Smt. Meena Agarwal, Agra V. I.T.O.-1(2), Agra

MA 15/AGR/2011

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9770 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-01-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 30-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Depreciation; Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO.15/AGR/2012 (IN ITA NO.437/AGR/2009 ASSESSMENT YEARS: 2001-02 SMT. MEENA AGARWAL, VS. INCOME TAX OFFICER 1 (2), 12/118, KATRA HATHI SHAH, AGRA. NAIU KI MANI, AGRA. (PAN : AAUPA 1181 F). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE RESPONDENTS BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 04.01.2013 DATE OF PRONOUNCEMENT : 11.01.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION (M.A.) HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER OF THIS TRIBUNAL DATED 08.04.2011 PASSED IN ITA NO.437/AGR/2009. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE REVENUE FILED APPEAL ITA NO.437/AGR/2009 ON 03.11.2009 WHICH WAS HEARD AND O RDER DATED 08.04.2011 WAS PASSED. THE GROUND RAISED IN THE APPEAL PERTAINS T O ADDITION OF RS.5,00,000/- AND RS.9,00,000/- DELETED BY THE CIT(A). THE I.T.A.T. RESTORED THE ADDITION M.A. NO.15/AGR/2011, A.Y. 2001-02 2 CONFIRMING THE ORDER OF A.O. THE ASSESSEE FILED M. A. RAISING FOUR GROUNDS ORIGINALLY BUT SUBSEQUENTLY SHE FURNISHED FURTHER M ORE GROUNDS AS ADDITIONAL GROUNDS, THUS THE TOTAL GROUNDS OF M.A. FILED ARE S IX. ON THE DATE OF HEARING, I.E. 27.04.2012, THE LD. AUTHORISED REPRESENTATIVE INFOR MED THAT THE ASSESSEE HAS FILED APPEAL AGAINST THE SAID ORDER OF THE I.T.A.T. BEFOR E THE HONBLE HIGH COURT. LD. AUTHORISED REPRESENTATIVE WAS DIRECTED TO APPRISE T HE STATUS OF THE APPEAL FILED BEFORE THE HONBLE HIGH COURT. LD. AUTHORISED REPR ESENTATIVE FURTHER SUBMITTED THAT THE APPEAL HAS BEEN WITHDRAWN VIDE CIVIL MISC. WITHDRAWAL APPLICATION NO.278782 OF 2012, ORDER DATED 19.09.2012. IN THE WITHDRAWAL APPLICATION IT WAS STATED BEFORE THE HONBLE HIGH COURT THAT AGAINST T HE ORDER OF I.T.A.T. DATED 08.04.2011 THE ASSESSEE FILED A RECTIFICATION APPLI CATION UNDER SECTION 254(2) OF THE ACT BEFORE I.T.A.T. WHICH IS PENDING. THE HONBLE HIGH COURT VIDE JUDGEMENT DATED 19.09.2012 ALLOWED THE WITHDRAWAL APPLICATION OF THE ASSESSEE. 3. THE FIRST MISTAKE POINTED OUT IN GROUND NO.2 OF M.A. IS THAT THE I.T.A.T. DID NOT APPRECIATE THE FACTS OF THE CASE AND DRAWN INFE RENCE AGAINST THE ASSESSEE THAT THE AMOUNT HAS BEEN CREDITED INTO THE BANK ACCOUNT OF THE ASSESSEE AT AGRA ON 24.03.2001 AND 26.03.2001 WHEREAS THE FACT IS THAT COPY OF BANK ACCOUNT OF THE ASSESSEE SHOWS THAT THE D.D. FOR RS.4,99,000/- AND RS.8,98,200/- WERE CREDITED INTO THE BANK ACCOUNT OF THE ASSESSEE ON 28.03.2001 AFTE R DEDUCTING THE BANK COMMISSION. M.A. NO.15/AGR/2011, A.Y. 2001-02 3 4. IN THE THIRD GROUND OF THE M.A. IT HAS BEEN SUBM ITTED THAT THE ASSESSEE MAY BE PROVIDED OPPORTUNITY TO FURNISH THE DESIRED DOCU MENTS IN SUPPORT OF THE CONTENTION OF THE ASSESSEE. 