A. Balakrishna Rao, Hyderabad V. ACIT, Circle-1(1), Hyderabad

MA 179/HYD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8705 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 27-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K VISWANATHAM
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Search and seizure; Block assessment; Retraction

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MISC. APPLICATION NO.179/HYD/ 2011 (IN IT(SS)A NO.10/HYD/200 2) (BLOCK PERIOD FROM 1.4.1988 TO 11.2.1999) SHRI A.BALAKRISHNA RAO, HYDERABAD ( PAN - ADEPA 0695 E ) V/S ASST. COMMISSIONER OF INCOME-TAX CIRCLE 1(1), HYDERABAD (APPLICANT) (RESPONDENT) APPLI C ANT BY : SHRI P.MURALI MOHAN RAO RESPONDENT BY : SHRI K.VISWANATHAM DATE OF HEARING 18.5.2012 DATE OF PRONOUNCEMENT 6.7.2012 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE ACT, TH E APPLICANT- ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 30 TH APRIL, 2007, IN IT(SS)A NO.10/HYD2002 FOR THE BLOCK PERIOD FROM 1.4.1988 TO 11.2.1999, ON THE GROUND THAT CERTAIN M ISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. REITERATING THE AVERMENTS MADE IN THE PRESENT A PPLICATION UNDER S.254(2) OF THE ACT, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE TRIBUNAL VIDE ITS ORDER 30 TH APRIL, 2007 CONFIRMED THE ADDITIONS MADE IN THE BLOCK ASSESSMENT . IT IS SUBMITTED THAT THE RE LEVANT ADDITIONS ARE BASED ON THE STATEMENT RECORDED INSTEAD OF ON THE E VIDENCE SEIZED/DETECTED AT THE TIME OF SEARCH AND THOUGH TH E ASSESSEE WAS MAINTAINING BOOKS OF ACCOUNT AND FILED INCOME TAX R ETURN, THE ASSESSING OFFICER IGNORED THE BOOKS MAINTAINED AND MAINLY REL YING ON THE STATEMENT RECORDED MADE THE ADDITION. INVITING OUR SPECIFIC ATTENTION TO GROUNDS NO.2 RAISED BEFORE THE TRIBUNAL AND GROUND NO7 RAIS ED BEFORE THE CIT(A), MISC. APPLN. NO.179/HYD/2011 (IN IT(SS)A NO.10/HYD/2002) SHRI A.BALAKSIRHNA RAO, HYDERABAD 2 WHEREIN THE ASSESSEE CONTESTED THE ADDITIONS MADE B Y THE ASSESSING OFFICER MERELY BASING ON THE ADMISSIONS MADE IN THE SWORN STATEMENT RECORDED, LEARNED COUNSEL SUBMITTED THAT THE ACTION OF THE LOWER AUTHORITIES IS AGAINST THE SPIRIT OF THE CBDT CIRCU LAR NO.286/2/2003- IYT(INV.) DATED 10.3.2003 UNDER S.132 OF THE ACT, W HEREIN IT WAS EMPHASIZED THAT THE FOCUS AND ATTENTION DURING THE COURSE OF SEARCH AND SEIZURE AND SURVEY OPERATIONS AND RELIANCE BY THE A SSESSING OFFICERS SHOULD BE ON THE EVIDENCE/MATERIALS GATHERED DURIN G THE SEARCH /SURVEY OPERATIONS, AND NOT CONFESSIONS AS TO THE UNDISCLOS ED INCOME. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, OPPOSED THE ABOVE CONTENTIONS OF THE LEARNED COUNSE L FOR THE ASSESSEE, AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FRO M REDCORD IN THE ORDER OF THE TRIBUNAL. 4. WE HEARD THE PARTIES AND PERUSED THE MATERIAL A VAILABLE ON RECORD IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DA TED 30 TH APRIL, 2007. WE FIND THAT THE TRIBUNAL HAS PASSED A REASONED ORDER TAKING INTO ACCOUNT NOT ONLY THE MATERIAL AVAILABLE BEFORE THE ASSESSIN G OFFICER TO SUBSTANTIATE THE ADDITIONS MADE, BUT ALSO THE SWORN STATEMENT MA DE BY THE ASSESSEE AT THE TIME OF SEARCH AND SUBSEQUENT RETRACTION FRO M THE SAME AND VALIDITY OF SUCH RETRACTION. WE DO NOT FIND ANY M ISTAKE APPARENT FROM RECORD IN THE ABOVE ORDER OF THE TRIBUNAL. THE TRI BUNAL SPECIFICALLY OBSERVED IN PARA-8 OF ITS ORDER ON PAGE 7 THEREOF A S FOLLOWS- ....IT IS A WELL SETTLED PRINCIPLE OF LAW THAT AN ASSESSMENT CAN BE MADE ON THE BASIS OF AN ADMISSION. WHENEVER THERE IS AN ADMISSION, IT IS FOR THE ASSESSEE TO ESTABLISH ON THE BASIS OF MATERIAL THAT THE ADMISSION MADE EARLIER WAS NOT IN ACCORDANCE WITH THE MATERIA L OR BOOKS OF ACCOUNT. IN THIS CASE, THE ASSESSEE COULD NOT ESTA BLISH THAT THE ADMISSION M ADE WAS NOT SUPPORTED BY ANY MATERIAL EVIDENCE. EVE N THOUGH THE LEARNED COUNSEL FOR THE ASSESSEE REFERR ED TO THE INCOM E OF RS.1,32,000, IN OUR OPINION, THERE IS NO BASIS FOR COMPLETELY REJECTING THE STATEMENT RECORDED UNDER S.132(4) OF THE INCOM E-TAX ACT....... MISC. APPLN. NO.179/HYD/2011 (IN IT(SS)A NO.10/HYD/2002) SHRI A.BALAKSIRHNA RAO, HYDERABAD 3 FROM THE ABOVE, IT IS CLEAR THAT THE TRIBUNAL HAS T AKEN A CONSCIOUS DECISION AND HAS GIVEN A SPECIFIC FINDING THAT THERE IS NO BASIS FOR COMPLETELY REJECTING THE STATEMENT RECORDED UNDER S .132(4) OF THE ACT. ALL THAT THE ASSESSEE IS SEEKING BY THE PRESENT APP LICATION IS A MERE REVIEW OF THE ORDER OF THIS TRIBUNAL DATED 30 TH APRIL, 2007, WHICH IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF PATENT A ND OBVIOUS ERRORS APPARENT FROM RECORD. WE ARE SUPPORTED IN THIS BEHA LF BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/ S. ITAT & AR. (206 ITR 126), WHEREIN IT WAS HELD AS UNDER- 'THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE ST ATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINE ATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS A SSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POW ER OF RECTIFICATION WHICH IS SPECIFICALLY CONFERRED ON TH E TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHEREN T POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATI C THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFER RED; IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE APPARENT FROM T HE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE , THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR M ISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUM ENTS OR BY A PROCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. IF TWO VIEWS ARE POSSIBLE ON A POI NT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECOR D. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SE LF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT TO REWRITE THE ORDER.' 5. EVEN IF THERE IS ANY MISTAKE IN THE FINDING OF THE TRIBUNAL AS ALLEGED BY THE ASSESSEE IN THE PRESENT APPLICATION, IT IS NOT AN OBVIOUS OR PATENT MISTAKE APPARENT FROM RECORD, IT IS SO PROJE CTED BY THE ASSESSEE, ONLY BY DISPUTING THE FINDINGS OF THE TRIBUNAL, AND SEEKING RECTIFICATION OF THE SAME BY REVIEWING OUR ORDER BY REAPPRAISING THE EVIDENCES AND CONTENTIONS OF THE PARTIES BEFORE US, SINCE SUCH A REVIEW IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THESE MISC. APPLN. NO.179/HYD/2011 (IN IT(SS)A NO.10/HYD/2002) SHRI A.BALAKSIRHNA RAO, HYDERABAD 4 APPLICATIONS OF THE ASSESSEE ARE DEVOID OF MERIT, AND THE SAME ARE ACCORDINGLY REJECTED. 6. IN THE RESULT, ASSESSEES MISCELLANEOUS APPLICA TION IS REJECTED. ORDER PRONOUNCED IN THE COURT ON 06.07.2012 SD/- SD/- (D.KARUNAKARA RAO) (SAKTIJIT DEY) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/- 6 TH JULY, 2012 COPY FORWARDED TO: 1. 2. 3. SHRI A.BALAKRISHNA RAO, 3 - 5 - 170/C/1, NARAYANAGUDA, HYDERABAD ASST. COMMISSIONER OF INCOME-TAX CIRCLE 1(1), HYDER ABAD COMMISSIONER OF INCOME-TAX(APPEALS) V HYDERABAD 4. COMMISSIONER OF INCOME - TAX 4 , HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD B.V.S.