DCIT, Central Circle -1(1), Ahmedabad V. Shri Deepak Budharmal Vaswani, Ahmedabad

MA 12/AHD/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3128 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-06-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 19-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Keywords: Opportunity of being heard; Reason to believe; Borrowed satisfaction; Set aside
• Section: 147; 2; 143(3); 153A; 254(2); 64; 13; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR & SHRI WASEEM AHMED, ACCOUNTANT MEMEBR Sr.No. M. A. No. Asstt.Year Appellant Respondent 1-16 M.A. Nos. 12 to 19/ Ahd/2021 In ITA No. 461/Ahd/2021 & IT(SS)A Nos. 111 to 117/Ahd/ 2021 A.Ys. 2008-09 to 2015-16 & M.A. Nos. 20 to 27/Ahd/2021 In ITA No. 807/Ahd/2019 & IT(SS)A Nos. 248 to 254/Ahd/2019 A.Ys. 2008-09 to 2015-16 The DCIT, Central Circle-1(1), Ahmedabad. Shri Deepak Kumar Vaswani 3, Rajdeep Villa Opp: Rivera-ii B/h. Chimanlal Institute, Prahaladnagar, Satellite Ahmedabad. PAN : AAPPV8625F 17-24 M.A. Nos. 28 to 35/ Ahd/2019 In ITA No. 806/Ahd/2019 & IT(SS)A Nos. 241 to 247/Ahd/ 2019 A.Ys. 2008-09 to 2015-16 The DCIT, Cent.Cir.1(1) Ahmedabad. Shri Ashok Sunderdas Vaswani 1, Rajdeep Villa Opp: Rivera-11 B/h. Chimanbhai Institute Prahalad Nagar, Satellite Ahmedabad PAN :AAOPV6849 A 25-30 M.A. Nos. 36 to 41/ Ahd/2021 In IT(SS)A Nos. 118 to 123/Ahd/2019 Asstt.Years : 2009-10 to 2014-15 The DCIT, Cent.Cir.1(1) Ahmedabad. Shri Hitesh Ashok Vaswani 1, Shree Samrat Co-op Housing Society Ltd., Opp: Rivera-11, Prahladnagar, Ahmedabad. PAN : AAOPV7214K 31-36 M.A. Nos. 42 to 47/ Ahd/2021 In IT(SS)A Nos. 130 to 135/ Ahd/2019 The DCIT, Cent.Cir.1(1) Ahmedabad Smt. Mamta Ashok Vaswani 10, Talka Nagar, Old Vadaj, M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 2 A.Ys. 2009-10 to 2014-15 Ashram Road, Ahmedabad. PAN:AAOPV6845 N 37 M.A. No. 48/Ahd/2021 In IT(SS)A No. 206/ Ahd/2019 A.Y. 2013-14 The DCIT, Cent.Cir.1(1) Ahmedabad Shri Navin Ashok Vaswani 1, Rajdeep Villa, Opp: Rivera-11 , B/h. Chimanbhai Institute, Prahalad Nagar, Ahmedabad PAN:ADYPV7316B 38-39 M.A. Nos. 49 & 50/ Ahd/2021 In IT(SS)A Nos. 204 & 205/Ahd/2019 2009-10 & 2010-11 The DCIT Cent.Cir.1(1) Ahmedabad Smt. Harsha Deepak Vaswani 3, Rajdeep Villa, Opp: Rivera-11, B/h. Chimanbhai Institute, Prahaladnagar, Ahmedabad. PAN:AAOPV 6846 R 40-45 M.A. Nos. 51 to 56/ Ahd/2021 In IT(SS)A Nos. 124 to 129/Ahd/2019 2009-10 to 2014-15 The DCIT Cent.Cir.1(1) Ahmedabad. Smt. Vanita Dilip Vaswani 2, Shree Samrat Co-op Hsg. Society Ltd., Opp: Rivera- 11, Prahladnagar Ahmedabad. PAN : AAKPV7868D 46-52 M.A. Nos. 57 to 63/ Ahd/2019 In ITA No. 805/Ahd/2019 & in IT(SS)A Nos. 235 to 240/Ahd/2019 Asstt.Year 2008-09 to 2014-15 DCIT, Cent.Cir.1(1) Ahmedabad. Shri Rajesh Sunderdas Vaswani 10, Tilak Nagar Old Vadaj, Ashram Road, Ahmedabad. PAN : AAOPV6848B 53-54 M.A. Nos. 64 & 65/Ahd2021 in IT(SS)A Nos. 278 and 279/ Ahd/2019 A.Ys. 2012-13 and 2013- 14 The DCIT Cent.Cir.1(1) Ahmedabad. M/s. Shree Sai Siddhi Corporation 901, Sapphire Complex Nr. Cargo Motors, C.G. Road, Ahmedabad. PAN : ABXFS9861M 55-59 M.A. Nos. 66 to 70/Ahd/ 2021 In IT(SS)A Nos. 280 to 284/Ahd/2019 A.Ys. : 2010-2011 to 2014-15 The DCIT Cent.Cir.1(1) Ahmedabad. M/s. Venus Township India LLP. (Formerly known as M/s. Venus Township M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 3 India Pvt. Ltd.) 801-802, Broadway Business Centre, Opp: Mayor’s Bungalow, Law Garden, Ellisbridge Ahmedabad. PAN :AAJFV2314D 60-62 M.A. Nos. 71 to 73/Ahd/ 2021 In IT(SS)A Nos. 834 to 836 /Ahd/2019 A.Ys. 2012-13 to 2014-15 The DCIT, Cent.Cir.1(1) Ahmedabad. M/s. Venus Infrabuild 801, Broadway Business Centre Opp: Mayor’s Bungalow, Law Garden, Ellisbridge, Ahmedabad PAN : AAJFV3857 F 63-69 M.A. Nos. 74 to 80/Ahd/ 2021 In IT(SS)A Nos. 228 to 234/Ahd/2019 Asstt.Year 2009-10 to 2015-16 DCIT, Cent.Cir.1(1) Ahmedbad. M/s. Venus Infrastructure & Developers P.Ltd. 801-802, Broadway Business Centre, Opp: Mayor’s Bungalow Law Garden Ellisbridge Ahmedabad. PAN : AAHCS6245J 70-71 M.A. Nos. 81 & 82/ Ahd/2021 In IT(SS)A Nos. 109 and 110/ Ahd/2019 A.Ys. :2012-13 and 2013- 14. The DCIT Cent.Cir.1(1) Ahmedabad. M/s. Sanjeet Motors Finance Pvt. Ltd. 6, Sarthi Bungalows, Prernathirth, Derasar Road, Satellite, Ahmedabad. PAN : AAMCS8522L 72-78 M.A. Nos. 83 to 89/Ahd/ 2021 In IT(SS)A Nos. 102 to 108/Ahd/2019 Asstt. Years 2009-10 to 2015-16 DCIT, Cent.Cir.1(1) Ahmedabad. M/s. Venus Infrastructure & Developers P.Ltd., 801-802, Broadway Business Centre, Opp: Mayor’s Bungalow, Law Garden, Ellisbridge M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 4 Ahmedabad. PAN : AAHCS6254J 79— 86 M.A. Nos. 98 to 105/Ahd/2021 In ITA No. 456/Ahd/2019 & IT(SS)A Nos. 94 to 104/Ahd/2019 Asstt.Year : 2008-09 to 2015-16 The DCIT, Cent.Cir.1(1) Ahmedabad. Shri Ashok Surendras Vaswani 1, Rajdeep Villa Opp: Rivera-11, B/h. Chimanbhai Institute, Prahalad Nagar, Satellite, Ahmedabad PAN : AAOPV6849A 87-94 M.A. Nos. 90 to 97/Ahd/ 2021 In ITA No. 457/Ahd/2019 & In IT(SS)A Nos. 95 to 101/Ahd/2019 Asstt. Years 2009-10 to 2015-16 The DCIT, Cir.1(1) Ahmedabad. Shri Rajesh Sunderdas Vaswani 10, Tila Nagar, Old Vadaj, Ashram Road Ahmedabad. PAN : AAOPV6848B Revenue by : Shri Abhimanyu Singh Yadav, Sr.DR & Shri Atul Pandey Sr. D.R. Assessee by : Shri Tushar Hemani, Sr. Advocate & Shri Parimalsinh. B. Parmar, & Shri Vijay Govani, A.Rs. (आदेश)/ORDER Date of hearing : 17 -06-2022 Date of Pronouncement : 24-08-2022 PER WASEEM AHMED, ACCOUTANT MEMBER: This bunch of 94 M.A’s is directed at the instance of Revenue against the common order of ITAT dated 12-11-2020 in 107 appeals in case of Venus group on the reasoning that there are mistakes apparent from record. At the outset, we note that the issues raised in different M.A’s are involving identical issues raised therein. Therefore, for the sake of brevity and convenience, we have divided all the issues raised in different M.A’s in 4 segments having identical or common issues as detailed below: M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 5 2. The first set/ segment of M.A’s having common issues are as under: S. No. M.A. Nos. In ITA Nos. A.Y. In case of Assessee 1-2 M.A No. 12 & 20/Ahd/2021 ITA No. 461 & 807/Ahd/2019 2008-09 Shri Deepak Budharmal Vaswani 3-4 M.A No. 28 & 98/Ahd/2021 ITA No. 457 & 806/Ahd/2019 2008-09 Shri Ashok Sundardas Vaswani 5-6 M.A No. 90 & 55/Ahd/2021 ITA NO 457 & 805/Ahd/2019 2008-09 Shri Rajesh Sundardas Vaswani 3. In all these M.A’s identical issue was raised by the Revenue. Therefore, we take up M.A. No. 12/AHD/2021 in ITA No. 461/AHD/2019 as lead case and proceed to decide the same. However, the finding given in such MA will apply to all the above mentioned MA Numbers falling under this segment. 4. The Revenue in this miscellaneous Application has requested to recall the order passed by the ITAT in ITA No. 461/Ahd/2019 vide order dated 12/11/2020 on the reasoning that there is mistake apparent from record within the provision of section 254(2) of the Act. 5. The Revenue in M.A. submitted that the Hon’ble ITAT erred in holding that the AO at time of recording reasons to believe for the escapement of income has not applied his mind properly. As such the AO properly applied his mind which can be established from the reasons recorded wherein he has analysed the materials found during the course search and decoded the amount relating to different assessee. Thereafter, he reached to reason to believe that the income has escaped assessment. As such, the information was received from external sources, containing ample materials, showing undisclosed income of the assessee. But there was failure on the part of the assessee to disclose the same. Thus, there is no illegality in the action of the AO in recording the reason to believe as it was formed after applying the mind. M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 6 6. The Hon’ble Tribunal also erred in holding that there was no addition made by the AO in the proceedings u/s 147 of the Act based on which the reasons to believe were recorded. As such, the addition of Rs. 55,54,940/- made on account of transaction of personal nature includes an amount of Rs. 6,86,100/- based on reason to believe recorded for escapement of income. Thus, there is factual error committed by the Hon’ble bench of Tribunal. Therefore, the ld. DR before us prayed that the order needs to be recalled under the provisions of section 254(2) of the Act. 7. On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon’ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 8. We have duly considered the rival contentions and gone through the records carefully. The provision of sub-section 2 of Section 254 of the Act has direct bearing on the controversy before us. Therefore it is imperative upon us to take note of the relevant part of section, which reads as under: “Orders of Appellate Tribunal. 254. (1) The Appellate Tribunal may, after giving both the 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 63 [six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record 64 , amend any order passed by it under sub-section (1), and 64 shall make such amendment 64 if the mistake is brought to its notice by the assessee or the 65 [Assessing] Officer : Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub- section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard” M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 7 8.1 Before we embark upon an enquiry on the facts of present case in order to find out whether there is any apparent error committed by Tribunal or not while adjudicating the appeals, we think it appropriate to bear in mind certain basic principles for exercising the powers contemplated under section 254(2) of the Act in the light of various judgments of Hon’ble Supreme Court as well as Hon’ble High Court expounding the scope of exercising powers under section 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that the power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. For fortifying this view, we make reference to the decision of the Hon’ble jurisdictional High Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ld., reported in 262 ITR 146 which has been upheld by the Hon’ble Supreme Court reported in 305 ITR 227. The Hon’ble High Court has laid down following proposition while concluding the judgment: "(a) The Tribunal has power to rectify a mistake apparent from the record on its own motion or on an application by a party under s. 254(2) of the Act; (b) An order on appeal would consist of an order made under s. 254(1) of the Act or it could be an order made under sub-s. (1) as amended by an order under sub-s. (2) of s. 254 of the Act; (c) The power of rectification is to be exercised to remove an error or correct a mistake and not for disturbing finality, the fundamental principle being that power of rectification is for justice and fair play; (d) That power of rectification can be exercised even if a mistake is committed by the Tribunal or even if a mistake has occurred at the instance of party to the appeal; (e) A mistake apparent from record should be self-evident, should not be a debatable issue, but this test might break down because judicial opinions differ and what is a mistake apparent from the record cannot be defined precisely and must be left to be determined judicially on the facts of each case; (f) Non-consideration of a judgment of the jurisdictional High Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified; M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 8 (g) After the mistake is corrected, consequential order must follow and the Tribunal has power to pass all necessary consequential orders." 8.2 In the light of the above discussion we proceed to adjudicate the issues raised by the Revenue. The 1 st fold of contention of the Revenue is that the ITAT has erred in holding that the reason to believe for escapement of income was recorded without application of mind and without specifying failure on the part of the assessee to disclose all the material facts before AO in the regular assessment. 8.3 In this regard, we note that the ITAT after elaborate discussion on the issue of reason to believe has taken a view that reason recorded by the AO was nothing but borrowed satisfaction. In holding so the ITAT analyzed the facts available on record, given various reasoning and also referred several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. reported in 133 taxmann.com 41 where in was held as under: 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 9 ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 8.4 The 2 nd grievance of the Revenue is that the ITAT erred in holding that no addition was made based on reasons to believe recorded. Again it is noted that the ITAT has considered all the materials available on record and also made comparable reference to the income identified by the AO in reasons recorded and final addition made by the AO in the assessment order passed under section 143(3) read with 147 of the Act. Thus, in our considered view, there is no mistake apparent in the order of the ITAT. At the this juncture we again feel pertinent to refer the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd (supra) where it was held that even if the order passed by the ITAT is erroneous on merit the only remedy available to the aggrieved party to prefer appeal before Hon’ble High Court. The relevant observation of the Hon’ble Supreme Court (supra) extracted as under: “Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case.” 8.5 It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon’ble High Court which has been M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 10 admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 8.6 In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore, we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 9. In the result all the M.A’s in this segment filed by the Revenue are hereby dismissed. 10. Coming to the next set/ segment of M.A’s having common issues are as under: S. No. M.A. Nos. In IT(SS) Nos. A.Y. In case of Assessee 1-7 M.A No. 13 to 19/Ahd/2021 IT(SS) No. 111 to 117/Ahd/2019 2009-10 to 2015-16 Deepak Budharmal Vaswani 8-14 M.A No. 21 to 27/Ahd/2021 IT(SS) No. 248 to 254/Ahd/2019 2009-10 to 2015-16 Deepak Budharmal Vaswani 15-21 M.A No. 29 & 35/Ahd/2021 IT(SS) NO 241 & 247/Ahd/2019 2009-10 to 2015-16 Ashok Sundardas Vaswani 22-28 M.A No. 99 & 105/Ahd/2021 IT(SS) NO 88 & 94/Ahd/2019 2009-10 to 2015-16 Ashok Sundardas Vaswani 29-31 M.A No 91 to 93/Ahd/2021 IT(SS) No. 95 to 97/Ahd/2019 2009-10 to 2011-12 Rajesh Sundardas Vaswani 32-34 M.A No 58 to 60/Ahd/2021 IT(SS) No. 235 to 237/Ahd/2019 2009-10 to 2011-12 Rajesh Sundardas Vaswani 35-41 M.A No. 74 to 80/Ahd/2021 IT(SS) No. 228 to 234/Ahd/2019 2009-10 to 2015-16 Venus Infra & Dev. P. Ltd 42-48 M.A No. 83 to 89/Ahd/2021 IT(SS) No. 102 to 108/Ahd/2019 2009-10 to 2015-16 Venus Infra & Dev. P. Ltd 49-50 M.A 81 to 82/Ahd/2021 IT(SS) No. 109 to 110/Ahd/2019 2012-13 to 2013-14 Sanjeet Motors Finance P. Ltd M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 11 11. In all these M.A’s identical issues were raised by the Revenue. Therefore, we take up M.A. No. 13/AHD/2021 in IT(SS)A No. 111/AHD/2019 as lead case and proceed to decide the same. However, the finding given in such MA will apply to all the above mentioned MA Numbers falling under this segment. 12. The Revenue in these miscellaneous applications have pointed out certain errors in the order of the ITAT which are apparent from record as detailed below: i. The ITAT in its order has held that there cannot be any addition during the search proceedings in the assessment framed under section 153A of the Act until and unless such addition is based on the incriminating materials found during the course of search from the premises of the assessee. In holding so the ITAT has relied on the judgement of Hon’ble Gujarat High Court in the case of Saumya Construction P. Ltd reported in 387 ITR 529 and Hon’ble Delhi High Court in the case of Kabul Chawala reported in 380 ITR 573. However, the principles laid down by the Hon’ble Courts nowhere restricts the addition based on incriminating material found from the premises of the concerned assessee only. As such, the documents were found of incriminating nature from the premise which was controlled by the searched group and the assessee was directly belonging to the searched group. ii. The finding of the ITAT that the Revenue to prolong the search has passed the prohibitory orders under section 132(3) of the Act is totally misplaced and which is against the principles laid down by the Hon’ble Supreme Court in the case of the VLS Finance Ltd versus CIT reported in 384 ITR 1. But the ITAT inadvertently has misinterpreted the impugned judgement of the Hon’ble Supreme Court. M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 12 iii. The last Panchnama was drawn in the month of May 2015 whereas the ITAT inadvertently has taken the same as March 2015 for calculating the Limitation period of passing the assessment order. iv. The locker No. 58, in the name of Shri Deepak Vaswani, maintained with bank of Maharashtra, SG Highway, wherefrom unaccounted jewellery of Rs. 2,48,400.00 was recovered. But the ITAT inadvertently has given a finding that such locker was not in the name of the assessee. 12.1 In view of the above, the learned DR before us contended that the order of the ITAT suffers from apparent mistakes and therefore, the same needs to be recalled within the provisions of section 254(2) of the Act. 12.2 On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon’ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 13. We have duly considered the rival contentions and gone through the records carefully. It is settled position of law that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. In this regard, an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A’s. M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 13 13.1 In the light of the above discussion we proceed to adjudicate the issues raised by the Revenue. The 1 st fold of contention of the Revenue is that the ITAT has erred in holding that in the proceeding under section 153A of Act addition or disallowance can only be made on the basis of incriminating material found in the course of search and in holding so ITAT misinterpreted the judgment of Hon’ble Gujarat High Court in case of Saumya Construction (P) Ltd. (supra) and the judgment of Hon’ble Delhi High Court in case of Kabul Chawla (supra). 13.2 In this regard, we note that the ITAT after elaborate discussion on the issue of assessment in case of search proceeding has taken a view that in the proceeding under section 153A of the Act, the addition to total income can only be made on the basis of material found from the premises of the assessee. In holding so, the ITAT analyses the facts available on record, gives various reasoning and also refers several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. (supra). 14. The 2 nd grievance of the Revenue is that the ITAT erred in holding that prohibitory order under section 132(2) was passed to prolong the search proceeding and thereby taken last date of panchnama drawn in March 2015 instead May 2015 which is in contrast to the decision of Hon’ble Supreme Court in case of VLS Finance Ltd (supra). The ITAT further erred in holding that the locker against which prohibitory order under section 132(2) was passed was not belonging to assessee. 15. Again it is noted that the ITAT has considered all the materials available on record and the ITAT also analyses the decision of Hon’ble SC in case of VLS Finance Ltd M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 14 (supra) and after making reference to other judgment of Hon’ble High Court held that principles laid down by the Hon’ble SC are not applicable to the facts on the hand. Thus, in our considered view, there is no mistake apparent in the order of the ITAT. At the this juncture we again feel pertinent to refer the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd (supra) where it was held that even if the order passed by the ITAT is erroneous on merit, the only remedy available to the aggrieved party is to prefer an appeal before Hon’ble High Court. The relevant observation of the Hon’ble Supreme Court (supra) extracted as under: “Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case.” 16. It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon’ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 17. In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 18. In the result all the M.A’s in this segment filed by the Revenue are hereby dismissed. 19. Coming to the next set/segment of M.A’s filed by the Revenue having common issues are as under: M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 15 S. No. M.A. Nos. In IT(SS) Nos. A.Y. In case of Assessee 1-6 M.A No. 36 to 41/Ahd/2021 IT(SS) No. 118 to 123/Ahd/2019 2009-10 to 2014-15 Hitesh Ashok Vaswani 7-12 M.A No. 42 to 47/Ahd/2021 IT(SS) No. 130 to 135/Ahd/2019 2009-10 to 2014-15 Mamta Ashok Vaswani 13 M.A No 48/Ahd/2021 IT(SS) No. 206/Ahd.2019 2013-14 Navin Ashok Vaswani 14-15 M.A No. 49 to 50/Ahd/2021 IT(SS) No. 204 to 205/Ahd/2019 2009-10 to 2010-11 Harsha Deepak Vaswani 16-21 M.A No. 51 to 56/Ahd/2021 IT(SS) No. 124 to 129/Ahd/2019 2009-10 to 2014-15 Vanita Dilip Vaswani 22-23 M.A No. 64 to 65/Ahd/2021 IT(SS) No. 278 to 279/Ahd/2019 2012-13 to 2013-14 Shri Sai Siddhi Corporation 24-28 M.A No. 66 to 70/Ahd/2021 IT(SS) No. 280 to 284/Ahd/2019 2010-11 to 2014-15 Venus Township India P. Ltd 29-31 M.A No. 71 to 73/Ahd/2021 IT(SS) No. 834 to 836/Ahd/2019 2012-13 to 2014-15 Venus Infra Build P. Ltd 20. In all these M.A’s. identical issues were raised by the Revenue. Therefore, we take up M.A. No. 36/AHD/2021 in ITA No. 118/AHD/2019 as lead case and proceed to decide the same. However, the finding given in such MA will apply to all the above mentioned MA Numbers falling under this segment. 21. The Revenue in these miscellaneous applications have pointed out certain errors in the order of the ITAT which are apparent from record as detailed below: It was submitted by the Revenue that the ITAT has erred in holding that the documents seized from the search premises were not belonging to the assessee. On the contrary, the satisfaction note clearly records that the seized documents show the payment against the purchase of the land. In fact the land was purchased by the assessee and the payment for the same was also made through the banking channel which can be verified from the bank statement of the assessee. In view of the above, the learned DR M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 16 before us contended that the order of the ITAT suffers from apparent mistakes and therefore, the same needs to be recalled within the provisions of section 254(2) of the Act. 22. On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon’ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 23. We have duly considered the rival contentions and gone through the records carefully. It is settled position of law that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. In this regard an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A’s. 23.1 In the light of the above discussion we proceed to adjudicate the issues raised by the Revenue. The grievance of the Revenue is that the ITAT has erred in holding that materials found during the search on the basis of which proceedings under section 153C of the Act were initiated, were not belonging to the assessee. However from prima facie perusal of satisfaction note it revealed that the materials seized belong to the assessee. In this regard the tribunal also erred in not considering the decision of Hon’ble Jurisdictional high court in case of Kamlesh Dharamshi Patel vs. CIT reported in 31 taxmann.com 50 where it was held that the relation and reference of seized material M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 17 to the assesse is to be seen in the light of language of satisfaction note. The ITAT further erred in not directly applying the order of tribunal in case of Anilkumar Gopikisan Aggarwal against which department is in appeal and not considering the judgment of Hon’ble Delhi High Court in case of Kabul Chawla (supra) where the term undisclosed income is defined 23.2 In this regard, we note that the ITAT after elaborate discussion on the issue whether search materials belong to assessee or not, has taken a view that such materials do not belong to the assessee. In holding so the ITAT analyses the fact available on record, gives various reasoning and also refer the several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. (supra). 23.3 It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon’ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 23.4 In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 24. In the result, all the M.A’s in this segment filed by the Revenue are hereby dismissed. M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 18 25. Coming to the next set of M.A’s having common issue are as under: S. No. M.A. Nos. In IT(SS) Nos. A.Y. In case of Assessee 1-4 M.A No. 94 to 97/Ahd/2021 IT(SS) No. 98 to 101/Ahd/2019 2012-13 to 2015-16 Rajesh Sunderdas Vaswani 5-7 M.A No. 61 to 63/Ahd/2021 IT(SS) No. 238 to 240/Ahd/2019 2012-13 to 2014-15 Rajesh Sunderdas Vaswani 26. In all these M.A’s. identical issues were raised by the Revenue. Therefore, we take up M.A. No. 94/AHD/2021 in ITA No. 98/AHD/2019 as lead case and proceed to decide the same. However, the finding given in such MA will apply to all the above mentioned MA Numbers falling under this segment. 27. The Revenue in these miscellaneous applications have pointed out certain errors in the order of the ITAT which are apparent from record as detailed below: 27.1 The ITAT in its order has held that there cannot be any addition during the search proceedings in the assessment framed under section 153A of the Act until and unless such addition is based on the incriminating materials found during the course of search from the premises of the assessee. In holding so the ITAT has relied on the judgement of Hon’ble Gujarat High Court in the case of Saumya Construction P. Ltd reported in 387 ITR 529 and Hon’ble Delhi High Court in the case of Kabul Chawala reported in 380 ITR 573. However, the principles laid down by the Hon’ble Courts nowhere restricts the addition based on incriminating material found from the premises of the concerned assessee only. As such, the documents were found of incriminating nature from the premise which was controlled by the searched group and the assessee was directly belonging to the searched group. 28. It was also pointed out in the miscellaneous application by the revenue that the concept of incriminating materials does not arise with respect to the assessment years M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 19 which got abated or the search year. In other words, the informations/documents received from the other sources can also be used for the purpose of the additions with respect to abated assessment years/ search year. However, the ITAT without considering the facts have decided the issue in favour of the assessee. Accordingly, the order of the ITAT suffers from the mistake apparent from record and therefore the order of the ITAT should be recalled for fresh adjudication within the meaning of the provisions of section 254(2) of the Act. 29. On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon’ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 30. We have heard the rival contentions of both the parties and perused the materials available on record. It is settled position of law that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. In this regard, an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A’s. 30.1 In the light of the above discussion we proceed to adjudicate the issues raised by the Revenue. The 1 st fold of contention of the Revenue is that the ITAT has erred in holding that in the proceeding under section 153A of Act addition or disallowance can only be made on the basis of incriminating material found in the course of search and in M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 20 holding so ITAT misinterpreted the judgment of Hon’ble Gujarat High Court in case of Saumya Construction (P) Ltd. (supra) and the judgment of Hon’ble Delhi High Court in case of Kabul Chawla (supra). 30.2 In this regard, we note that the ITAT after elaborate discussion on the issue of assessment in case of search proceeding has taken a view that in the proceeding under section 153A of the Act, the addition to total income can only be made on the basis of material found from the premises of the assessee. In holding so, the ITAT analyses the facts available on record, gives various reasoning and also refers several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. (supra). 30.3 With respect to the contention of the revenue that there were certain assessment years which were abated and therefore the documents/ the information received from other sources can be used again the assessee, we note that there was no such argument advanced by the learned DR of the assessee at the time of hearing. The finding in the impugned appeals were given by the ITAT that the documents found from the premises of the 3 rd party can be used against the assessee either under the proceedings under section 153C or 147 of the Act. As such, the issue of abated or unabated assessment years were not arising as evident from the finding of the ITAT with respect to the captioned appeals. Accordingly, there cannot be any question for deciding the issue whether there is apparent mistake in the order of the ITAT with respect to the issue on abated/unabated assessment years. M.A. Nos. 12 to 19/Ahd/2021 . & Ors. (Shri Deepak Kumar Vasvani & Ors.) 21 30.4 It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon’ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 30.5 In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 31. In the result all the M.A’s in this segment filed by the Revenue are hereby dismissed. 32. In the combined result, all 94 M.A’s filed by the Revenue are hereby dismissed. Order pronounced in Open Court on 24 - 08- 2022 Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad: Dated 24.08.2022 True Copy S. K. Sinha Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) – 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER Deputy/Asstt.Registrar ITAT, Ahmedabad