5. IN THE FOURTH GROUND OF M.A. IT HAS BEEN REQUEST ED TO RECALL THE ORDER OF I.T.A.T. 6. THE ASSESSEE IN ADDITIONAL GROUNDS HAS RENUMBERE D THE ORIGINAL GROUND OF M.A. THE GROUND NO.2 HAS GIVEN NO.1, GROUND NO.3 H AS GIVEN NO.2 AND GROUND NO.4 HAS GIVEN NO.3. THUS, GROUND NO.4 IN ADDITION AL GROUND IS THAT THE CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE BEFORE THE I .T.A.T. WAS NOT CORRECT. THE RELEVANT CONTENTION OF THE LD. DEPARTMENTAL REPRESE NTATIVE NOTED BY THE I.T.A.T. READS AS UNDER :- THE LEANED DR BEFORE US VEHEMENTLY RELIED UPON THE ORDER OF THE ASSESSING OFFICER ESPECIALLY PAGE 1 AND IT WAS POIN TED OUT THAT THE ASSESSEE HIMSELF IN THE RETURN HAS SHOWN THE ALONG TERM CAPITAL GAIN ON SALE OF SHARES, FOR WHICH THE PROCEEDS WERE RECEIVE D IN THE BANK OF RS.5,00,000/- AND RS.9,00,000/- THROUGH M/S PRECISI ON AGENCIES PVT. LTD. AND M/S RANI ENTERPRISES RESPECTIVELY AND THE ASSES SEE HIMSELF HAS SHOWN THE SALE PROCEEDS RECEIVED THROUGH M/S PRECISION AG ENCIES PVT. LTD. AND M/S RANI ENTERPRISES. THE CIT(A) WAS NOT CORRECT T O STATE THAT THE AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE FROM M/S S .K. GARG AND CO. ATTENTION WAS DRAWN TOWARDS PAGE 60 OF THE PAPER BO OK WHICH CONTAINS THE STATEMENT OF ACCOUNT OF THE ASSESSEE IN S.K. GA RG AND COMPANY AND IT WAS POINTED OUT THAT THIS IS NOT A CONFIRMATION. I T DOES NOT CONTAIN THE PERMANENT ACCOUNT NUMBER OF S.K. GARG AND COMPANY. M.A. NO.15/AGR/2011, A.Y. 2001-02 4 7. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE I.T.A.T. WHILE DECIDING THE APPEAL RELIED UPON INCORRECT ARGUMENT OF THE LD. DE PARTMENTAL REPRESENTATIVE WHICH ARE NOT BORNE OUT FROM RECORD. LD. AUTHORISE D REPRESENTATIVE SUBMITTED THAT THE LD. DEPARTMENTAL REPRESENTATIVE HAS MADE I NCORRECT SUBMISSION THAT THE ASSESSEE HIMSELF HAS SHOWN LONG TERM CAPITAL GAIN ( LTCG) ON SALE OF SHARES FOR WHICH PROCEEDS WERE RECEIVED FROM M/S. PRECISION AG ENCIES PVT. LTD. AND M/S. RANI ENTERPRISES. LD. AUTHORISED REPRESENTATIVE DR EW OUR ATTENTION ON PAGE NO.41 OF ASSESSEES PAPER BOK WHERE COPY OF COMPUTATION H AS BEEN PLACED. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT IN THE COM PUTATION OF INCOME THE ASSESSEE HAS SHOWN INCOME FROM BUSINESS RS.1,88,148 .06. THE ASSESSEE NOWHERE STATED IN THE COMPUTATION THAT THERE WAS L.T.C.G. O N SALE OF SHARES. LD. AUTHORISED REPRESENTATIVE FURTHER IN ITS CONTENTION REFERRED PAGE NO.7 OF CIT(A)S ORDER WHERE COPY OF TRADING ACCOUNT AND INCOME & EX PENDITURE HAS BEEN REPRODUCED BY THE CIT(A) WHERE N.P. OF RS.1,88,148. 06 WAS FROM SALE OF SHARES. THE ASSESSEE DID NOT SHOW ANY L.T.C.G. NEITHER IN T HE RETURN OF INCOME NOR IN THE COMPUTATION OF TOTAL INCOME NOR IN BOOKS OF ACCOUNT S OF THE ASSESSEE. THE LD. AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT T HE LD DEPARTMENTAL REPRESENTATIVE WAS NOT CORRECT IN SUBMITTING BEFORE THE I.T.A.T. THAT SALE PROCEEDS OF SHARES WERE RECEIVED FROM M/S. PRECISION AGENCIE S PVT. LTD. AND M/S. RANI ENTERPRISES WHEREAS IN FACT THE SALE CONSIDERATION OF SHARES WERE RECEIVED THROUGH M/S. S.K.GARG & CO. THE CIT(A) AT PAGE NO.7, AFTER EXAMINING THE RECORDS, RECORDED THE FACT THAT THE SALE CONSIDERATION WAS R ECEIVED FROM M/S. S.K. GARG & M.A. NO.15/AGR/2011, A.Y. 2001-02 5 CO. THE LD. AUTHORISED REPRESENTATIVE IN SUPPORT O F THIS FACT DREW OUR ATTENTION TO PAGE NO.60 OF ASSESSEES PAPER BOOK WHERE A COPY OF ACCOUNT IN THE BOOKS OF ACCOUNTS OF THE M/S. S.K. GARG & CO .HAS BEEN PLACE D WHEREIN THE SALE CONSIDERATION SHOWN TO BE PAID TO THE ASSESSEE. TH E LD. AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT THE AMOUNT OF RS.5,00,000/- AND RS.9,00,000/- AS STATED BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT IT WAS DEP OSIT ON 24.03.2001 AND 26.03.2001 RESPECTIVELY IN BANK ACCOUNT DID NOT BOR NE OUT FROM THE RECORD. THE LD. AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THA T THE I.T.A.T. HAS DECIDED ON THE BASIS OF WRONG FACT THAT THE AMOUNT OF RS.5,00, 000/- AND RS.9,00,000/- WERE RECEIVED FROM M/S. PRECISION AGENCIES PVT. LTD. AND M/S. RANI ENTERPRISES. THE CIT(A), AFTER EXAMINING THE RECORDS, HELD AS UNDER :- THERE IS NO EVIDENCE TO SHOW THAT THE APPELLANT HA D RECEIVED RS.5.00 LACS AND RS.9.00 LACS FROM M/S PRECISION IN DUSTRIES PVT. LTD. AND M/S RANI ENTERPRISES AS DISTINCT FROM AND IN AD DITION TO THE RECEIPTS OF RS.5.00 LACS AND RS.9.00 LACS FROM M/S. S.K. GARG AND CO. THEREFORE, SINCE THE IMPUGNED RECEIPTS ALREADY STAN D CREDITED TO THE SHARE TRADING ACCOUNT, SEPARATE ADDITION OF THE SAM E AMOUNTS IS NOT WARRANTED AND CONSEQUENTLY DELETED. 8. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ABOVE FINDING OF THE CIT(A) IS DULY SUPPORTED BY ANNEXURE OF RETURN FILE D BEFORE THE A.O. AND PART OF THE RECORD OF PAPER BOOK FILED BEFORE THE I.T.A.T., PAGES NOS.40, 41, 42 & 43 FILED DURING THE COURSE OF ORIGINAL HEARING BEFORE THE I. T.A.T. LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE I.T.A.T. ON THE B ASIS OF INCORRECT FACTS AND SUBMISSIONS OF THE LD. DEPARTMENTAL REPRESENTATIVE CAME TO THE CONCLUSION THAT THE M.A. NO.15/AGR/2011, A.Y. 2001-02 6 ENTRIES OF RS.5,00,000/- AND RS.9,00,000/- REFERRED TO CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE ARE DIFFERENT AMOUNT FROM THE AMOUNT R ECEIVED THROUGH M/S. S.K. GARG & CO. LD. AUTHORISED REPRESENTATIVE BY REFERR ING PAGE NO.7 OF CIT(A)S ORDER SUBMITTED THAT THE CIT(A) HAS, AFTER EXAMININ G CATEGORICALLY, HELD AS UNDER :- AS EVIDENT FROM THE ABOVE, THE TOTAL SALE OF SHARE S THROUGH S.K. GARG AND CO. IS SEEN TO BE OF RS.3,94,19,075/- WHICH INCLUDES THE IMPUGNED RECEIPTS VIDE DDS OF RS.5.00 LACS DATED 24 .03.2011 (???) AND RS.9.00 LACS DATED 26.03.2011 (???) FROM THE SA ID BROKER AGAINST SALE OF SHARES. THE SHARES TRADED BY THE APPELLANT THROUGH THE ABOVE BROKER ARE OF LISTED COMPANIES COMPRISING TATA TEA, TATA ELEXI, ICICI BANK, JINDAL STEEL AND TATA POWER. THUS, (A) THE A PPELLANT HAS NOT CLAIMED BENEFIT OF LONG TERM CAPITAL GAIN ON SALE O F SHARES, (B) THE IMPUGNED SHARES ARE OF LISTED BLUE CHIP COMPANIES, (C) THE IMPUGNED AMOUNTS HAVE APPARENTLY BEEN RECEIVED ON ACCOUNT OF SALES OF SUCH SHARES AND (D) THERE IS NO EVIDENCE TO SHOW THAT TH E APPELLANT HAD RECEIVED RS.5.00 LACS AND RS.9.00 LACS FROM M/S PRE CISION INDUSTRIES PVT. LTD. AND M/S RANI ENTERPRISES AS DISTINCT FROM AND IN ADDITION TO THE RECEIPTS OF RS.5.00 LACS AND RS.9.00 LACS FROM M/S. S.K. GARG & CO. THEREFORE, SINCE THE IMPUGNED RECEIPTS ALREADY STAND CREDITED TO THE SHARE TRADING ACCOUNT, SEPARATE ADDITION OF THE SAME AMOUNTS IS NOT WARRANTED AND CONSEQUENTLY DELETED. 9. THE LD. AUTHORISED REPRESENTATIVE IN SUPPORT OF HIS CONTENTION RELIED UPON THE FOLLOWING DECISIONS :- I) DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. MOOL CHAND SHYAM LAL, 273 ITR 160 (ALL) II) DECISION OF HONBLE MADHYA PRADESH HIGH COURT I N THE CASE OF H.H. MAHARAJA MARTANT SINGH JU DEO VS. COMMISSIONER OF I NCOME TAX, 171 ITR 586 (M.P.) III) DECISION OF HONBLE HIGH COURT OF KERALA IN TH E CASE OF CIT VS. NIRMAL LIQUORS, 190 ITR 363 (KERALA) IV) DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF ITO VS. I.T.A.T., 58 ITR 634 (ALL) M.A. NO.15/AGR/2011, A.Y. 2001-02 7 V) DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF HANUMAN RAM AUDAN RAM VS. CIT, 110 ITR 712 (ALL) VI) DECISION OF HONBLE MADRAS HIGH COURT IN THE CA SE OF L.K. SHAIK MOHAMMAD AND BROTHERS VS. CIT MADRAS, 112 ITR 622 ( MAD) VII) DECISION OF HONBLE HIGH COURT OF KERALA IN TH E CASE OF K. ASHAN KOYA AND SONS VS. CIT, 172 ITR 677 (KERALA) VIII) DECISION OF HONBLE SUPREME COURT IN THE CASE OF UDHAVDAS KEWAL RAM VS. CIT, 66 ITR 462 (SC) IX) DECISION OF HONBLE MADRAS HIGH COURT IN THE CA SE OF E.A. VENKATARAMIER & SONS VS. CIT, 65 ITR 316 (MAD) X) DECISION OF HONBLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. I.T.A.T., 172 ITR 158 (M.P.) 10. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T THE ORDER PASSED BY I.T.A.T. ON THE BASIS OF WRONG FACTS WHICH IS COVER ED UNDER SECTION 254(2) THAT THERE IS APPARENT MISTAKE IN THE ORDER OF I.T.A.T. HE ACCORDINGLY REQUESTED TO RECTIFY THE APPARENT MISTAKE BY RECALLING THE EARLI ER ORDER OF THE I.T.A.T. 11. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, SUBMITTED THAT SECTION 254(2) OF THE ACT IS APPLICABLE ONLY IN CAS ES WHERE MISTAKES ARE APPARENT ON RECORD. THE I.T.A.T. HAS GIVEN FINDING AFTER CO NSIDERING THE FACTS OF THE CASE, THEREFORE, THERE IS NO MISTAKE IN THE ORDER OF I.T. A.T. WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. M.A. NO.15/AGR/2011, A.Y. 2001-02 8 12. WE HAVE HEARD THE LD. REPRESENTATIVE OF THE PAR TIES AND RECORDS PERUSED. WE FIND FORCE IN THE SUBMISSIONS OF THE LD. AUTHORISED REPRESENTATIVE AND GROUNDS TAKEN IN THE M.A. THAT THE I.T.A.T. WHILE DECIDING THE APPEAL HAS CONSIDERED INCORRECT FACT ON THE BASIS OF SUBMISSION OF THE LD . DEPARTMENTAL REPRESENTATIVE. FROM THE RECORD IT IS EVIDENT THAT THE LD. DEPARTME NTAL REPRESENTATIVE WAS NOT CORRECT IN SUBMITTING THAT THE ASSESSEE HIMSELF HAS SHOWN L.T.C.G. IN THE RETURN OF INCOME. THE LD. AUTHORISED REPRESENTATIVE SATISFAC TORILY DEMONSTRATED BY REFERRING COMPUTATION OF TOTAL INCOME, ORDER OF CIT (A) AND BOOKS OF ACCOUNTS THAT THE ASSESSEE NEVER SHOWN L.T.C.G. ON SALE OF SHARES IN RETURN OF INCOME. THE ASSESSEE HAS SHOWN PROFIT FROM BUSINESS OF SHARES A ND THE SALE CONSIDERATION IS SHOWN AS SALE INSTEAD OF SALE CONSIDERATION ON SALE OF SHARES. TO APPRECIATE THE FACTS BETTER, WE WOULD LIKE TO REPRODUCE THE RELEVA NT PAGE NO.7 OF CIT(A)S ORDER AS UNDER :- (PAGE NO.7) SUMMARY PURCHASE SALE J.M. MUTUAL FUND 24000000.00 J.M.M.F. REDEMPTION 16381935.49 D.D. COMMISSION 2,400.00 LESS: DD COMMISSI ON 388.00 INTEREST 31,857.53 ADD- ROUND OFF 0.10 LEGAL EXP. 475.00 SALE OF SHARE S.K.G. & CO. 39419075.00 LESS: BROKERAGE REC. 335328.00 SHARE PUR. SKG & CO. 31889575.00 --------------- ----------------- 55588979.53 55800622.59 INCOME/EXPENDITURE ACCOUNT FOR THE YEAR ENDING 31.0 3.2001 PARTICULARS AMOUNT PARTICULARS AMOUNT BANK COMMISSION 15745.00 SALE OF SHARES 558 00622.59 AUDIT FEES 2100.00 LEGAL FEES 5650.00 PURCHASE OF SHARES 55588979.53 NET PROFIT 188148.06 M.A. NO.15/AGR/2011, A.Y. 2001-02 9 ___________________________________________________ ________________ 55800622.59 55800622.59 AS EVIDENT FROM THE ABOVE, THE TOTAL SALE OF SHARES THROUGH S.K. GARG AND CO. IS SEEN TO BE OF RS.3,94,19,075/- WHIC H INCLUDES THE IMPUGNED RECEIPTS VIDE DDS OF RS.5 LAC DATED 24.03. 2001 AND RS.9 LAC DATED 26.03.2001 FROM THE SAID BROKER AGAINST S ALE OF SHARES. THE SHARES TRADED BY THE APPELLANT THROUGH THE ABOVE BR OKER ARE OF LISTED COMPANIES COMPRISING TATA TEA, TATA ELEXI, ICICI BA NK, JINDAL STEEL AND TATA POWER. THUS, (A) THE APPELLANT HAS NOT CL AIMED BENEFIT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES, (B) THE I MPUGNED SHARES ARE OF LISTED BLUE-CHIP COMPANIES, (C) THE IMPUGNED AMO UNTS HAVE APPARENTLY BEEN RECEIVED ON ACCOUNT OF SALES OF SUC H SHARES AND (D) THERE IS NO EVIDENCE TO SHOW THAT THE APPELLANT HAD RECEIVED RS.5 LAC AND RS.9 LAC FROM M/S PRECISION INDUSTRIES PVT. LTD . AND M/S RANI ENTERPRISES AS DISTINCT FROM AND IN ADDITION TO THE RECEIPTS OF RS.5 LAC AND RS.9 LAC FROM M/S. S.K. GARG & CO. THEREFORE, SINCE THE IMPUGNED RECEIPTS ALREADY STAND CREDITED TO THE SHA RE TRADING ACCOUNT, SEPARATE ADDITION OF THE SAME AMOUNTS IS N OT WARRANTED AND CONSEQUENTLY DELETED. AS A CONSEQUENCE THEREOF, TH E ADDITION OF RS.21,000/- ON ACCOUNT OF BROKERAGE PRESUMED BY THE AO TO HAVE BEEN PAID FOR OBTAINING SUCH ENTRIES IS NOT SUSTAIN ABLE AND HENCE DELETED. 13. THE CIT(A) AT PAGE NO.4 RECORDED THE FACT THAT THE ASSESSEE HAS FURNISHED COMPUTATION OF TOTAL INCOME, AUDITORS REPORT, BALA NCE SHEET, INCOME & EXPENDITURE ACCOUNT AND CAPITAL ACCOUNT AND OTHER D OCUMENTS BEFORE THE A.O. IT IS ALSO RELEVANT TO STATE THAT EVEN BEFORE THE A.O. IT WAS SUBMITTED BY THE ASSESSEE THAT THE AMOUNT WAS RECEIVED FROM M/S. S.K. GARG & CO. IT WAS ALSO STATED THAT THERE IS NO ALLEGED GAIN. THE RELEVANT SUBMISSION OF THE AS SESSEE BEFORE THE A.O. FROM PAGE NO.4 OF A.O.S ORDER IS REPRODUCED AS BELOW:- ON AN ANOTHER DATED ON 25.11.2008, ASSESSEES COUN SEL AS NAMED ABOVE ATTENDED AND SUBMITTED HIS REPLY DATED 25.11.2008 AND TRIED TO EXPLAIN THE THINGS IN AIR THAT A CHEQUE OF RS.5 LAKH AND RS.9 M.A. NO.15/AGR/2011, A.Y. 2001-02 10 LAKH ARE VERIFIABLE FROM THE STATEMENT ISSUED BY M/ S S K GARG & CO. WHEREAS THE ACCOMPANYING A/C COMPUTATION FILED BY T HE ASSESSEE NOWHERE REVEALED ANY WORKING OF THE ALLEGED GAIN, H OWEVER, FROM THE PAPER FILED BY THE ASSESSEES COUNSEL THERE REMAINE D A XEROX COPY OF THE AUDITED INCOME AND EXPENDITURE. 14. THE A.O. HAS ALSO GIVEN FINDING IN THIS REGARD AT PAGE NO.5 OF OPENING FIRST LINE THAT WHERE THE INCOME IS SHOWN TO BE OUT OF S ALE-PRODUCE OF SHARES UNDER THE HEAD BUSINESS OR PROFESSION. THAT TOO COULD NOT BE ACCEPTED AS THE DEPARTMENT HAD BEEN CLEARLY SAYING THAT THERE HAD NEITHER BEEN ANY CAPITAL GAIN NOR ANY SORT OF BUSINESS WAS EVER MADE, BUT IT WAS SIMPLY AN ENTRY GAME WHICH HAS BEEN WELL UNEARTHED DURING INVESTIGATION. THUS, FROM THE FAC TS NOTED BY THE A.O., IT IS CLEAR THAT THE ASSESSEE DID NOT SHOW ANY CAPITAL GAIN RAT HER THE ASSESSEE HAS SHOWN SALE AND PURCHASE OF SHARES UNDER THE HEAD BUSINESS OR PROFESSION WHEREAS THE LD. DEPARTMENTAL REPRESENTATIVE CONTENDED BEFORE THE I. T.A.T IN ORIGINAL PROCEEDINGS THAT THE ASSESSEE HIMSELF SHOWN L.T.C.G. ON SALE OF SHARES WHICH IS APPARENTLY AN INCORRECT FACT. THE LD. AUTHORISED REPRESENTATIVE HAS ALSO POINTED OUT DETAILS REGARDING OTHER APPARENT MISTAKE AS NOTED IN LD. AU THORISED REPRESENTATIVES SUBMISSION. 15. UNDER THE FACTS AND CIRCUMSTANCES, WE NOTICE TH AT THE I.T.A.T. HAS DECIDED THE ISSUE ON THE BASIS OF INCORRECT FACTS. IT HAS ALSO BEEN NOTED THAT THE I.T.A.T. WHILE DECIDING THE ORIGINAL APPEAL HAS NOT CONSIDER ED THE MATERIALS WHICH WERE ALREADY ON RECORD. THE APEX COURT IN THE CASE OF H ONDA SIEL POWER PRODUCTS M.A. NO.15/AGR/2011, A.Y. 2001-02 11 LIMITED VS. CIT, 295 ITR 466 (SC) WHEREIN IT HAS BE EN HELD THAT NON-CONSIDERATION OF MATERIAL IS A MISTAKE APPARENT FROM RECORD AND T HE SAME IS RECTIFIABLE UNDER SECTION 254(2) OF THE ACT. THE APEX COURT HAS HELD AS UNDER :- AS STATED ABOVE, IN THIS CASE WE ARE CONCERNED WIT H THE APPLICATION UNDER SECTION 254(2) OF THE 1961 ACT. AS STATED ABOVE, THE EXPRESSION RECTIFICATION OF MISTAKE FROM THE RECOR D OCCURS IN SECTION 154. IT ALSO FINDS PLACE IN SECTION 254(2) . THE PURPOSE BEHIND THE ENACTMENT OF SECTION 254(2) IS BASED ON THE FUN DAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL, BE IT AN ASSESSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING T O DO WITH THE INHERENT POWERS OF THE TRIBUNAL. IN THE PRESENT CA SE, THE TRIBUNAL IN ITS ORDER DATED SEPTEMBER 10, 2003, ALLOWING THE RE CTIFICATION APPLICATION HAS GIVEN A FINDING THAT SAMTEL COLOR L IMITED (SUPRA) WAS CITED BEFORE IT BY THE ASSESSEE BUT THROUGH OVERSIG HT IT HAD MISSED OUT THE SAID JUDGMENT WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF ADMISSIBILITY/ALLOWABILITY OF THE C LAIM OF THE ASSESSEE FOR ENHANCED DEPRECIATION UNDER SECTION 43A. ONE O F THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO TH E TRIBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIE S APPEARING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM TH E RECORD. RULE OF PRECEDENT IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN RULE OF LAW. THAT PRINCIPLE IS NOT OBLITERATED BY SECTION 254(2) OF THE INCOME-TAX ACT, 1961. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE ERROR OR OMI SSION, THEN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR THE TRIBUNAL FOR THE WRONG COMMITTED B Y IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. I N THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWERS UNDER SECTION 254(2) WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE JUDGEMENT OF THE CO-ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNA L WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITT ED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON R ECORD. THE TRIBUNAL HAS ACKNOWLEDGED ITS MISTAKE, IT HAS ACCOR DINGLY RECTIFIED ITS ORDER. IN OUR VIEW, THE HIGH COURT WAS NOT JUSTIFI ED IN INTERFERING WITH THE SAID ORDER. WE ARE NOT GOING BY THE DOCTR INE OR CONCEPT OF INHERENT POWER. WE ARE SIMPLY PROCEEDING ON THE BA SIS THAT IF PREJUDICE HAD RESULTED TO THE PARTY, WHICH PREJUDIC E IS ATTRIBUTABLE TO M.A. NO.15/AGR/2011, A.Y. 2001-02 12 THE TRIBUNALS MISTAKE, ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE, WHICH HAD BEEN DONE IN THE PRESENT CASE. CONCLUSION FOR THE AFORESTATED REASONS, THE IMPUGNED JUDGEMENT OF THE HIGH COURT IS SET ASIDE AND THE ORDER PASSED BY THE TRIBUNAL ALLOWING THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE IS RESTORED. CONSEQUENTLY, THE APPEAL IS ALLOWED WITH NO ORDER A S TO COSTS. 16. THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. MOOL CHAND SHYAM LAL, 273 ITR 160 (ALL) WHEREIN IT HAS BEEN HE LD THAT RECORDING INCORRECT FACT AND RECALLING ORDER UNDER THAT CIRCUMSTANCES I S A CASE OF RECTIFICATION AND NOT OF REVIEW. 17. IN THE LIGHT OF THE ABOVE DISCUSSION, WE FIND T HAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF I.T.A.T. WHICH IS RECTIFIABLE UNDER SECTION 254(2) OF THE ACT. WE ACCORDINGLY RECALL THE ORDER OF I.T.A.T. DATED 08.0 4.2011 AND THE APPEAL IS FIXED FOR HEARING ON 31 ST JANUARY, 2013. 18. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* M.A. NO.15/AGR/2011, A.Y. 2001-02 13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY