASE QUA A.Y.2010-11 WAS DEALT WITH BY THE CO-ORDINATION BENCH OF ITAT, AMRITSAR, WHEREBY DELE TED THE ADDITION AS DISALLOWED UNDER THE SAID PROVISION. FINALLY, CONSIDERING THE OVERALL FACTS, CONCLUSION AND EFFECTS OF THE ORDER PASSED BY THE CO-ORDINATION BE NCH AS WELL AS INDEPENDENTLY APPLYING THE MIND, WE DO NOT FIND ANY INFIRMITY, IMPROPRIETY AND ILLEGALITY IN THE OR DER PASSED BY THE LD. CIT(A), THEREFORE, IT DOES NOT REQUIRE T O BE INTERFERED WITH. HENCE, THE APPEAL OF THE REVENUE STANDS DISMISSE D. FROM THE ORDER IT CLEARLY REFLECTS THAT THE CO-ORDINAT E BENCH WHILE DECIDING THE APPEAL, HAS TAKEN INTO CONSIDE RATION THE PECULIAR FACTS AND CIRCUMSTANCES SUCH AS THE ASSESSEE DID NOT MAKE ANY PURCHASE OF LAND IN CONTROVERSY AND THERE FORE NO M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 10 PAYMENT HAS BEEN MADE TO LAND OWNERS AND THE SALE DEE DS HAVE BEEN EXECUTED BETWEEN THE LAND OWNERS AND THE PURCHASER S DIRECTLY AS REFLECTS FROM THE CONVEYANCE DEEDS. THE TRIBU NAL FURTHER OBSERVED THAT EVEN OTHERWISE IN ASSESSEES CASE QUA ASST. YEAR:2010-11, WAS DEALT WITH BY THE CO-ORDINATE BENCH WHEREBY THE BENCH HAS DELETED THE SIMILAR ADDITION AS DISALLOWED UNDER THE SAID PROVISION. FINALLY THE TRIBU NAL CONCLUDED THAT CONSIDERING THE OVERALL FACTS, CONCLUSION AND EFFECTS OF THE ORDER PASSED BY THE CO-ORDINATE BENCH AS WELL AS INDEPENDENTLY APPLYING THE MIND, WE DO NOT FIND ANY IN FIRMITY, IMPROPRIETY AND ILLEGALITY IN THE ORDER PASSED BY THE LD. CIT(A), THEREFORE, IT DOES NOT REQUIRE TO BE INTERFERED WITH . 4.7 THOUGH THE REVENUE DEPARTMENT CLAIMED THAT M.A NO.53/ASR/2016 BASED ON THE SAME FACTS, FOR RECTIFICATION OF ORDER 27-05-2016 PASSED IN ITA NO.475/ASR/2014, IS YET TO BE DECIDED BY TRIBUNAL AND THEREFORE, PRAYED FOR RECALLI NG OF ORDER UNDER CHALLENGE, TILL THE DECISION ON THE SAME, HOWEVE R IT IS A FACT THAT THE TRIBUNAL VIDE ITS ORDER DATED 23.11.201 7 PASSED IN M.A NO.53/ASR/2016, HAS ALREADY DISMISSED THE APPLICATIO N FOR RECTIFICATION OF TRIBUNAL'S ORDER DATED 27.05.2016 REL EVANT TO THE ASST. YEAR:2010-11 PASSED IN THE ASSESSEES OWN CASE, WHICH WAS RELIED UPON BY THE CO-ORDINATE BENCH. FURTHER THOUGH THE JURISDICTIONAL HIGH C OURT HAS RECALLED ITS JUDGMENT PASSED IN GURDAS GARG (SUPRA) HOWEVER, TIL L DATE NOT DECIDED FINALLY, THEREFORE, AT THIS STAGE NO COGNI ZANCE CAN BE TAKEN. M.A.NO.05/ASR/2019 (A.Y.2011-12) (ARISING OUT OF ITA NO.533/ASR/2016) IT O V. SAKUN AGGARWAL 11 4.8 CONSIDERING ALL ASPECTS OF THE LAW APPLICABLE TO THE IN STANT CASE, IT IS TRITE TO SAY THAT MISTAKE MUST BE APPARENT FR OM RECORD, WHICH IN THE INSTANT CASE DOES NOT APPEAR SO BECAUSE THE CO-ORDINATE BENCH WHILE ADJUDICATING THE APPEAL UNDER CHALLENGE, THOUGH HAVE TAKEN NOTE OF ORDER 27.05.2016 PASSED BY TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE ASST. YEAR:2010-11, BUT ALSO CONSIDERED OVERALL FACTS AND JUDICIAL VERDICT OF JURISDICT IONAL HIGH COURT AS ON THE DATE OF PASSING THE ORDER AND APPLIED ITS MIND INDEPENDENTLY, THEREFORE WE DO NOT FIND ANY ERROR APPARENT FROM RECORD. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE DEPARTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.09.2019 . SD/- SD/- ( VIKRAM SINGH YADAV ) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11.09.2019 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. SAKUN AGGARWAL, S/O SH. ANIL AGGARWAL, GARDEN COLONY, PATHANKOT. (2) THE INCOME TAX OFFICER, PATHANKOT (3) THE CIT(A)-2, AMRITSAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER