Asstt.commissioner of Income -tax -Circle 2(2), Nagpur V. Shri Rajendra Kumar Agrawal, Nagpur

MA 15/NAG/2011

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1518 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1999-2000
• Appeal Filed On: 05-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITI JAIN DAS
• Assessee Lawyers: S C THAKAR; C J THAKAR
• Keywords: Unexplained cash credit; Income from undisclosed sources; Question of law; Tax effect
• Section: 68

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL- E-BENCH, NAGPUR !' ' # ' /THROUGH VIDEO CONFERENCE AT MUMBAI $ $ $ $ % %% % & && & . . , #' #' #' #' % %% % (')* (')* (')* (')* , ' '' ' . . BEFORE S/SH.H.L.KARWA,PRESIDENT AND RAJENDRA,ACCOUNTANT MEMBER MA NO.06/NAG/2011(ARISING OUT OF IT(SS)A. NO. 118/N AG/2007)-ASSESSMENT YEAR 1999-2000 ACIT, CIRCLE 2(2), NAGPUR VS. SHRI KAMAL KUMAR AGRAWAL, 918,920, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1043D ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.07/NAG/2011(ARISING OUT OF IT(SS) A. NO. 119/NAG/2007)-ASSESSMENT YEAR 2000-2001 ACIT, CIRCLE 2(2),NAGPUR VS. SHRI KAMAL KUMAR AGRAWAL, 918,920, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1043D ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.08/NAG/2011(ARISING OUT OF IT(SS )A. NO. 120/NAG/2007)-ASSESSMENT YEAR 2001-2002 ACIT, CIRCLE 2(2),NAGPUR VS. SHRI KAMAL KUMAR AGRAWAL, 918,920, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1043D ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.09/NAG/2011(ARISING OUT OF IT(SS) A. NO.121/NAG/2007)-ASSESSMENT YEAR 2002-2003 ACIT, CIRCLE 2(2), NAGPUR VS. SHRI KAMAL KUMAR AGRAWAL, 918,920, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1043D ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.10/NAG/2011(ARISING OUT OF IT(SS) A. NO.122/NAG/2007)-ASSESSMENT YEAR 2003-2004 ACIT, CIRCLE 2(2), NAGPUR VS. SHRI KAMAL KUMAR AGRAWAL, 918,920, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1043D ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.11/NAG/2011(ARISING OUT OF IT(SS )A. NO.123/NAG/2007)-ASSESSMENT YEAR 2001-2002 2 M.A.NOS. 06/NAG/2011 & 24 ORS. KAMAL KUMAR AGRAWAL & ORS. ACIT, CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR. VS. SHRI SUSHILKUMAR AGRAWAL, (INDL.) 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1045F ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.12/NAG/2011(ARISING OUT OF IT(SS)A . NO.124/NAG/2007)-ASSESSMENT YEAR 2002-2003 ACIT, CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR VS. SHRI SUSHILKUMAR AGRAWAL, (INDL.) 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1045F ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.13/MUM/2011(ARISING OUT OF IT(SS)A . NO.125/NAG/2007)-ASSESSMENT YEAR 2003-2004 ACIT, CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR. VS. SHRI SUSHILKUMAR AGRAWAL, (INDL.) 