PRASHANT SHARMA, V. DCIT (OSD-II) CEN RG 7,

MA 154/MUM/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5253 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 10-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Rectification of order; Search and seizure; Document seized; Revised return
• Section: 153A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER M .A. NO. 154/MUM/2015 (ARISING OUT OF ITA NO. 5596/MUM/2009 ) ( ASSESSMENT YEAR: 2003 - 04 ) SHRI PRASHANT G. SHARMA C - 104, PRASHANT APARTMENTS OPP. IIT MAIN GATE, POWAI MUMBAI - 400 076 VS. DCIT(OSD - II), CENTRAL RANGE - 3, OLD CGO BUILDING, M. K. ROAD, MUMBAI - 400 020 PAN/GIR NO. AAZPS 9066 P ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI NEELKANTH KHANDELWAL RESPONDENT BY : SHRI D. G. PANSARI DATE OF HEARING : 12.10.2018 DATE OF PRONOUNCEMENT : 22.10 .2018 ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 PER SHAMIM YAHYA, A. M.: BY WAY OF THIS MISCELLANEOUS APPLICATION (MA FOR SHORT) THE ASSESSEE SE EKS RECTIFICATION OF M ISTAKE APPARENT FROM THE RECORD U/S. 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT' FOR SHORT) IN THE ORDER OF THIS TRIBUNAL IN ITA NO. 5 596 /MUM/20 09 FOR ASSESSMENT YEAR 20 03 - 04 VIDE ORDER DATED 15.07.2011 . 2. THE MISCELLANEOUS APPLI CATION FILED IN THIS REGARD READS AS UNDER: 2. THE FOLLOWING ARE UNDISPUTED FACTS ARISING FROM THE ORDERS OF THE HONOURABLE TRIBUNAL AND LOWER AUTHORITIES. 2.1 THERE WERE SEARCH AND SEIZURE OPERATIONS CARRIED OUT BY THE INVESTIGATION WING OF THE INCOME - T AX DEPARTMENT ON THE APPLICANT ON 18 JANUARY, 2007. A 2 M.A. NO.154/MUM/2015 LOOSE PAPER INTER ALIA WAS SEIZED AND MARKED PAGE NO 65 OF ANNEXURE A - 17 (ANNEXURE 1) WHICH SHOWS RECEIPT OF CASH RS 18,05,000 IN RESPECT OF SALE OF LAND. 2.2 THE DDI, UNIT IV (1), INVESTIGATION WING, MUMBAI HAS RECORDED A STATEMENT ON OATH OF THE APPLICANT ON 15.03.07. 2.3 THE ASSESSING OFFICER HAS THEN ISSUED A NOTICE UNDER SECTION 153A ON 07.12.07. 2.4 THE APPLICANT ACCORDINGLY FILED HIS RETURN OF INCOME ON 31 ST MARCH, 2008 IN RESPONSE TO NOTICE UNDER SECTION 153A DECLARING TOTAL INCOME RS 16,36,446; THE APPLICANT HAD EARLIER FILED ON 6 TH JULY, 2004, A RETURN OF INCOME PURSUANT TO SECTION 139 OF THE ACT DECLARING TOTAL INCOME RS 16,53,560. 2.5 THE ASSESSING OFFICER ISSUED A NOTICE UNDER SECTION 1 42(1) DATED 27.5.08 TOGETHER WITH A QUESTIONNAIRE REQUIRING THE APPLICANT TO FURNISH THE DETAILS MENTIONED THEREIN. 2.6 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPLICANT FILED A REVISED COMPUTATION OF TOTAL INCOME WITH THE ASSESSING OFFICER UNDER COVER OF LETTER DATED 20.11.2008 DECLARING AN ADDITIONAL INCOME RS 18,05,000 ON THE BASIS OF THE AFORESAID PAGE NO 65 OF ANNEXURE A - 17. 2.7 THE ASSESSING OFFICER FRAMED THE ASSESSMENT ORDER DATED 31.12.2008, ACCEPTED THE REVISED COMPUTATION OF TOTAL INCO ME AS MENTIONED IN PARA 2.6 ABOVE; HOWEVER, INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(L)(C) IN RESPECT OF THE SAID ADDITION WITHOUT MENTIONING THE LIMB OF SECTION 271(IYC) UNDER WHICH HE HAS INITIATED THE PROCEEDINGS. 2.8 THE ASSESSING OFFICER BY HI S ORDER DATED 29.06.2009 LEVIED PENALTY RS 4,87,932 UNDER SECTION 271(L)(C) FOR CONCEALMENT OF PARTICULARS OF INCOME. 2.9 THE APPLICANT CARRIED THE MATTER TO THE CIT(A) IN RESPECT OF THE IMPOSITION OF PENALTY LEVIED BY THE ASSESSING OFFICER. THE CIT(A) BY HIS ORDER DATED 14.9.2009 CONFIRMED THE ORDER OF THE ASSESSING OFFICER LEVYING THE PENALTY. 2.10 THE APPLICANT THEN FILED AN APPEAL WITH THE HONOURABLE TRIBUNAL, WHICH HAS BEEN DISPOSED OF AGAINST HIM BY THE IMPUGNED ORDER DATED 15 TH JULY, 2011. 3 . THE APP LICANT ON THE BASIS INTER ALIA OF THE FACTS MENTIONED IN POI NT NO 2 ABOVE SUBMITS THAT THE FOLLOWING MISTAKES APPARENT FROM RECORD HAVE CREPT IN, IN THE IMPUGNED ORDER OF THE HONOURABLE TRIBUNAL - 3.1 (A) THE AUTHORISED REPRESENTATIVE OF THE APPLICANT INTER ALIA SUBMITTED DURING THE COURSE OF HEARING BEFORE THE HONOURABLE TRIBUNAL THAT THE PROVISIONS OF EXPLANATION 5 ARE NOT APPLICABLE TO THE FACTS OF THE CASE. (B) THE HONOURABLE TRIBUNAL IN PARA 3 ON PAGE NOS 2 AND 3 OF ITS ORDER HAS RECORDED THAT THE AUTHORISED REPRESENTATIVE ALSO RELIED ON EXPLANATION 5 TO SECTION 271(1)(C) AND LEGAL PRINCIPLES' BUT HAS NOT ADJUDICATED ON THE APPLICABILITY OF THE SAID PROVISIONS. THIS IS A MISTAKE APPARENT FROM RECORD. (C) EXPLANATION 5 IS APPLICABLE IF 'THE ASSESSE E IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THINS' (EMPHASIS MINE) BUT IN THE CASE ON HAND THE ADDITION IS BASED ON A LOOSE PAPER, BEING PAGE NO 65 OF ANNEXURE A - 17 SEIZED DURING THE COURSE OF SURVEY/ SEARCH PRO CEEDINGS, WHICH IS 3 M.A. NO.154/MUM/2015 NOT 'ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING' AND HENCE, THE PRE - REQUISITE CONDITION OF THE APPLICABILITY OF THE SAID PROVISIONS OF EXPLANATION 5, IS NOT SATISFIED. IT SEEMS, THE HONOURABLE TRIBUNAL IS GUIDED BY THE PROVISIONS OF EXPLANATION 5A INASMUCH AS IT HAS USED THE WORDS 'UNEXPLAINED INCOMES AND TRANSACTIONS' IN PARA 7 ON PAGE NO 5 OF ITS ORDER. THE WORD 'TRANSACTION' DOES NOT FIND PLACE IN EXPLANATION 5 BUT IS USED IN SUB - CLAUSE (II) OF EXPLANATION 5A - ' (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENT OR TRANSACTIONS....'. FURTHER, THE ASSUMPTION THAT THE HONOURABLE TRIBUNAL IS GUIDED BY THE PROVISIONS OF EXPLANATION 5A GAINS STRENGTH INASMUCH AS THE HONOURABLE TRIBUNAL IN PAR A 9 ON PAGE 7 OF ITS ORDER HAS OBSERVED THAT '..... IN THE CASE OF THE ASSESSEE THE TRANSACTIONS ARE OUTSIDE THE BOOKS OF ACCOUNT AND THE PAYMENTS RECEIVED AND PAID BY THE ASSESSEE WERE EVIDENCED BY THE IMPOUNDED DOCUMENTS' THE INSERTION OF EXPLANATION 5 A EFFECTIVE FROM 1 ST JUNE, 2007 IS TO PLUG THE AFORESAID LOOPHOLE, AND INCOME ON THE BASIS OF SUCH 'DOCUMENTS AND TRANSACTIONS' IS NOW DEEMED TO BE CONCEALMENT. THUS, THE LEVY OF PENALTY ON THE BASIS OF DOCUMENT SEIZED, WHICH IS NOT 'ANY MONEY, BULLION, JEW ELLERY OR OTHER VALUABLE ARTICLE OR THING' IS ON FACTS AND IN LAW, ERRONEOUS AND HENCE, A MISTAKE APPARENT ON RECORD RECTIFLABLE UNDER SECTION 254(2) OF THE ACT. 3.2 (A) THE AUTHORISED REPRESENTATIVE OF THE APPLICANT INTER ALIA SUBMITTED DURING THE C OURSE OF HEARING BEFORE THE HONOURABLE TRIBUNAL THAT THE ASSESSING OFFICER HAS SPECIFIED THE LIMB NAMELY, CONCEALMENT OF INCOME O R FURNISHING INACCURATE PARTICULARS OF INCOME, UNDER WHICH HE IS INTENDING TO INITIATE PENALTY PROCEEDINGS, AND HENCE, THE LEVY OF PENALTY OUGHT TO BE DELETED. (B) THE HONOURABLE TRIBUNAL IN PARA 2 ON PAGE NOS 2 AND 3. OF ITS ORDER HAS RECORDED THE SUBMISSIONS OF THE AUTHORISED REPRESENTATIVE TO THE EFFECT THAT 'THE A. O. HAS NOT RECORDED ANY SATISFACTION REGARDING CONCEALME NT OR (SIC - OF) INCOME OF (SIC - OR) FURNISHING OF INACCURATE PARTICULARS IN THE ASSESSMENT ORDER ......' BUT THE SAME HAS NOT BEEN ADJUDICATED AND THUS, A MISTAKE APPARENT ON RECORD WHICH IS RECTIFIABLE UNDER SECTION 254(2) OF THE ACT. 3.3 (A) THE AUTHOR ISED REPRESENTATIVE OF THE APPLICANT INTER ALIA SUBMITTED DURING THE COURSE OF HEARING BEFORE THE HONOURABLE TRIBUNAL THAT THE NON - DISCLOSURE OF RS 18,05;000 IN THE RETURN OF INCOME FILED PURSUANT TO NOTICE UNDER SECTION 153A IS AN UNINTENTIONAL ERROR WHIC H HAS BEEN SET RIGHT BY FILING A REVISED COMPUTATION OF TOTAL ' INCOME, VOLUNTARILY, UNDER COVER OF LETTER DATED 20.11.2008 THAT IS, BEFORE THE COMPLETION OF ASSESSMENT PROCEEDINGS AND HENCE, THE REVISED COMPUTATION OF TOTAL INCOME REPLACES THE RETURN OF I NCOME FILED PURSUANT TO NOTICE UNDER SECTION 153 A. AS SUCH, THE LEVY OF PENALTY IS NOT WARRANTED. (B) IN THE IMPUGNED ORDER IN PARA 7 ON PAGE NOS 5 AND 6, INTER ALIA OBSERVED THE FOLLOWING WHICH, IT IS SUBMITTED, ARE NOT BORNE OUT FROM THE FACTS ON RECOR D AND ARE 4 M.A. NO.154/MUM/2015 ALSO DE HORS THE MATERIALS ON RECORD AND ACCORDINGLY, IT IS SUBMITTED THAT THE ULTIMATE UPHOLDING OF LEVY OF PENALTY IS ERRONEOUS - 'THEREFORE ASSESSEE 'S EXPLANATION THAT THEY HAVE VOLUNTARILY FILED REVISED COMPUTATION CANNOT BE ACCEPTED ON THE FACT THAT ASSESSEE NEITHER ADMITTED THESE INCOMES DURINS THE COURSE OF SEARCH PROCEEDINGS NOR EVEN AT THE TIME OF FILING RETURNS IN THESE YEARS IN RESPONSE TO NOTICES UNDER SECTION 153A. ASSESSEE FILED THE SO CALLED REVISED COMPUTATION ON 20.11.2008, MAY B E AFTER THE ENQUIRY BY THE ASSESSING OFFICER WITH REFERENCE TO THE SEIZED/ IMPOUND DOCUMENTS. THIS DOES NOT ABSOLVE THE ASSESSEE OF THE FAILURE TO FURNISH CORRECT INCOMES AT THE TIME OF FILING RETURN IN THE RESPECTIVE ASSESSMENT YEARS. IT IS AN ESTABLISHED LAW THAT THE ONUS ATTACHED TO THE ASSESSEE WITH REFERENCE TO THE ORIGINAL RETURN CANNOT BE AVOIDED BY FILING A REVISED RETURN AFTER DETECTION BY THE REVENUE '' (EMPHASIS MINE). (C) THE APPLICANT SUBMITS THAT THERE IS NO BASIS FOR THE HONOURABLE TRIBUNAL T O OBSERVE THAT 'THE ASSESSEE NEITHER ADMITTED THESE INCOMES DURING THE COURSE OF SEARCH PROCEEDINGS NOR EVEN AT THE TIME OF FILING RETURNS' (REFER PARA 7 ON PAGE NO 6 OF THE TRIBUNAL ORDER) INASMUCH AS THE APPLICANT HAS IN RESPONSE TO QUESTION NO 4 IN THE STATEMENT ON OATH OF 15 TH MARCH, 2007 HAS DISCLOSED/ ADMITTED A SUM OF RS 50 LACS IN RESPECT OF 'SOME NOTINGS NOT RECORDED IN THE BOOKS OF ACCOUNTS' AND THE IMPUGNED SUM OF RS 18,05,000 HAS VOLUNTARILY BEEN INCLUDED IN THE REVISED COMPUTATION OF TOTAL INCO ME, WITHOUT THE ASSESSING OFFICER RAISING ANY POINTED QUERY ON THE PARTICULAR LOOSE PAPER SEIZED, BEING PAGE NO. 65 OF ANNEXURE A - 17 DURING THE COURSE OF ASSESSMENT PROCEEDINGS. FURTHER, IT IS SUBMITTED THAT THE APPLICANT INADVERTENTLY MISSED OUT IN INCLUD ING THE SUM OF RS .18, 05 , 000 IN THE RETURN OF INCOME FILED PURSUANT TO NOTICE UNDER SECTION 153A; THIS IS AN UNINTENTIONAL ERROR AS ALSO INFORMED TO THE ASSESSING OFFICER. THE FACT THAT THIS IS AN INADVERTENT/ UNINTENTIONAL ERROR ON THE PART OF THE ACCOUNTA NT OF THE APPLICANT IS EVIDENT FROM THE RECORDS INASMUCH AS THE APPLICANT, WITHOUT THERE BEING ANY QUERY RAISED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS SUO MOTO FILED A REVISED COMPUTATION OF TOTAL INCOME BEFORE THE COMPLET ION OF ASSESSMENT PROCEEDINGS. THUS, THE OBSERVATION OF THE HONOURABLE TRIBUNAL THAT 'ASSESSEE FILED THE SO CALLED REVISED COMPUTATION ON 20.11,2008, MAY BE AFTER ENQUIRY BY THE ASSESSING OFFICER.....' IS ON FACTS ERRONEOUS (EMPHASIS MINE). ACCORDINGLY, TH E UPHOLDING OF PENALTY IS PERVERSE. 3.4 THE HONOUABLE TRIBUNAL HAS RELIED ON THE CASE OF KIRIT DAHYABHAI PATEL REPORTED IN 121 ITD 159 (AHD)(TM) WHICH, IT IS SUBMITTED, IS NOT RELEVANT TO THE FACTS OF THE APPLICANT. 4. IN VIEW OF THE ABOVE MISTAKES APPAR ENT ON RECORD THAT HAVE CREPT IN IN THE IMPUGNED ORDER OF THE HONOURABLE TRIBUNAL, THE APPLICANT PRAYS THAT - (A) THE ORDER OF THE TRIBUNAL DATED 15 TH JULY, 2011 BE SUITABLY AMENDED, (B) THE TRIBUNAL MAY GRANT SUCH FURTHER AND / OR OTHER RELIEFS A S IT DEEMS FIT. 5 M.A. NO.154/MUM/2015 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE ABOVE ORDER OF THE ITAT WAS A CONSOLIDATED ORDER FOR ITA NO S . 5596 & 5597 /MUM/2009 FOR A.YS. 2003 - 04 AND 2005 - 06. THE TRIBUNAL IN THE SAID ORDER HAD NOTED THE CONTENTIONS OF TH E ASSESSEE AND THE LD. COUNSEL OF THE ASSESSEE AND THEREAFTER PASSED THE ORDER. 4. IN THE MA, THE FIRST MISTAKE APPARENT FROM THE RECORD REFERRED BY THE ASSESSEE IS THAT THE ITAT HAS BEEN GUIDED BY EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT AND THAT THIS WAS AN ERROR AS THE TRIBUNAL HAS NOTED THAT THE LD. COUNSEL OF THE ASSESSEE ALSO RELIED ON EXPLANATION 5 TO SECTION 271(1)(C) AND THE LEGAL PRINCIPLES. IN THIS REGARD, WE NOTE THAT NOWHERE IN THE ORDER OF THE ITAT THERE IS A MENTION THAT ITAT IS FOL LOWING EXPLANATION 5A TO SECT ION 271(1)(C) OF THE ACT. IN OUR CONSIDERED OPINION , THIS ASSERTION OF THE LD. COUNSEL OF THE ASSESSEE IS NOT APPARENT FROM THE ORDER OF THE ITAT. CONSIDERATION OF TH IS LIMB OF THE ARGUMENT OF THE LD. COUNSEL OF THE ASSESSEE WO ULD FALL UNDER REVIEW A ND RECONSIDERATION OF A CO - ORDINATE BENCH ORDER, NOT PERMISSIBLE U/S. 254(2) OF THE I. T. ACT. 5. MOREOVER WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT HAS OCCASION TO CONSIDER SECTION 254(2) OF THE ACT IN THE CASE OF CIT VS. RAMESH ELECTRIC AND TRADING CO. [1993] 203 ITR 497 (BOM). IN THE SAID ORDER, THE HON'BLE JURISDICTIONAL HIGH COURT HAS REFERRED TO AND DRAWN STRENGTH FROM THE HONBLE APEX COURT DECISION IN THE CASE OF T.S. BALARAM, ITO V. VOLKART BROS. [1971] 82 ITR 50 (SC). THE HON'BLE JURISDICTIONAL HIGH COURT HAS REFERRED TO THE FOLLOWING FROM THE HONBLE APEX COURT DECISION: 6 M.A. NO.154/MUM/2015 'A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD.' THEREAFTER AFTER C ONSIDERING THE VARIOUS FACTS AND DECISIONS, THE HON'BLE JURISDICTIONAL HIGH COURT HAS EXPOUNDED AS UNDER: IN OUR VIEW, THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME - TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTI FIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS, AS HAS BEEN SHOWN IN TH E PRESENT CASE. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. 6 . ANOTHER MISTAKE APPARENT FROM THE RECORD SUBMITTED L D. COUNSEL OF THE ASSESSEE IS THAT DURING THE COURSE OF HEARING, IT WAS SUBMITTED BEFORE THE ITAT THAT THE A.O. HAS NOT SPECIFIED THE LIMB OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME UNDER WHICH HE IS INTENDING TO INITIALISE PENALTY PROCEEDINGS AND, HENCE, THE LEVY OF PENALTY OUGHT TO BE DELETED. FOR THIS THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE ITAT HAS RECORDED THE SUBMISSIONS OF THE ASSESSEE THAT THE A.O. HAS NOT RECORDED ANY SATISFACTION REGARDING THE CONCEALMENT O F INCOME FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. WE FIND THAT THE LD. COUNSEL OF THE ASSESSEE IS TOTALLY INCORRECT IN HIS ASSERTION THAT THERE WAS ANY ISSUE BEFORE THE ITAT THAT THE ORDER PASSED U/S. 271(1)(C) IS BAD INASMUCH AS A SPECIFIC LIMB HAS NOT BEEN SPECIFIED. THIS IS CLEARLY AN AFTERTHOUGHT. 7 . ANOTHER ISSUE RAISED BY THE ASSESSEE IS THAT THERE IS APPARENT MISTAKE THAT THE ITAT HAS ERRED IN OBSERVING THAT THE ASSESSEES EXPLANATION THAT THEY HAVE VOLUNTARILY 7 M.A. NO.154/MUM/2015 FILED REVISED COMPUTATION OF INCOME CANNOT BE ACCEPTED. WE FIND THAT IT IS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAS INADVERTENTLY MISSED OUT IN INCLUDING THE SUM OF RS.18,05,000/ - AS IN THE RETURN OF INCOME. IN THIS REGARD, WE NOTE THAT THIS ISSUE WAS DULY NOTED BY THE ITAT AND HAS NOT BEEN ACCEPTED. IF THE ITAT DOES NOT ACCEPT ANY SUBMISSION OF THE ASSESSEE, BY NO STRETCH OF IMAGINATION CAN BE CONSIDERED AS MISTAK E APPARENT FROM THE RECORD IN TH E ORDER OF THE ITAT LIABLE FOR RECTIFICATION U/S. 254(2). 8 . ANOTHER PLANK OF THE ASSESSEES ARGUMENT IS THAT THE LOOSE SHEET FOUND CANNOT BE CONSIDERED AS ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THINS' AS CONTEMPLATED IN THE CONCERNED SECTION. HENCE, IT IS CLAIMED THAT NO PENALTY IS LEVIABLE ON SUCH UNSUSTAINABL E ADDITION. WE FIND THAT ON THIS ISSUE THE ASSESSEE IS CLEARLY S EEKING REVIEW OF THE ORDER OF THE ITAT NOT PERMISSIBLE U/S. 254(2) OF THE I. T. ACT. 9 . THUS FROM THE ABOVE DISCUSSION, WE FIND THAT THE ISSUES POINTED OUT BY THE LD. COUNSEL OF THE ASSESSEE DO NOT FALL UNDER THE REALM OF MISTAKE APPARENT FROM THE RECORD LIABLE TO BE RECTIFIED U/S. 254(2) OF THE ACT. IT IS SETTLED LAW THAT RE - APPRECIATION/RE - ADJUDICATION IS NOT PERMISSIBLE IN THE GARB OF THE RECTIFICATION OF MISTAKE IN THE ORDER OF THE TRIBUNA L. ON THE SAME REASONING, THE CASE LAWS REFERRED BY THE LD. COUNSEL OF THE ASSESSEE ON MERITS ON THE ISSUES CANNOT BE CONSIDERED AS THEY ARE NOT IN CONNECTION WITH THE MISTAKE APPARENT FROM THE RECORD AS ALREADY HELD BY THE HON'BLE JURISDICTIONAL HIGH COUR T IN THE CASE OF RAMESH ELECTRIC AND TRADING CO. (SUPRA). THE ABOVE CASE LAW FROM THE HON'BLE JURISDICTIONAL HIGH COURT IS FULLY APPLICABLE ON ALL THE FA CETS OF ARGUMENTS PLACED IN THIS MA. 8 M.A. NO.154/MUM/2015 10 . IN THE RESULT, THE MISCELLANEOUS APPLICATION BY THE ASSESSEE S TANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.10.2018 SD/ - SD/ - ( JOGINDER SINGH ) (S HAMIM YAHYA) VICE PRESIDENT A CCOUNTANT MEMBER MUMBAI ; DATED : 22.10.2018 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI