SHRI Sunny Maru, Barwani V. THE ITO, Khargone

MA 14/IND/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2986 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S N AGRAWAL
• Keywords: Peak credit

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER M.A. NO. 14/IND/2014 ARISING OUT OF ITA NO. 378/IND/2013 A.Y. 2005-06 SHRI SUNNY MARU BARWANI PAN ABPPM 5835K ::: APPLICANT VS. INCOME TAX OFFICER KHARGONE ::: RESPONDENT APPELLANT BY SHRI S.N. AGRAWAL AND SHRI PANKAJ MOGRA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 8.5. 2015 DATE OF PRONOUNCEMENT 8 . 5 .2015 O R D E R PER SHRI B.C. MEENA, AM THIS IS AN APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 FOR RECALLING OF THE ORDER DATED 25 TH OCTOBER, 2012. THE RELEVANT PARA OF THE MISCELLANEOUS APPLICATION READS AS UNDER :- 2 1. THE PRESENT MISCELLANEOUS APPLICATION IS FILED AGAINST THE ORDER OF THE HONBLE ITAT DT. 25.10.201 2 PASSED IN THE CASE OF THE ABOVE ASSESSEE FOR THE A. Y. 2005-06. 2. THE APPEAL AS FILED BY THE DEPARTMENT AND CROSS OBJECTION AS FILED BEFORE THE HONBLE ITAT AGAINST THE ORDER OF THE LD. CIT(A) DT. 27.03.2012 HAS TAKEN TH E VARIOUS GROUND OF APPEAL. 3.1 THE DEPARTMENT IN ITS APPEAL MAINLY TAKEN THE GROUND OF DELETION OF THE ADDITION MADE U/S 69A OF THE INCOME TAX ACT OF RS. 1697130/-. 3.2 THE ASSESSEE IN THE APPEAL HAS TAKEN THE CHALLENGING THE ADDITION OFRS. 200000/- MADE ON ACCOUNT OF INVESTMENT IN BUSINESS AND RS. 12370/- (RS.200000/- MINUS RS,. 76730/-) AS MADE ON ACCOUNT OF ESTIMATION OF PROFIT BY THE ASSESSING OFFICER AN D MAINTAINED BY THE LD. CIT(A). 4.1 THE HONBLE BENCH VIDE ITS ORDER DT. 25.10.2012 IN PARA 6 ON PAGE NOS. 6 & 7 HAS MAINTAINED BOTH TH E ADDITIONS AS MADE BY THE ASSESSING OFFICER AND AS MAINTAINED BY THE LD. CIT(A) IN RESPECT OF THE FOLL OWING ADDITIONS :- (A) ESTIMATING THE NET PROFIT OF THE BUSINESS AT RS . 200000/- IN PLACE OF RS.76730/-. (B) ESTIMATING THE INVESTMENT IN THE BUSINESS OF RS . 200000/-. 4.2 THAT HONBLE BENCH WHILE DECIDING THE ISSUE REGARDING DELETION OF THE ADDITION OF RS. 1697130/- AS MADE IN THE ORDER U/S 69A OF THE ACT MAINTAINED ADDITION TO THE TUNE OF RS.688802/- 5. THAT HONBLE BENCH IN PARAS 7 & 8 OF THE ORDER HAS RESTRICTED THE ADDITION OF RS. 688802/- CALCULA TED AS UNDER :- 3 A) TOTAL PEAK CREDITS 1697130 B) TOTAL WITHDRAWALS BY CHEQUES 3602485 LESS: TOTAL CREDITS BY CHEQUES 2594157 1008328 NET ADDITION 688802 6) THE ASSESSEE BEFORE THE LD. CIT(A) FILED REVISED BOOKS OF ACCOUNT INCORPORATING ALL ENTRIES IN THE B ANK ACCOUNTS WHICH WAS FORWARDED TO THE ASSESSING OFFIC ER FOR HIS COMMENTS BY THE LD. CIT(A) AND AFTER SEEKING COMMENTS, DELETED THE ENTIRE ADDITIONS AS MADE BY T HE ASSESSING OFFICER 7.1 THAT TOTAL CREDITS OF RS. 2594159/- ALSO INCLUD ES MATURITY PROCEED OF FIXED DEPOSIT OF RS.10,00,000/- WHICH WAS PREPARED IN THE LAST YEAR AND INTEREST ON FDRS OF RS. 16830/- (RS. 11220/- + RS. 5610/-). THUS, TOTAL CRE DIT OF RS. 1016830/- NOT RELATED TO THIS YEAR TRANSACTION. HENCE, THE SAID AMOUNT REQUIRES TO BE EXCLUDED FROM THE FI GURE OF TOTAL CREDIT WHILE CALCULATING CASH AS AVAILABLE OU T OF CHEQUES ISSUED BY THE ASSESSEE FOR THE PURPOSE OF H IS BUSINESS IN THIS YEAR. 7.2 THAT IN VIEW OF THE ABOVE, HONBLE BENCH IS REQUESTED TO MODIFY THE FIGURE AS CONSIDERED WHILE CALCULATING THE CASH AS AVAILABLE WITH THE ASSESSE, THE SAME IS CALCULATED AS UNDER :- A) TOTAL PEAK CREDITS 1697130 B) TOTAL WITHDRAWALS BY CHEQUES 3602485 LESS : TOTAL CREDITS BY CHEQUES 2594157 4 LESS : CREDIT ON ACCOUNT OF FDRS (ON 19.11.2004)1000000 INTEREST ON FDRS 13.11.04 11220 28.03.05 5610 16830 1577327 2025158 NET ADDITION 7.3 THAT BALANCE IN THE BANK ACCOUNT OF THE ASSESSE E AT THE END OF RS. 740746/- AS ON 31.03.2005 ALSO REPRE SENT DUE TO MATURITY PROCEED OF THE FIXED DEPOSIT OF RS.10,00,000/-. 8. THAT IN VIEW OF THE ABOVE, THE PRESENT MISCELLANEOUS APPLICATION IS BEING FILED WITH A REQ UEST TO RECTIFY THE MISTAKE APPARENT FROM RECORD. 9. THAT IN VIEW OF THE ABOVE, HONBLE BENCH IS AGAI N REQUESTED TO CONSIDER THE ENTIRE DOCUMENTS AS AVAIL ABLE BEFORE IT AT THE TIME OF HEARING AND SUITABLY MODIF Y THE ORDER DT. 25.10.2012. 2. WE HAVE HEARD BOTH THE SIDES. THE LD. DR RELIED UPON THE FOLLOWING CASE LAWS :- (1) ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 (SC) (2) CIT VS. CHHABRA GINNING UDHYOG; 303 ITR 182 (MP) (3) AGARWAL WAREHOUSING & LEASING LTD. VS. CIT; 257 ITR 235 (MP) 5 WE HAVE ALSO GONE THROUGH RECORD AVAILABLE AND CONSIDERED CASE LAWS RELIED UPON. AFTER GOING THROUG H THE RECORD AND CASE LAWS, WE HOLD THAT THE ITAT HAS POWER T O RECTIFY MISTAKE WHICH IS PATENT, MANIFEST AND SELF-EVI DENT AND WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION, EVIDENCE OR ARGUMENTS TO ESTABLISH THE SAME. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF RECORD IF O NE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEE D A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH T HERE MAY BE CONCEIVABLY TWO OPINIONS. THUS, ITAT HAS POWE R TO RECTIFY ONLY THE MISTAKES WHICH ARE PARENT, MANIFEST AND PATENT. AFTER GOING THROUGH THE MISCELLANEOUS APPLICAT ION, WE FIND THAT THE ASSESSEE HAS TRIED TO ESTABLISH THE MI STAKE WHICH IS NOT PATENT, MANIFEST AND SELF-EVIDENT. A PER USAL OF THE MISCELLANEOUS APPLICATION SHOWS THAT ACCEPTING THE 6 ASSESSEES APPLICATION SHALL DEFINITELY LEAD TO REVIEW OF THE ORDER OF THE TRIBUNAL. ITAT HAS NO POWER TO REVIEW IT S ORDER U/S 254(2) OF THE ACT. HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. CHHABRA GINNING UDHYOG; 3 03 ITR 182 HAS HELD AS UNDER :- HELD, ALLOWING THE APPEAL, THAT A POWER TO RECTIFY THE MISTAKE IN THE ORDER IS CONFINED TO ONLY THOSE ERRORS WHICH ARE APPARENT FROM THE RECORD OF THE CASE. THE POWERS UNDER SECTION 254(2) CANNOT BE EXERCISED AS A REVIEW COURT OR AS AN APPELLATE COURT SO AS TO VIRTUALLY CHANGE THE EARLIER DECISION UNLESS A GRAVE ERROR ON THE FACTS OR AT LAW FROM THE RECORDS IS APPARENT. A WELL REASONED DECISION WHICH HAD GONE IN FAVOUR OF THE REVENUE IN A REGULARLY CONSTITUTED APPEAL COULD NOT BE UPTURNED BY RECOURSE TO THE PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961. THE TRIBUNAL WHILE HEARING AN APPLICATION UNDER SECTION 254(2) COULD NOT ACT AS AN APPELLATE COURT. THE APPLICATION MADE BY THE ASSESSEE UNDER SECTION 254(2) DID NOT CONFORM TO THE REQUIREMENT OF SECTION 254(2) READ WITH RULE 34A OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, AND IT SHOULD HAVE BEEN DISMISSED. HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHT RA KUTCH STOCK EXCHANGE LIMITED (SUPRA) HELD AS UNDER :- 7 RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND TO DISTURB THE FINALITY. A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. WHERE AFTER THE APPELLATE TRIBUNAL RENDERED ITS DECISION ON APPEAL, A MISCELLANEOUS APPLICATION WAS FILED BY 8 THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961, STATING THAT A DECISION OF THE JURISDICTIONAL HIGH COURT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL : HELD THAT THERE WAS A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRED RECTIFICATION. KEEPING IN VIEW THE DECISIONS OF THE HONBLE SUPREM E COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANG E LTD. (SUPRA) AND THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CHHABRA GINNING UDHYOG (SUPRA), THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN OPEN COURT ON 8 TH MAY, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER MAY 8 TH , 2015 DN/-