Sh. Umaid Mal Singhvi, JODHPUR V. ACIT, JODHPUR

MA 1/JODH/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2532 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 15-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: U C JAIN
• Keywords: Rectification of order; Document seized; Documents seized
• Section: 69

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JODHPUR BENCH: J ODHPUR ( BEFORE SHRI H ARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ) M .A. NO. 1 /JODH/201 3 (ARISING OUT OF ITA NO. 158/JODH/2011) (A.Y. 200 8 - 0 9 ) SHRI UMAID MAL SINGHVI V S ACIT, C/O. SHRI U.C. JAIN, CENTRAL CIRCLE - 2, ADVOCATE, JODHPUR. SHATRUNJAY, HARI SINGH NAGAR, PALI ROAD, JODHPUR. PAN NO. ABPPS7429D (APPELLANT) (RESPONDENT) ASSESSEE BY : - SHRI U.C. JAIN AND SHRI RAJENDRA JAIN . DEPAR TMENT BY : - SHRI O.P. MEENA - CIT - D.R. DATE OF HEARING : 19 /0 9 /201 4 DATE OF PRONOUNCEMENT : 08 / 1 0 /2014 O R D E R P E R HARI OM MARATHA, J.M. : THIS IS A MISCELLANEOUS APPLICATION (M.A.) OF THE ASSESSEE, FILED U/S 254(2) OF THE I.T. ACT REL ATING TO THE ORDER DATED 19.01.2012 OF THE APPELLATE TRIBUNAL PASSED IN ITA NO. 158/JODH/2011 (A.Y. 2008 - 09). 2 2. ACCORDING TO THIS M.A. A MISTAKE RECTIFIABLE U/S 254(2) OF THE ACT HAS CREPT IN THIS ORDER BECAUSE WHILE CONFIRMING ADDITION OF RS. 5,66,600/ - CHALLENGED VIDE GROUND NO. (5) OF THE APPEAL OF THE ASSESSEE. THESE ARE THE GROUNDS ALONG WITH REASONS TAKEN IN THIS M.A : - THE HUMBLE PETITION U/S 254(2) OF I.T. ACT 1961 FOR RECTIFICATION OF MISTAKE CREPT IN THE ORDER OF THE HON'BLE TRIBUNAL, WHILE CON FIRMING THE ADDITION OF RS. 5,66,600/ - DISPUTED BY GROUND OF APPEAL NO 5, IS ON THE FOLLOWING FACTS & GROUNDS: - 1] THAT AGGRIEVED WITH THE ORDERS PASSED BY ID CIT(A), CENTRAL, JAIPUR FOR THE ASSESSMENT YEAR 2007 - 08 & 2008 - 09 THE APPELLANT FILED APPEALS BEFO RE THE HON'BLE TRIBUNAL CHALLENGING VARIOUS ADDITIONS CONFIRMED BY THE ID CIT(A). THE REVENUE ALSO PREFERRED APPEALS AGAINST THE SAME ORDERS CHALLENGING THE RELIEF ALLOWED TO THE ASSESSEE. ALL THE FOUR APPEALS WERE DECIDED BY THE HON'BLE BENCH BY COMMON OR DER DATED 19/01/2012 IN ITA NO. 157, 158/JODH/2011 (BY ASSESSEE) AND ITA NO. 261 & 258/JODH/2011 (BY REVENUE). 2] THAT THE G.A. NO. 5 RAISED BY THE ASSESSEE'S BEFORE THE HON'BLE TRIBUNAL IN ITA NO. 158/JODH/2011 READS AS UNDER: 3 'THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE ID. CI T(A) ERRED IN SUSTAINING THE ADDITION OF RS. 5,66,600/ - MADE BY A. O. U/S 69 BEING THE DIFFERENCE BETWEEN THE UNDISCLOSED INVESTMENT AND THE AMOUNT DECLARED IN THE RETURN OF INCOME WITHOUT APPRECIATING THE FACT THAT TH E DIFFERE NCE IS ON ACCOUNT OF A VAILABILITY OF FUND WITH THE ASSESSEE OUT OF INCOME DISCLOSED AND ASSESSED IN EARLIER YEARS, RECOVERY OF OLD DEBTS AND INCOME FROM INTEREST FOR THE CURRENT PERIOD RECEIVED PRIOR TO MAKING SUCH ADVANCE AND WAS EXPLAINED WITH R EFERENCE TO SEIZED DOCUMENTS ITSELF .' THAT THE GROUND OF APPEAL NO 5 WAS DECIDED BY THE HON'BLE TRIBUNAL IN PARA NO 58 AT PAGE 45 & 46 BY HOLDING AS UNDER: '58. AFTER CON SIDERING THE ORDERS OF THE AO, L D. C IT (A) AND WRITTEN SUBMISSIONS, WE FIND NO IN FIRMI TY IN THE FINDING OF ID. CIT (A). THE CONTENTION OF THE ASSESSEE THAT IF ROTATION OF AMOUNT IS TAKEN INTO CONSIDERATION THEN THERE IS AVAILABILITY OF RS. 5,66, 600 / - FOR ADVA NCING LOANS. HOWEVER , THIS FACT HAS ALSO BEEN EXAMINED BY LD. CI T (A) AND FOUND THA T THE CONTENTION OF THE ASSESSEE WAS NOT CORRECT AND, THEREFO RE, NOT ACCEPTABLE. THE ID. CIT (A) HAS EXAMINED THE ISSUE IN DETAIL AND THEN ONLY GIVEN HIS FINDING. THE ID. CIT (A) HAS TAKEN INTO CONSIDERATION THE AVAILABILITY OF THE AMOUNT FOR ADVANCING OF L OAN AND FOUND THAT THERE WAS A SHORTAGE OF 8S. 5,66,600/ - AND ACCORDINGLY HELD THAT ORIGINALLY DECLARATION OF8S. 33,50,000/ - DURING THE COURSE OF SEARCH WAS CORRECT. THE ASSESSEE HAS OFFERED 8S. 27,83,400/ - IN THE RETURN AND REMAINING AMOUNT OF 8S. 4 5,66,60 0/ - WAS ADDED BY THE AO WHICH WAS FOUND ADDED RIGHTLY. FINDING OF ID. CIT (A) REPRODUCED SOMEWHERE ABOVE IN THIS ORDER WHICH REMAINED UNCONTROVERTED. THEREFORE, WE CONFIRM THE FINDING OF THE LD. CIT(A). THIS GROUND OF THE ASSESSEE FAILS. THAT WHILE RECORDIN G THE ABOVE FINDING THE HONBLE TRIBUNAL COMMITTED FOLLOWING MISTAKES , WHICH ARE APPARENT ON THE FACE OF RECORD AND DUE TO SUCH MISTAKES THE FINDING RECORDED IS APPARENTLY MISTAKEN AS: A] THAT THE FINDING THAT THE FINDING OF THE LD. CIT(A) GIVEN CONFIRMING T HE ADDITION OF RS. 5,66,600/ - REMAINED UNCONTROVERTED PATENTLY MISTAKEN AS THE ASSESSEE TO CHALLENGE THE FINDING HAS FURNISHED THE STATEMENT OF ROTATION OF FUNDS FROM 01/04/2007 TO 31/03/2008 WHICH WAS PREPARED ON THE BASIS OF SEIZED ANNEXURE WHICH SHOWS T HE SOURCE OF MONEY RECEIVED AND UTILIZED AND THIS CHART WHICH IS BASED ON SEIZED RECORD DISPROVES THE FINDING OF THE LD. CIT(A) AND AS SUCH THE FINDING RECORDED BY THE HON'BLE TRIBUNAL THAT THE FINDING OF LD. CIT(A) REMAINED UNCONTROVERTED IS A PATENT MIST AKE AND REQUIRES TO BE RECTIFIED . B] THAT THE ASSESSEE PROVED THE FINDING OF LD. CIT(A) AS ERRONEOUS WHILE CONFIRMIN G THE ADDITION OF RS. 5,66,600/ . THE FINDING RECORDED BY THE LD. CIT(A) WHILE CONFIRMING THE ADDITION OF RS. 5,66,600/ - IS REPRODUCED HE RE FOR SAK E 5 OF CONVENIENCE [PARA 6.2 PAGE 16 & 17OF CIT(A) ORDER], THE FINDING SO RECORDED BY THE LD. CIT(A) WAS REPRODUCED BY THE HON'BLE TRIBUNAL IN PARA 57 AT PAGE 44 & 45: 57. AFTER CONSID ERING THE SUBMISSION LD. CI T(A) CONFIRMED THE ADDITION BY RECORDING H IS FINDING IN PARA 6.2 AT PAGE 16& 17 AS UNDER: 6.2 / HAVE CONSIDERED THE SUBMISSION OF THE ID. A.R AND HAVE PERUSED THE MATERIAL ON RECORD. IT IS SEEN THAT ON BEING ASKED BY THE A.O., ABOUT NOT DISCLOSING THE WHOLE OF UNACCOUNTED ADVANCES OF RS. 33,50,000/ - , THE A.R. FURNISHED THE REPLY AND TRIED TO EXPLAIN THE SOURCE OF THESE ADVANCES PARTLY. IT WAS CLAIMED THAT THERE WAS OPENING CASH BALANCE OF RS. 15,55,000/ - WHICH INCLUDES ADVANCE OF RS. 15 LAKHS RECEIVED FROM SH. KAMA I BHANDARI, SH. PAPPU AND SH. MUNNA AG AINST SALE OF AGRICULTURAL LAND AND FURTHER RS. 4,45,000/ - WAS CLAIM ED TO BE RECEIVED FROM SH. KAIL ASH MODI. A.O. REJECTED THE CLAIM MAINLY ON THE GROUND THAT NO DOCUMENTARY EVIDENCE REGARDING MONEY RECEIVED FROM THESE THREE PERSONS WAS FURNISHED. MOREOVER , THEIR IDENTITY AND CREDITWORTHINESS WAS ALSO NOT PROVED. SIMILARLY NO EVIDENCE WAS FURNISHED REGARDI NG MONEY RECEIVED FROM SH. KAIL ASH MODI. ACCORDINGLY, A.O. REJECTED THE CLAIM AND ADDED THE DIFFERENCE AMOUNT OF RS. 5,66,600/ - . BEFORE ME, APART FROM THE AFORESAID ARGUMENTS, FURTHER ARGUMENT WAS TAKEN THAT DETAILS OF ROTATION OF FUNDS WAS PREPARED, WHEREIN INCOME AND INVESTMENT /EXPENDITURE WERE CONSIDERED AND ACCORDINGLY 6 DISCLOSURE OF ADDITIONAL INCOME OF RS. 27,83,400/ - IS CORRECT. IT IS SEEN BY THE UND ERSIGNED THAT AS FAR AS MONEY CLAIMED TO BE RECEIVED FROM AFORESAID THREE PERSONS NAMELY SH. BHANDARI, SH. PAPPU AND SH. MUNNA IS CONCERNED, AS PER THE APPELLANT'S OWN VERSION, THE MONEY WAS RETURNED BACK TO ALL THREE OF THEM ON 1.7.07, AS PER THE ADDITION AL EVIDENCE FURNISHED IN THE APPEAL FOR A. Y 2007 - 08 IN THE CASE OF APPELLANT ITSELF, WHILE EXPLAINING THE ADDITION OF RS. 15 LAKH MADE BY THE A.O.. ON THE OTHER HAND, IT IS SEEN THAT UNACCOUNTED ADVANCES TO SH. RAMCHANDRA, SH. NITESH NAHAR AMOUNTING TO RS . 12,50,000/ - WAS GIVEN ON 5.9.2007 AND UNACCOUNTED ADVANCES OFRS. 14 LAKH WAS GIVEN ON 1.11.07. ACCORDINGLY, IT IS EVIDENT THAT NO MONEY WAS AVAILABLE OUT OF THE ADVANCE RECEIVED FOR SALE OF AGRICULTURAL LAND, AS THE SAME WAS GIVEN BACK WELL BEFORE THE DA TE WHEN UNACCOUNTED ADVANCES WERE MADE TO SH. RAMCHANDRA, SH. NITESH NAHAR AND TO SH. LAI CHAND RAJPUROHIT. SIMILARLY NO EVIDENCE OF REALIZATION FROM KAIIASH MODI TO THE EXTENT OF RS. 4,45,000/ - DURING THE YEAR IS REFLECTED, AS CLAIMED. AS PER PAGE 7 OF AN N. A - LL (P.B. PAGE 158), THE REALIZATION DURING THE YEAR IS ONLY RS. 20,000/ - (RS. 10,000/ - ON 18.4.07 + RS. 10,000/ - ON 6.7.07). HENCE THE ARGUMENT SO TAKEN BY THE APPELLANT IS REJECTED. OTHER VARIOUS ARGUMENTS AND SUBMISSION MADE BY THE A.R HAS ALSO BEEN CONSIDERED AND FOUND TO BE HAVING NO FORCE. THEREFORE, THE ADDITION OF RS. 5,66,600/ - IS HEREBY CONFIRMED.' 7 C] THAT THE LD. CIT(A) REJECTED THE STATEMENT SHOWING ROTATION OF FUNDS SUBMITTED BY THE ASSESSEE ON THE FINDING THAT MONEY CLAIMED TO BE RECEIVED FROM SH. BHANDARI, SH. PAPPU AND SH. MUNNA WAS RETURNED BACK TO ALL THREE OF THEM ON 1.7.07 AND THEREFORE NO MONEY WAS AVAILABLE OUT OF THE ADVANCE RECEIVED FOR SALE OF AGRICULTURAL LAND. THE REJECTION OF THE STATEMENT SHOWING ROTATION OF FUNDS BY THE CIT (A) WAS ERRONEOUS AS IN THE STATEMENT SHOWING ROTATION OF FUNDS RETURN OF RS. 15,00,000/ - WAS CLEARLY SHOWN. D] THAT THE REJECTION OF THE STATEMENT SHOWING ROTATION OF FUNDS BY CIT(A) WAS CHALLENGED BY GROUND OF APPEAL NO 5 AND FROM PERUSAL OF STATEMENT SHOWING ROTATION OF FUNDS CLEARLY DEMONSTRATE THAT THE REJECTION OF STATEMENT OF ROTATION OF FUNDS BY LD. CIT(A) ON THE FINDING, THAT SINCE RS. 15,00,000/ - WAS RETURNED BY THE ASSESSEE, NO AMOUNT WAS AVAILABLE WITH THE ASSESSEE TO ADVANCE UNDISCLOSED ADVAN CE WAS ERRONEOUS. CONFIRMING OF SUCH FINDING OF THE LD CIT(A), WITHOUT ANY EXAMINATION OF THE STATEMENT SHOWING ROTATION OF FUND, ON THE FINDING THAT, LD. CIT(A) EXAMINED THE STATEMENT SHOWING ROTATION OF FUNDS AND THE FINDING OF LD. CIT(A) REMAINED UNCONT ROVERTED, IS A MISTAKE APPARENT ON THE FACE OF RECORD WHICH REQUIRES RECTIFICATION. 8 5] THAT IN THE CASE OF CHAMPA LA L CHOPRA VS. STATE OF RAJASTHAN [257 ITR 74 (RAJ)] HON'BLE HIGH COURT OF RAJASTHAN HELD THAT: '7. A READING OF SUB - S. (2) OF S. 254 OF T HE ACT MAKES IT CLEAR THAT ITS SCOPE AND AMBIT IS LIMITED. IT RESTRICTS TO RECTIFY THE MISTAKES APPARENT FROM THE RECORD. THUS, IN THE NORMAL COURSE, THE POWER OF RECTIFICATION CANNOT BE EXTENDED FOR RECALLING THE ENTIRE ORDER, OBVIOUSLY IT WOULD MEAN PASS ING OF A FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISLATIVE INTENT. HOWEVER, IN A GIVEN CASE WHERE THE FACTUAL MISTAKE IS SO APPARENT THAT IT BECOMES NECESSARY TO CORRECT THE SAME, THE TRIBUNAL WOULD BE JUSTIFIED IN NOT ONLY CORRECTING THE SAID MISTAK E BY WAY OF RECTIFICATION BUT IF THE JUDGMENT HAS PROCEEDED ON THE BASIS OF THAT FACT, IT WOULD BE JUSTIFIED IN RECALLING SUCH ORDER AND POSTING FOR HEARING.' IN LIGHT OF ABOVE THE DECISION RENDERED IN ITA NO. 336/JU/1999 CONTAINS MISTAKES WHICH ARE APPARE NTLY ON ITS FACE AND REQUIRES TO BE RECTIFIED BY PASSING A APPROPRIATE ORDER U/S 254(2). 2.1 BOTH PARTIES HAVE BEEN HEARD. WE HAVE CAREFULLY TRADED THROUGH THE TRIBUNAL ORDER, ALONG WITH OTHER MATERIAL ON RECORD. WE ARE CONSIDERED THAT A FACTUAL MISTAKE WHICH IS APPARENT HAS CREPT INTO THE 9 ORDER. THE ABOVE MENTIONED GROUNDS CLEARLY ESTABLISH A RECTIFIABLE MISTAKE. THEREFORE, WE RECALL THE TRIBUNAL ORDER TO THE EXTENT FOR DECIDING AFRESH GROUND NO. (5) OF ASSESSEES APPEAL WHICH HAS SUFFERED A MISTAKE OF F ACTS AS DISCUSSED ABOVE. 2.3 ACCORDINGLY, WE RECALL THE TRIBUNAL ORDER DATED 19.01.2012 RENDERED IN THIS CASE FOR FRESH DECISION OF GROUND NO. (5). TO THAT EXTENT M.A. STANDS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 08 TH OCTOBER , 2014. SD/ - SD/ - (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08 TH OCTOBER , 2014 VL / - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR SENIOR PRIVATE SECRETARY ITAT, JODHPUR