VIKAS JAYANTILAL SOLANKI, MUMBAI V. INCOME TAX OFFICER 18(2 )(3), MUMBAI

MA 165/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9115 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 07-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA
• Keywords: Loose papers; Opportunity of being heard; Reassessment proceedings; Set aside
• Section: 133(6); 195; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 164/MUM/2018 (ITA NO. 5803/MUM/2016) ASSESSMENT YEAR: 2007 - 08 SHRI MANISH VISTIMAL JAIN 93/97, 1 ST FLOOR, R.NO. 2, SHUKLA BHAVAN, TAMBAKANTA, MUMBAI - 400002 VS. ITO - 18(2)(3), MUMBAI PAN NO. AABPJ9809M APPELLANT RESPONDENT M.A. NO. 165/MUM/2018 (ITA NO. 5804/MUM/2016) ASSESSMENT YEAR: 2007 - 08 SHRI VIKASH JAYANTILAL SOLANKI 101/102, DD PLAZA, THIRD AGIARY LANE, MUMBAI - 400002 VS. ITO - 18(2)(3), MUMBAI PAN NO. AAEPS4197A APPELLANT RESPONDENT ASSESSEE BY : MR. RAKESH JOSHI, AR REVENUE BY : MR. NISHANT SAMAIYA, DR DATE OF HEARING : 28/09/2018 DATE OF PRONOUNCEMENT : 1 3 /12/2018 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION S (MA), THE APPLICANT SEEKS RECTIFICATION OF THE ORDER DATED 27.12.2017 PASSED BY THE ITAT H BENCH MUMBAI (ITA NO. 5803 & 5804/MUM/2016 ) FOR THE SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 2 ASSESSMENT YEAR (AY) 2007 - 08. IN PART - I , HERE - IN - BELOW, WE MENTION THE CONTENTIONS OF THE LD. COUNSEL OF THE APPLICANT, IN PART - II, THE SUBMISSIONS OF THE LD. DR AND IN P ART - III, THE REASONS FOR OUR DECISION. I 2. THE CONTENTIONS OF THE LD. COUNSEL FOLLOW THE WRITTEN SUBMISSION DATED 05.03.2018 FILED BY THE APPLICANT S BEFORE THE TRIBUNAL. THE SUBMISSIONS ARE IDENTICAL. THEREFORE, WE REFER BELOW THE SAID WRITTEN SUBMISSION IN THE CASE OF MR. MANISH VASTIMAL JAIN. IT IS STATED THAT THE ISSUE INVOLVED IN THE SAID APPEAL WAS ADDITION U/S 69 OF THE ACT ON ACCOUNT OF PAYMENT MADE TO M/S ESQUE FINMARK PVT. LTD., A DEVELOPER OF RS.28,75,000 / - AND THE ASSESSEE HAD SUBMITTED RECEI PTS ISSUED BY THE DEVELOPER. IT IS STATED THAT THE PAYMENTS WERE MADE IN AY 2005 - 06. IT IS FURTHER STATED THAT THE ISSUE ALSO INVOLVED IN THE APPEAL OF SHRI KANTILAL S. SOLANKI FOR THE SAME YEAR IN ITA NO. 5145/MUM/2016, WHEREIN SIMILAR ADDITIONS WERE MADE ON ACCOUNT OF PAYMENT TO M/S ESQUE FINMARK PVT. LTD., WHEREIN THE TRIBUNAL CONSIDERING THE RECEIPTS ISSUED BY THE DEVELOPER HELD THAT THE PAYMENTS WERE MADE IN AY 2006 - 07 AND NOT IN AY 2007 - 08. IT IS FURTHER STATED THAT DURING THE HEARING, THE AR OF THE A SSESSEE RELIED UPON THIS DECISION OF CO - ORDINATE BENCH, SINCE THE ISSUE INVOLVED IS IDENTICAL. ALSO IT IS STATED THAT, WHILE DECIDING THE AFORESAID GROUND OF THE ASSESSEE, THE BENCH HAS NOT FOLLOWED THE SAID DECISION, RELYING ON THE SUPREME COURT DECISIO N IN COMMON CAUSES V. UOI IN WP(CIVIL) NO. 505 OF 2015. IT IS STATED THAT SINCE THE ORDER OF THE CO - ORDINATE BENCH OF THE TRIBUNAL, WHICH WAS RELIED UPON WAS NOT FOLLOWED AND THAT IN FORMING SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 3 ANOTHER VIEW, THE VIEW TAKEN BY THE CO - ORDINATE BENCH OF THE TRIB UNAL WAS NOT DISTINGUISHED, THEREFORE, A MISTAKE APPARENT FROM RECORD