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1045F ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.14/NAG/2011(ARISING OUT OF IT(SS )A. NO.251/NAG/2007)-ASSESSMENT YEAR 2003-2004 ACIT, CENTRAL CIRCLE 2(2), R.NO. 412, AAYAKAR BHAVAN, NAGPUR VS. SHRI RAJENDRA AGRAWAL, (INDL.), 918, 920, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1041B ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.15/NAG/2011(ARISING OUT OF IT(SS )A. NO.114/NAG/2007)-ASSESSMENT YEAR 1999-2000 ACIT, CENTRAL CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR VS. SHRI RAJENDRA AGRAWAL, (INDL.), 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1041B ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.16/NAG/2011(ARISING OUT OF IT(SS )A. NO.115/NAG/2007)-ASSESSMENT YEAR 2000-2001 ACIT, CENTRAL CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR VS. SHRI RAJENDRA AGRAWAL, (INDL.), 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1041B ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.17/NAG/2011(ARISING OUT OF IT(SS )A. NO.116/NAG/2007)-ASSESSMENT YEAR 2001-2002 ACIT, CENTRAL CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL SHRI RAJENDRA AGRAWAL, (INDL.), 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR 3 M.A.NOS. 06/NAG/2011 & 24 ORS. KAMAL KUMAR AGRAWAL & ORS. LINES, NAGPUR VS. PAN: ABFPA1041B ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.18/NAG/2011(ARISING OUT OF IT(SS)A . NO.117/NAG/2007)-ASSESSMENT YEAR 2002-2003 ACIT, CENTRAL CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR VS. SHRI RAJENDRA AGRAWAL, (INDL.), 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1041B ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.19/NAG/2011(ARISING OUT OF IT(SS)A. NO.111/NAG/2007)-ASSESSMENT YEAR 2001-2002 ACIT, CENTRAL CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR VS. SHRI SHIVKISHAN AGRAWAL, (INDL.), 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1044E ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.20/NAG/2011(ARISING OUT OF IT(SS)A . NO.112/NAG/2007)-ASSESSMENT YEAR 2002-2003 ACIT, CENTRAL CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR VS. SHRI SHIVKISHAN AGRAWAL, (INDL.), 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1044E ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.21/NAG/2011(ARISING OUT OF IT(SS)A . NO.113/NAG/2007)-ASSESSMENT YEAR 2003-2004 ACIT, CENTRAL CIRCLE 2(2), R.NO. 410, 3 RD FLOOR, AAYAKAR BHAVAN, TELANGKHEDI RD. CIVIL LINES, NAGPUR VS. SHRI SHIVKISHAN AGRAWAL, (INDL.), 918, DESHPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1044E ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.01/MUM/2012(ARISING OUT OF IT(SS)A. NO.141/NAG/2007)-ASSESSMENT YEAR 2002-2003 ACIT, CIRCLE 2(2),NAGPUR VS. KOMAL AGRAWAL, 918,920, DESPANDE LAYOUT, WARDHAMAN NAGAR,NAGPUR. PAN: ABFPA1045F ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.02/MUM/2012(ARISING OUT OF IT(SS)A. NO.142/NAG/2007)-ASSESSMENT YEAR 2003-2004 ACIT, CIRCLE 2(2), NAGPUR VS. KOMAL AGRAWAL, 918,920, DESPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR. PAN: ABFPA1045F 4 M.A.NOS. 06/NAG/2011 & 24 ORS. KAMAL KUMAR AGRAWAL & ORS. ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.03/NAG/2012(ARISING OUT OF IT(SS)A. NO.143/NAG/2007)-ASSESSMENT YEAR 2001-2002 ACIT, CIRCLE 2(2), NAGPUR VS. CHUNKIDEVI AGRAWAL,918,920, DESPANDE LAYOUT, WARDHAMAN NAGAR,NAGPUR PAN: ABFPA1045F ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.04/NAG/2012(ARISING OUT OF IT(SS)A. NO.144/NAG/2007)-ASSESSMENT YEAR 2002-2003 ACIT, CIRCLE 2(2),NAGPUR VS. CHUNKIDEVI AGRAWAL,918,920, DESPANDE LAYOUT, WARDHAMAN NAGAR,NAGPUR PAN: ABFPA1045F ( +, / APPELLANT ) ( -.+, / RESPONDENT ) MA NO.05/NAG/2012(ARISING OUT OF IT(SS)A. NO.145/NAG/2007)-ASSESSMENT YEAR 2004-2005 ACIT, CIRCLE 2(2), NAGPUR VS. CHUNKIDEVI AGRAWAL, 918,920, DESPANDE LAYOUT, WARDHAMAN NAGAR, NAGPUR PAN: ABFPA1045F ( +, / APPELLANT ) ( -.+, / RESPONDENT) MA NO.06/NAG/2012(ARISING OUT OF IT(SS)A. N O.139/NAG/2007)-ASSESSMENT YEAR 2003-2004 ACIT, CIRCLE 4, ROOM NO. 408, AAYAKAR BHAWAN,NAGPUR VS. NEERAJ DISTRIBUTION PVT. LTD. NAGPUR. PAN: AABCN5485G ( +, / APPELLANT ) ( -.+, / RESPONDENT MA NO.07/NAG/2012(ARISING OUT OF IT(SS)A. NO.140/NAG/2007)-ASSESSMENT YEAR 2005-2006 ACIT, CIRCLE 4, ROOM NO. 408, AAYAKAR BHAWAN, NAGPUR VS. NEERAJ DISTRIBUTION PVT. LTD. NAGPUR PAN: AABCN5485G ( +, / APPELLANT ) ( -.+, / RESPONDENT) MA NO.08/NAG/2012(ARISING OUT OF IT(SS)A. NO.133/NAG/2007)-ASSESSMENT YEAR 2003-2004 ACIT, CIRCLE 4, ROOM NO. 408, AAYAKAR BHAWAN,NAGPUR VS. AVIN DEVELOPERS PVT. LTD. NAGPUR PAN: AADCA8124B ( +, / APPELLANT ) ( -.+, / RESPONDENT) MA NO.09/NAG/2012(ARISING OUT OF IT(SS)A. N O.146/NAG/2007)-ASSESSMENT YEAR 2003-2004 5 M.A.NOS. 06/NAG/2011 & 24 ORS. KAMAL KUMAR AGRAWAL & ORS. ACIT, CIRCLE 4, ROOM NO. 408, AAYAKAR BHAWAN, NAGPUR VS. HALDIRAM DEVELOPERS PVT. LTD., ITWARI, NAGPUR. PAN: AABCH1365B ( +, / APPELLANT ) ( -.+, / RESPONDENT REVENUE BY : PRITI JAIN DAS ASSESSEE BY : C.J.THAKAR & S.C. THAKAR /0 / DATE OF HEARING : 2 1- 01 -201 4 12 /0 /DATE OF PRONOUNCEMENT : 24- 01 -201 4 , 1961 254 )1( ' '' ' )/$/ )/$/ )/$/ )/$/ 3'4 3'4 3'4 3'4 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM - ' ' ' ' 35 35 35 35 , (')* (')* (')* (')* ' '' ' : THIS IS A BUNCH OF 25 MISCELLANEOUS APPLICATIONS(MA S) FILED BY THE ASSESSING OFFICERS(AOS)IN THE CASES OF ASSESSEES OF HALDIRAM GROUP.AS IDENTIC AL SUBMISSIONS HAVE BEEN MADE IN THESE MAS.BY THE AOS,THEREFORE SAME ARE BEING DISPOSED OF THROUGH A SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. MA/0 6 /2011-KAMAL KUMAR AGARWAL-BRIEF HISTORY OF THE CASE : 2. AN ACTION U/S.132 OF THE ACT WAS CARRIED OUT AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE MEMBERS OF AGARWAL GROUP,ON 20.01.2005,INCLUDING IN THE CASE OF KAMAL KUMAR AGARWAL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO FOUN D THAT THE ASSESSEE HAD SHOWN LONG TERM CAPITAL GAINS(LTCG) FROM SALE OF SHARES,THAT THE TR ANSACTIONS CARRIED OUT BY THE ASSESSEE WERE OFF MARKET TRANSACTION.AFTER MAKING INQUIRIES IN THIS R EGARD AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE,AO HELD THAT SO CALLED SALE PROCEEDS OF THE SHARES WERE TO BE TAXED AS INCOME FROM UNDISCLOSED SOURCES U/S.68 OF THE ACT.ASSESSSEE PRE FERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA),WHO ALLOWED THE APPEAL FILED BY THE ASSESSEE.AO CHALLENGED THE ORDER OF THE FAA BEFORE THE TRIBUNAL.VIDE ITS ORDER 24.07.2009 T RIBUNAL DISMISSED THE APPEAL FILED BY THE AO. 3. VIDE HIS MA.,DATED 05.12.2011,AO HAS SUBMITTED THAT OFF MARKET TRANSACTIONS WERE BOGUS TRAN - SACTIONS,THAT STATEMENTS OF BROKERS PROVED NON-GENU INENESS OF THE TRANSANCTIONS,THAT PREPON- DERANCE OF PROBABILITY INDICATED A WELL CONCERNED A TTEMPT BY THE ASSESSEE GROUP TO CONVERT ITS UNACCOUNTED MONEY IN TO LTCG,THAT FACTS HAD NOT BEE N PROPERLY APPRECIATED BY THE TRIBUNAL, THAT THERE WERE APPARENT MISTAKES IN THE ORDER OF THE TR IBUNAL AND SAME HAD TO BE RECTIFIED BY RECALLING THE ORDER DATED 24.07.2009. 3.1. BEFORE US,DEPARTMENTAL REPRESENTATIVE(DR)SUBMITTED THAT DEPARTMENT HAD NO OBJECTION IF MATTER WAS DECIDED ON MERITS.AUTHORISED REPRESENTAT IVE(AR)SUBMITTED THAT MATTER HAD ATTAINED FINALITY AFTER THE ORDERS OF THE HONBLE HIGH COURT AND THE APEX COURT. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT AN APPEAL WAS FILED BY THE DEPARTMENT BEFORE THE HONBLE NAGP UR BENCH OF THE HIGH COURT CHALLENGING THE ORDER OF THE TRIBUNAL.AFTER CONSIDERING THE SUBMISS IONS OF BOTH THE PARTIES HONBLE HIGH COURT DECIDED THE ISSUE OF OFF MARKET SHARES IN FAVOUR OF THE ASSESSEE,AFTER GIVING THE BACKGROUND OF THE APPEALS FILED BY THE DEPARTMENT,IN THE FOLLOWING MA NNER: BY A COMMON ORDER DATED 24.07.2010 WHICH IS IMPUGNE D IN THESE APPEALS,THE INCOME TAX APPELLATE TRIBUNAL HAD DISPOSED OF 70 APPEALS FILED BY THE REVENUE ALTHOUGH THE IMPUGNED ORDER 6 M.A.NOS. 06/NAG/2011 & 24 ORS. KAMAL KUMAR AGRAWAL & ORS. OF THE INCOME TAX APPELLATE TRIBUNAL RELATES TO 70 ASSESSEES,THE REVENUE HAS FILED APPEALS UNDER SECTION 260-A OF THE INCOME TAX ACT, 1961 ONLY IN R ESPECT OF 43 ASSESSEES. IN RESPECT OF THE REMAINING 27 ASSESSEES, NO APPEALS HAVE BEEN FILED. TO A QUERY RAISED BY THE COURT REGARDING THE ABOVE DISCREPANCY, LEARNED COUNSEL FOR THE REVENUE STATED THAT OUT OF 27 ASSESSEES, IN CASE OF 8 ASSESSEES,APPEALS HAVE NOT BEEN FILED IN VIEW OF TH E SMALL TAX EFFECT AND IN THE REMAINING 19 CASES, THE APPEALS HAVE NOT BEEN FILED BECAUSE THE CONCERN ED COMMISSIONER OF INCOME TAX WAS OF THE OPINION THAT NO SUBSTANTIAL QUESTION OF LAW ARISES OUT OF THE COMMON ORDER OF THE TRIBUNAL DATED 24/7/2009. 3)IN RESPONSE TO A FURTHER QUERY AS TO WHY THE REVE NUE CONSIDERS THESE 43 APPEALS TO BE DIFFERENT FROM 19 CASES WHERE APPEALS HAVE NOT BEEN FILED, TH E LEARNED COUNSEL FOR THE REVENUE FAIRLY STATED THAT HE DOES NOT FIND ANY DIFFERENCE IN ANY OF THE APPEALS AND SUBMITTED THAT LACK OF COORDINATION BETWEEN DIFFERENT COMMISSIONERATES HAS RESULTED IN FILING APPEALS IN SOME CASES AND NOT FILING APPEALS IN OTHER CASES, EVEN THOUGH THERE IS A COMM ON ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL. THE LEARNED COUNSEL FOR THE REVENUE WHILE CONCEDING THAT HE IS NOT IN A POSITION TO FIND FAULT WITH THE REASONING GIVEN BY THE INCOME TAX AP PELLATE TRIBUNAL IN DELETING THE ADDITIONS MADE BY THE ASSESSEES, SUBMITTED THAT THESE APPEALS BE DECIDED ON MERITS IN THE LIGHT OF THE FINDINGS RECORDED BY THE ASSESSING OFFICER AND DECI SION OF THE APEX COURT IN SUMATI DAYAL V COMMISSIONER OF INCOME TAX REPORTED IN {1995} 80 TAXMAN 89 (SC). 4)IN ALL THESE CASES, THE ASSESSEES HAD CLAIMED/OFF ERED LONG TERM CAPITAL GAINS ON SALE OF SHARES OF VARIOUS LISTED COMPANIES, WHICH WERE ALL ACCEPTED B Y UNDISCLOSED SOURCES UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 8)ON APPEAL FILED BY THE ASSESSEEE, THE COMMISSIONE R OF INCOME TAX (A) BY HIS ORDER DATED19/4/2007 HELD THAT SECTION 68 OF THE ACT IS N OT APPLICABLE TO THE FACTS OF THE PRESENT CASE AND ACCORDINGLY DELETED THE ADDITION BY FOLLOWING HIS D ECISION IN THE CASE OF KAMAI KUMAR AGRAWAL FOR THE ASSESSMENT YEAR 2002-03. 9. ON FURTHER APPEAL FILED BY THE REVENUE, THE INCO ME TAX APPELLATE TRIBUNAL BY A COMMON ORDER DATED 24/7/2009 DISMISSED ALL THE 70 APPEALS FILED BY THE REVENUE, THE LEAD MATTER BEING THE APPEAL AGAINST KAMAL KUMAR AGRAWAL (INDIVIDUAL) CHALLENGIN G THE AFORESAID ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, DATED 24/7/2009, THESE 43 APPEA LS HAVE BEEN FILED BY THE REVENUE AND NO APPEALS HAVE BEEN FILED IN THE REMAINING CASES. IT IS PERTINENT TO NOTE THAT THE REVENUE HAS ACCEPTED THE DECISION OF THE TRIBUNAL IN THE CASE OF KAMAL K UMAR AGRAWAL (INDIVIDUAL), WHICH IS THE LEAD MATTER. 10) THE SOLE CONTENTION RAISED BY THE REVENUE IN TH ESE APPEALS IS THAT THE ENTIRE LONG TERM CAPITAL GAINS CLAIMED BY THE ASSESSEE REPRESENT UNDISCLOSED INCOME OF THE ASSESSEE BECAUSE:- A) MOST OF THE SALES OF THE SHARES EFFECTED BY THE GROUP ARE OF THE SAME COMPANIES AND THROUGH THE SAME BROKERS LOCATED AT CALCUTTA, (B)PRADEEP KUMAR DAGA, THE PRINCIPAL BROKER HAS CON FIRMED THAT THE TRANSACTIONS WITH THE HALDIRAM GROUP ARE SHAM AND EXPLAINED THE MODUS OPERANDI AS FOLLOWS: (C)THE SALE TRANSACTIONS WERE OFF MARKET TRANSACTIO NS AND THE CALCUTTA STOCK EXCHANGE BY ITS LETTER DATED 26/5/2005 HAS CONFIRMED THAT QU ITE A FEW OF THE TRANSACTIONS CARRIED OUT BY SHRI PRADEEP KUMAR DAGA WERE NOT BORNE ON TH E RECORDS OF THE EXCHANGE AND THAT THE DETAILS NOTED ON SOME OF THE OTHER CONTRAC T NOTES DID NOT MATCH . (D)THERE WERE UNEXPLAINED CASH CREDITS IN SOME OF T HE BUYERS BANK ACCOUNTS PRIOR TO ISSUANCE OF CHEQUES TO THE ASSESSEES. 11) WE SEE NO MERIT IN THE ABOVE CONTENTIONS. THE F ACT THAT THE ASSESSEES IN THE GROUP HAVE PURCHASED AND SOLD SHARES OF SIMILAR COMPANIES THRO UGH THE SAME BROKER CANNOT BE A GROUND TO HOLD THAT THE TRANSACTIONS ARE SHAM AND BOGUS, ESPE CIALLY WHEN DOCUMENTARY EVIDENCE WAS PRODUCED TO ESTABLISH THE GENUINENESS OF THE CLAIM. 12) FROM THE DOCUMENTS PRODUCED BEFORE US, WHICH WE RE ALSO IN POSSESSION OF THE ASSESSING OFFICER, IT IS SEEN THAT THE SHARES IN QUESTION WER E IN FACT PURCHASED BY THE ASSESSEES ON THE RESPECTIVE DATES AND THE COMPANY HAS CONFIRMED TO H AVE HANDEDVER THE SHARES PURCHASED BY THE ASSESSEES SIMILARLY, THE SALE OF THE SHARES TO THE RESPECTIVE BUYERS IS ALSO ESTABLISHED BY PRODUCING DOCUMENTARY EVIDENCE. IT IS TRUE THAT SOME OF THE T RANSACTIONS WERE OFF-MARKET TRANSACTIONS. HOWEVER THE PURCHASE AND SALE PRICE OF THE SHARES D ECLARED BY THE ASSESSEES WERE IN CONFORMITY WITH THE MARKET RATES PREVAILING ON THE RESPECTIVE DATES AS IS SEEN FROM THE DOCUMENTS FURNISHED BY 7 M.A.NOS. 06/NAG/2011 & 24 ORS. KAMAL KUMAR AGRAWAL & ORS. THE ASSESSEES THEREFORE, THE FACT THAT THE SAME OF THE TRANSACTIONS WERE OFF MARKET TRANSACTIONS CANNOT BE A GROUND TO TREAT THE TRANSACTIONS AS SHA M TRANSACTIONS. 13) THE STATEMENT OF PRADEEP KUMAR DAGA THAT THE TR ANSACTIONS WITH THE HALDIRAM GROUP WERE BOGUS HAS BEEN DEMONSTRATED TO BE WRONG BY PRO DUCING DOCUMENTARY EVIDENCE TO THE EFFECT THAT THE SHARES SOLD BY THE ASSESSES WERE IN CONSON ANCE WITH THE MARKET PRICE. ON PERUSAL OF THOSE DOCUMENTARY EVIDENCE, THE TRIBUNAL HAS ARRIVED AT A FINDING OF TACT THAT THE TRANSACTIONS WERE GENUINE NOTHING IS BROUGHT TO OUR NOTICE THAT THE F INDINGS RECORDED BY THE TRIBUNAL ARE CONTRARY TO THE DOCUMENTARY EVIDENCE ON RECORD. 14) THE TRIBUNAL HAS FURTHER RECORDED A FINDING OF FACT THAT THE CASH CREDITS IN THE BANK ACCOUNTS OF SOME OF THE BUYERS OF SHARES CANNOT BE LINKED TO THE ASSESSEES. MOREOVER, IN THE LIGHT OF THE DOCUMENTARY EVIDENCE ADDUCED TO SHOW THAT THE SHARE S PURCHASED AND SOLD BY THE ASSESSEES WERE IN CONFORMITY WITH THE MARKET PRICE, THE TRIBUNAL R ECORDED A FINDING OF FACT THAT THE CASH CREDITS IN THE BUYERS BANK ACCOUNTS CANNOT BE ATTRIBUTED TO T HE ASSESSEES NO FAULT CAN BE FOUND WITH THE ABOVE FINDING RECORDED BY THE TRIBUNAL. 15)RELIANCE PLACED BY THE COUNSEL FOR THE REVENUE O N THE DECISION OF THE APEX COURT IN THE CASE OF SUMATI DAYAL (SUPRA) IS WHOLLY MISPLACED. IN THAT C ASE, THE ASSESSEE THERE HAD CLAIMED INCOME FROM HORSE RACES AND THE FINDING OF FACT RECORDED W AS THAT THE ASSESSEE THEREIN HAD NOT PARTICIPATED IN THE RACES, BUT PURCHASED WINNING TI CKETS AFTER THE RACE WITH THE UNACCOUNTED MONEY. IN THE PRESENT CASE, THE DOCUMENTARY EVIDENC E CLEARLY SHOWS THAT THE TRANSACTIONS WERE AT THE RATE PREVAILING IN THE STOCK MARKET AND THERE W AS NO QUESTION OF INTRODUCING UNACCOUNTED MONEY BY THE ASSESSEES. THUS, THE DECISION RELIED U PON BY THE COUNSEL FOR THE REVENUE IS WHOLLY DISTINGUISHABLE ON FACTS. 16)FOR ALL THE AFORESAID REASONS, WE HOLD THAT THE DECISION OF THE TRIBUNAL IS BASED ON FINDING OF FACTS. NO SUBSTANTIAL QUESTION OF LAW ARISES FROM T HE ORDER OF THE TRIBUNAL. ACCORDINGLY, ALL THESE APPEALS ARE DISMISSED. SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT,AGAI NST THE ORDER OF THE HONBLE HIGH COURT,BEFORE THE HONBLE SUPREME COURT WAS DISMISSED ON 08.08.20 11. FROM THE SEQUENCE OF EVENTS IT IS CLEAR THAT THE OR DER OF THE TRIBUNAL HAS ATTAINED FINALITY AND THERE IS NO SCOPE OF ANY INTERVENTION BY US.IN OUR OPINIO N,ONCE THE MATTER WAS DECIDED BY THE HONBLE HIGH COURT ON 23.10.2010 BY A DETAILED AND REASONED ORDER IT CANNOT BE SAID THAT BECAUSE OF NON APPRECIATION OF FACTS OR MISAPPRECIATION OF FACTS O RDER OF THE TRIBUNAL IS SUFFERING FROM APPARENT MISTAKES AND SAME HAVE TO BE RECTIFIED. 5 AS PER THE SETTLED PRINCIPLE OF TAXATION JURISPRUDE NCE A PATENT,MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVID ENCE OR ARGUMENTS TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE APPLYING PROVISIONS OF SECTION 254(2) OF THE ACT.IN OTHER WORDS AN ERROR C ANNOT BE SAID TO BE APPARENT FROM THE RECORD,IF ONE HAD TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT WAS CORRECT OR NOT ? AN ERROR APPARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH T HERE MIGHT BE CONCEIVABLY TWO OPINIONS.IT IS ALSO SAID THAT IF THE VIEW ACCEPTED BY THE TRIBUNAL IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS,THE MATTER CANNOT BE RECTIFIED U/S. 254 (2)OF THE ACT. WE ARE OF THE OPINION UNDER THESE PROVISIONS,IT IS NOT PERMISSIBLE FOR THE PETITIONER TO CONTEND THAT THE APPELLATE ORDER WAS VITIATED ON THE GROUND THAT THE TRIBUNAL FAILED TO DISCUSS ALL THE CONTENTIONS RAISED BY COUNSEL BEFORE IT AND TO GIVE REASONS FOR COMING TO THE CONCLUSION OR NOT APPRECIATED THE SUBMISSIONS IN RIGHT PRESPECTIVE.IF ASSESSEE FINDS AN ORDER DEFECTIVE ON ANY OF THESE GROUNDS, THE REMEDY LAY ELSEWHERE,AND NOT BY WAY OF A MISCELLANEOUS APPLICATION. IN OUR OPINION,TRIBUNAL IS A CREATURE OF THE STATUTE AND I T IS NOT BEEN VESTED WITH THE REVIEW JURISDICTION. IN OTHER WORDS,IT DOES NOT HAVE ANY POWER TO REVIEW ITS ORDERS.WHAT ASSESSEE DESIRES,IN THE CASE UNDER CONSIDERATION,IS REVIEW OF THE ORDER OF THE T RIBUBAL PASSED ON 24.07.2009.AS PER THE HONBLE MUMBAI HIGH COURT,THE POWER OF RECTIFICATIO N AVAILABLE TO THE TRIBUNAL U/S.254(2) OF THE ACT,CANNOT BE EXERCISED ON FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION ,BECAUSE IT IS A N ERROR OF JUDGMENT AND NOT AN ERROR APPARENT ON 8 M.A.NOS. 06/NAG/2011 & 24 ORS. KAMAL KUMAR AGRAWAL & ORS. THE RECORD (203 ITR 497AND 323 ITR 577).AS THERE IS NO MISTAKE APPARENT FROM THE RECORD WE REJECT THE MA FILED BY THE AO. AS A RESULT,MA FILED BY THE AO STANDS DISMISSED. MA./7 TO 21/ OF 2011 AND 1 TO 9 OF 2012 / 6. AS THE FACTS OF ALL THE ABOVE MAS.ARE IDENTICAL TO THE FACTS OF THE MA OF KAMAL KUMAR AGARWAL,THEREFORE FOLLOWING THE ORDER PASSED IN HIS CASE WE DISMISS THE REMAINING 24(TWENTY FOUR) MAS. FILED BY THE AO. WE ARE AT PAINS TO OBSERVE THAT THERE WAS NO LOGIC BEHIND FILING OF MAS.BY THE AOS.FROM THE RECORDS IT IS CLEAR THAT MATTER HAD REACHED FINALIT Y WHEN HONBLE HIGH COURT HAD PASSED A DETAILED ORDER AND UPHELD THE ORDER OF THE FAA AND THE TRIBU NAL.WE DO NOT WANT TO COMMENT UPON THE JUSTIFICATION FOR FILING OF SLPS AGAINST THE ORDER OF THE HONBLE HIGH COURT.BUT,IN OUR HUMBLE OPINION,AFTER DISMISSAL OF SLPS BY THE HONBLE SUPR EME COURT,MATTER SHOULD NOT HAVE BEEN AGITATED.AOS,REPRESENTING THE SOVEREIGN,ARE SUPPOSE D NOT TO INDULGE IN UNNECESSARY LITIGATION, BUT WE FIND THAT IN THESE CASES AOS HAVE NOT FOLLOWED T HE INSTRUCTIONS OF THE HIGHER AUTHORITIES OF THE DEPARTMENT ABOUT AVOIDING UNNECESSARY LITIGATION.DU RING THE COURSE OF HEARING,INITIALLY OPTION B WAS OPTED BY THE AOS FOR NOT HEARING THE MAS.THROUG H VIDEO CONFERENCING.WHEN THE FACTS OF THE CASES WERE BROUGHT TO THE NOTICE OF THE CIT(DR),SHE TOOK POSITIVE STEPS FOR DISPOSAL OF THE MAS.IN OUR OPINION,BEHAVIOR OF THE AOS FROM FILING OF MAS TO TILL THE DISPOSAL NEEDS REVIEW BY THEIR SUPERIOR OFFICERS,SO THAT SUCH UNNECESSARY LI TIGATION CAN BE AVOIDED.WITH THESE OBSERVATIONS WE DISMISS THE MAS.,FILED BY THE AOS. AS A RESULT,ALL THE MAS. FILED BY THE AOS.STAND DISMISSED. 6 /7 $6/ 68 9 3: '3 (; (/' < . ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH JANUARY, 2014. 3'4 12 ' ) 24 ( 0 , 2014 . SD/- SD/- (H.L.KARWA/ & && & . . ) ( (')* (')* (')* (')* / RAJENDRA) PRESIDENT/ #' ' ' ' ' 35 35 35 35 /ACCOUNTANT MEMBER / MUMBAI, 3 /DATE: 24.01.2014 SK 3'4 3'4 3'4 3'4 -/ -/ -/ -/ ='2/ ='2/ ='2/ ='2/ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / +, 2. RESPONDENT / -.+, 3. THE CONCERNED CIT(A)/ > ? , 4. THE CONCERNED CIT / > ? 5. DR ITAT,NAGPUR BENCH/ @ -/ , . . ) . - . 6. GUARD FILE/ $ A . ./ -/ //TRUE COPY// 3'4 / BY ORDER, B / ( DY./ASST. REGISTRAR , /ITAT, MUMBAI.