HAS CREPT IN. IT IS STATED THAT THE ISSUE COULD NOT BE DECIDED WITHOUT BEING REFERRED TO A SPECIAL BENCH TO RECONCILE THE DIFFERENCE, IF AT ALL, BETWEEN TWO VIEWS. IN THIS REGARD RELIANC E WAS PLACED ON THE DECISION IN SUNDARJAS KANYALAL BHATIJA & ORS. VS. COLLECTOR, THANE, MAHARASHTRA & ORS . (1990) 183 ITR 130 (SC), UNION OF INDIA & ANR. V. PARAS LAMINATES (P) LTD. (1990) 87 CTR (SC) 180: (1990) 186 ITR 722 (SC) AND HONDA SIEL POWER PRODU CT LTD. VS. CIT (2007) 295 ITR 466 (SC). THUS IT IS STATED THAT THE IMPUGNED ORDER BE RECTIFIED. II 3. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. HE SUBMITS THAT IN TH E INSTANT CASE THE TRIBUNAL HAS SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE AO TO MAKE AN ASSESSMENT DE NOVO BY EXAMINING M/S ESQUE FINMARK PVT. LTD. AND AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE TO CROSS - EXAMINE. THE TRIBUNAL HAS DIRECTED THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. IT HAS ALSO ASKED THE AO TO GIVE REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE BEFORE FINALIZING THE ASSESSMENT ORDER. THUS THE LD. DR SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD AND THE MA FILED BY THE ASSESSEE BE DISMISSED. III 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISION ARE GIVEN BELOW. SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 4 THE MAIN CONTENTION OF THE ASSESSEE IN THIS MA IS THAT THE TRIBUNAL HAS NOT FOLLOWED THE ORDER OF THE SMC BENCH IN THE CASE O F KANTILAL S. SOLANKI FOR AY 2007 - 08 . IN THE INSTANT CASE D URING THE COURSE OF REASSESSMENT PROCEEDINGS THE ASSESSEE FILED ALLOTMENT LETTER ON 28.05.2005 IN RESPECT OF ALLOTMENT OF FLAT NO. 702 A WING SHANTI DARSHAN, KALACHOWKLE, PARLE, MUMBAI 40003 3 WHICH DID NOT BEAR THE SIGNATURE OF THE ALLOTTEE OR THE DIRECTOR AND ANOTHER ALLOTMENT LETTER DATED 26.10.2010 WHICH WAS SIGNED BY THE DIRECTOR OF THE COMPANY AND THE PURCHASE PRICE HAD BEEN GIVEN AS RS.29,75,000/ - . THE ASSESSEE HAD FURTHER STATED THAT T HE INVESTMENT IN THE FLAT WAS MADE ON TWO NAMES I.E. THE ASSESSEE AND HIS WIFE MS. PINA M. JAIN EQUALLY AND THE SAME WAS REFLECTED IN THEIR PERSONAL BALANCE SHEET. RECEIPTS OF RS.1,00,000/ - VIDE CHEQUE NO.973032 DATED 26.02.2005 BY THE ASSESSEE AND RS.1,00 ,000/ - VIDE CHEQUE NO.845589 DATED 02.03.2005 BY MS. PINA M JAIN WERE PLACED ON RECORD IN HIS SUBMISSION BEFORE THE DDIT . THE ASSESSEE HAD ADMITTED THAT OUT OF THE TOTAL AMOUNT OF RS,30,75,000/ - FOR FLAT NO. 702 - A IN SHANTI DARSHAN, A SUM OF RS.28,75,000/ - WAS PAID BY CASH AND RS.2,00,000/ - WAS PAID BY CHEQUE. THE ASSESSEES AUTHORIZED REPRESENTATIVE HAD CONTENDED THAT SINCE THE PAYMENTS HAD BEEN MADE IN THE FY 2004 - 05 RELEVANT TO THE AY 2005 - 06, THE REOPENING PROCEEDINGS FOR AY 2007 - 08 WAS INVALID. DURIN G THE COURSE OF REASSESSMENT PROCEEDINGS, THE AO ISSUED NOTICE U/S 133(6) DATED 23.02.2015 TO M/S ESQUE FINMARK PVT. LTD. CALLING FOR SPECIFIC INFORMATION. IN RESPONSE TO IT, THE AO RECEIVED INFORMATION FROM THE ABOVE COMPANY THAT THE DATE OF BOOKING OF FL AT NO.702, A WING, SHANTI DARSHAN WAS 26.05.2006. THE AO ALSO RECEIVED SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 5 FROM THE ABOVE COMPANY A COPY OF ALLOTMENT LETTER DATED 26.05.2006 ISSUED TO THE ASSESSEE BEARING THE SEAL OF THE COMPANY AND THE SIGNATURE OF THE DIRECTOR. THE AO OBSERVED THAT TH E ASSESSEE COULD PRODUCE PROOF IN RESPECT OF PAYMENTS MADE IN CHEQUE TO THE EXTENT OF RS.2,00,000/ - . ALSO THE AO NOTED THAT IN HIS SUBMISSION DATED 28.04.2014 BEFORE THE DDIT, THE ASSESSEE SUBMITTED TO HAVING PAID RS.28,75,000/ - IN CASH BUT HE COULD NOT PR ODUCE ANY CASH RECEIPT IN RESPECT OF THE SAME. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO AN ADDITION OF RS.28,75,000/ - U/S 69 OF THE ACT. IN APPEAL BEFORE THE LD. CIT(A), THE ONLY PIECE OF EVIDENCE WHICH THE ASSESSEE COULD FILE WAS A PH OTOCOPY OF TWO PAGES SUPPOSED TO BE FROM HIS DIARY WHICH HAVE THE ENTRIES OF CASH PAYMENTS AS UNDER: 1. RS.3 LAKH ON 31.01.2005 (CASH GIVEN) 2. RS.5 LAKH ON 18.01.2005 (CASH GIVEN) 3. RS.5 LAKH ON 27.01.2005 (CASH GIVEN) 4. RS.5 LAKH ON 09.02.2005 (CASH GIVEN) 5. RS.5 LAKH ON 17.02.2005 (CASH GIVEN) 6. RS.5,75,000 ON 28.02.2005 (CASH GIVEN) 7. RS.1,00,000 ON 26.02.2005 (CHQ GIVEN) 8. RS.1,00,000 ON 02.03.2005 (CHQ GIVEN) THE LD. CIT(A) OBSERVED THAT THE AUTHENTICITY OF THESE PAGES IS NOT PROVED UNLESS THE PERSON MR. PARAS PORWAL FROM M/S ESQUE FINMARK PVT. LTD. WHO WAS SUPPOSED TO HAVE ACKNOWLEDGED THESE PAYMENTS CONFIRMS THE RECEIPTS. THE ASSESSEE WAS NOT IN A POSITION TO SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 6 GET SUCH CONFIRMATION. IN VIEW OF THE ABOVE FACTS, THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 4.1 THE MAIN CONTENTIONS OF THE APPLICANT ARE THAT THIS BENCH SHOULD HAVE FOLLOWED THE ORDER OF THE SMC BENCH IN THE CASE OF SHRI KANTILAL S. SOLANKI IN ITA NO. 5145/MUM/2016. IN THE CASE OF SHRI KANTILAL S. SOLANKI (SUPRA), RELIED ON BY THE LD. COUNSEL, IT IS MENTIONED IN THE ORDER OF THE TRIBUNAL IN PARA 2 THAT THE AO NOTICED THAT THE BUILDER HAD ISSUED ALLOTMENT LETTER TO THE ASSESSEE ON 28 .11.2006 AND THE ALLOTMENT LETTER DISCLOSED PAYMENT OF RS.1,00,000/ - ONLY TO T HE BUILDER. THE ASSESSEE SUBMITTED THAT THE BALANCE AMOUNT OF RS.34,00,000/ - WAS GIVEN BY WAY OF CASH DURING THE FINANCIAL YEAR 2005 - 06. THE ASSESSEE SUBMITTED BEFORE THE AO THAT HE HAD MADE CASH PAYMENT OUTSIDE HIS BOOKS, BUT THEY WERE MADE DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2006 - 07. IN CONTRAST, IN THE CASE OF SHRI MANISH VASTIMAL JAIN, AS RECORDED BY THE LD. CIT(A) , THE LD. COUNSEL FOR THE ASSESSEE REIT ERATED HIS STAND THAT THE CASH PAYMENTS OF RS.28,75,000/ - HAVE BEEN MADE DURING THE FINANCIAL YEAR 2004 - 05 AND NOT DURING THE FINANCIAL YEAR 2006 - 07. IN THE CASE OF SHRI VIKASH JAYANTILAL SOLANKI, AS RECORDED BY THE LD. CIT(A), IT WAS THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT THE PAYMENTS OF RS.27,50,000/ - WERE MADE DURING THE FINANCIAL YEAR 2004 - 05 AND 2005 - 06. AN EXAMINATION OF THE ABOVE FACTS CLEARLY INDICATE THAT THE ORDER OF THE SMC BENCH OF THE TRIBUNAL IN THE CASE OF SHRI KANTILAL S. SOLANKI CANNOT BE APPLIED TO THE CASE OF SHRI MANISH VASTIMAL JAIN AND SHRI SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 7 VIKASH JAYANTILAL SOLANKI, BECAUSE OF CLAIM OF CASH BEING PAID IN DIFFERENT FINANCIAL YEARS. THUS THE QUESTION OF NOT FOLLOWING THE ORDER OF THE SMC BENCH BY THE DIVISION BENCH SIMPLY DOES NOT ARISE. THE CASE - LAWS REFERRED AND RELIED ON BY THE LD. COUNSEL IN THE WRITTEN SUBMISSION FILED WHICH HAV E BEEN REFERRED AT PARA 2 HEREINBEFORE ARE , THEREFORE, DISTINGUISHABLE. IN THE ORDER DATED 27.12.2017, WE HAVE REFERRED TO THE JUDGMENT OF HONBLE SUPREME COURT IN CENTRAL BUREAU OF INVESTIGATION V. V.C. SHUKLA AND ORS 1998 3SCC 410, WHERE IT HAS BEEN HEL D THAT FILE CONTAINING LOOSE SHEETS OF PAPERS ARE NOT BOOK AND HENCE ENTRIES THEREIN NOT ADMISSIBLE U/S 34 OF THE EVIDENCE ACT, 1872. FURTHER IT WAS HELD THAT ENTRIES IN BOOKS OF ACCOUNT SHALL NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LI ABILITY. ENTRIES, EVEN IF RELEVANT, ARE ONLY CORROBORATIVE EVIDENCE. INDEPENDENT EVIDENCE AS TO TRUSTWORTHINESS OF THOSE ENTRIES IS NECESSARY TO FASTEN THE LIABILITY. IT WAS FURTHER HELD THAT LOOSE SHEETS OR SCRAPS OF PAPER CANNOT BE TERMED AS BOOK FOR T HEY CAN BE EASILY DETACHED AND REPLACED. IN THE ABOVE JUDGMENT, THE IMPORTANCE OF INDEPENDENT EVIDENCE AS TO THE TRUSTWORTHINESS OF THOSE ENTRIES HAS BEEN EMPHASIZED. ALSO WE HAVE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT VIDE ORDER DATED 11 TH J ANUARY 2017 IN COMMON CAUSES V. UNION OF INDIA IN W.P. (CIVIL) NO. 505 OF 2015, WHERE IT IS HELD: ENTRIES IN LOOSE PAPERS/SHEETS ARE IRRELEVANT AND INADMISSIBLE AS EVIDENCE. SUCH LOOSE PAPERS ARE NOT BOOKS OF ACCOUNT AND THE ENTRIES THEREIN ARE NOT SUFFICIENT TO CHARGE A PERSON WITH LIABILITY. EVEN IF BOOKS OF ACCOUNT ARE REGULARLY KEPT IN THE ORDIN ARY COURSE OF BUSINESS, THE ENTRIES THEREIN SHALL SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 8 NOT ALONE BE SUFFICIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY. IT IS INCUMBENT UPON THE PERSON RELYING UPON THOSE ENTRIES TO PROVE THAT THEY ARE IN ACCORDANCE WITH FACTS. ALSO IN THE ABOVE CASE IT HAS BEEN EMPHASIZED THAT IT IS INCUMBENT UPON THE PERSON RELYING UPON THOSE ENTRIES TO PROVE THAT THEY ARE IN ACCORDANCE WITH FACTS. IN VIEW OF THE ABOVE POSITION OF LAW, WE WERE CONSTRAINED NOT TO FOLLOW THE ORDER OF THE SMC BENCH IN THE CASE OF SHRI K ANTILAL S. SOLANKI, RELIED ON BY THE LD. COUNSEL OF THE ASSESSEE. FINALLY RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN STATE OF KERALA V. K.T. SHADULI GROCERY DEALER AIR 1977 SC 1627 AND ITO V. M. PIRAI CHOODI (2012) 20 TAXMANN.COM 733 (SC), WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE AO TO MAKE AN ASSESSMENT DE NOVO BY EXAMINING M/S ESQUE FINMARK PVT. LTD. AND GIVING AN OPPORTUNITY TO THE ASSESSEE TO CROSS - EXAMINE. WE HAVE DIRECTED THE ASSESSEE TO FILE TH E RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. WE HAVE ALSO DIRECTED THE AO TO GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE FINALIZING THE ASSESSMENT ORDER. 4.2 A PERUSAL OF THE ABOVE FACTS CLEARLY INDICATE THAT THE APPLICANT HAS NOT PO INTED OUT ANY MISTAKE APPARENT FROM THE RECORD. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS 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. THIS VIEW IS SUPPORTED BY THE DECISION OF THE HONBLE SUPREME COURT IN T.S. BALARAM, ITO V. VOLKART BROS ., (1971) 82 ITR 50 (SC), MASTER SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 9 CONSTRUCTION CO. P. LTD. V. STATE OF ORISSA , AI R 1966 SC 1047, KARAM CHAND THAPAR & BROS. (COAL SALES) LTD. V. STATE OF U.P. (1976) TAX LR 1921, 1927 (SC) AND CCE V. ASCU LTD ., (2003) 9 SCC 230, 232. IN FACT, NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLI CANT WANTS IS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THE TRIBUNAL IS A CREATURE OF THE STATUTE. THE TRIBUNAL CANNOT REVIEW ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 1273] THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN TH E GARB OF SECTION 254(2) OF THE ACT AS HELD IN CIT V. GLOBE TRANSPORT CORPN. [1992] 195 ITR 311 (RAJ) (HC), CIT V. ROOP NARAIN SARDAR MAL [2004] 267 ITR 601 (RAJ) (HC), CIT V. DEVILAL SONI [2004] 271 ITR 566 (RAJ) (HC), JAINARAIN JEEVRAJ V. CIT [1980] 121 ITR 358 (RAJ.) (HC), PRAJATANTRA PRACHAR SAMITI V. CIT [2003] 264 ITR 160 (ORISSA) (HC), CIT V. JAGABANDHU ROUL [1984] 145 ITR 153 (ORISSA) (HC), CIT & ANR. V. ITAT & ANR. [1992] 196 ITR 640 (ORISSA) (HC), SHAW WALLACE & CO. LTD. V. ITAT & OTHERS [1999] 240 ITR 579 (CAL) (HC), CIT V. SUMAN TEA & PLYWOOD INDUSTRIES PVT. LTD. [1997] 226 ITR 34 (CAL) (HC), ITO V. ITAT & ANR. [1998] 229 ITR 651 (PAT.) (HC), CIT & ANR. V. ITAT & ANR. [1994] 206 ITR 126 (AP) (HC), ACIT V. C. N. ANANTHRAM [2004] 266 ITR 4 70 (KAR) (HC). 4. 3 THE IMPUGNED ORDER OF THE TRIBUNAL IS BASED ON THE DECISIONS OF THE HONBLE SUPREME COURT DELINEATED AT PARA 4.1 HEREINBEFORE. SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 10 4.4 IN THE CASE OF CIT V. RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497 (BOM) , THEIR LORDSHIPS OF THE HON BLE BOMBAY HIGH COURT HAVE HELD: UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL MAY, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - S (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE IT ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. IN THE PRESENT CASE, IN THE FIRST ORDER, THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYMENT OF RS.54,000 WAS DEDUCTIBLE UNDER S. 37. AFTER EXAMINING THE CIRCUMSTANCES, THE TRIBUNAL CAME TO A CONCLUSION THAT IT WAS NOT SO DEDUCTIBLE. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MIS TAKE THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. THE TRIBUNAL HAS, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER S. 254(2) IN REDECIDING THE ENTIRE DISPUTE WHICH WAS BEFORE IT, IN THIS FASHION, AND THE TRIBUNAL HAS COMMITTED A GROSS AND INEXPLICABLE ERROR. 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 JUDGME NT. 5. IN VIEW OF THE FACTUAL SCENARIO AND POSITION OF LAW DELINEATED HEREINBEFORE, THE PRESENT MA, BEING DEVOID OF MERIT, ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 /12/2018. SD/ - SD/ - (MAHAVIR SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 13 /12/2018 RAHUL SHARMA, SR. P.S. SHRI MANISH VISTIMAL JAIN & VIKASH JAYANTILAL MA NOS. 164 & 165/MUM/2018 11 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI