SHAKTI CABLE INDUSTRIES, V. ITO WD 22(3)(2),

MA 199/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3647 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 1994-1995
• Appeal Filed On: 31-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Unexplained cash credit; Depreciation; Rectification of order; Principle of natural justice; Period of limitation; Application of stay; Additional evidence; Question of law; Validity of assessment; Bogus loan; Revised return; Reason to believe; Reassessment proceedings
• Section: 133(6); 147; 68; 148; 37; 12; 154; 2

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI- J,BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT ME MBER & SANJAY GARG,JUDICIAL MEMBER MA NO.199-201/MUM/2015(ARISING OUT OF ITA/3753-55/M UM/2008)-ASSESSMENT YEARS 1994-95TO1996-9 7 SHAKTI CABLE INDUSTRIES C/O., K.G. SHAH & COMPANY 57,D.V.PRADHAN ROAD,HINDU COLONY, LANE NO.1, DADAR,MUMBAI-400 014. PAN: AAAFS 1211 R VS. INCOME-TAX OFFICER WARD 22(3)-2 MUMBAI. ( / APPLICANT ) ( / RESPONDENT) APPLICLANT BY : MS. RITIKA AGARWAL RESPONDENT BY : SHRI M.M. CHATE / DATE OF HEARING : 11.09.2015 / DATE OF PRONOUNCEMENT : 28-10-2015 / O R D E R PER RAJENDRA,ACCOUNTANT MEMBER : , - MA/19 9/MUM/2015,AY.1994-95: VIDE ITS MISCELLANEOUS APPLICATIONS,ALL DATED 28 TH AUGUST,2015 ,THE ASSESSEE HAS CONTENDED THAT THE ORDER OF THE TRIBUNAL,DATED 15.06.2012,CON TAINED CERTAIN MISTAKES APPARENT FROM THE RECORD,THAT SAME HAVE TO BE RECTIFIED,AS PER THE PR OVISIONS OF THE SECTION 254(2) OF THE ACT,THAT THE ASSESSEE HAD FILED A WRIT PETITION BEFORE THE H ONBLE BOMBAY HIGH COURT,THAT THE HONBLE COURT VIDE ITS ORDER, DATED 8.2.2013,DIRECTED THE A SSESSEE TO AVAIL ALTERNATE APPELLATE REMEDY U/S.260A OF THE ACT,THAT IT HAD FILED AN APPEAL BEF ORE THE HONBLE COURT,THAT WHILE HEARING THE APPEAL THE HONBLE COURT HAD PASSED AN ORDER ON 19. 8.2015 EXPRESSING AN OPINION THAT IT WOULD BE APPROPRIATE FOR THE ASSESSEE TO PREFER A M ISCELLANEOUS APPLICATION BEFORE THE TRIBUNAL. 2. THE ASSESSEE HAS FURTHER CONTENDED THAT PARAGRAPHS 15 TO 18 OF THE ORDER OF THE TRIBUNAL DEALT WITH VALIDITY OF ASSESSMENT,THAT THE TRIBUNAL HAD DISMISSED THE GROUND ON THE BASIS THAT THE ISSUE HAD ATTAINED FINALITY DUE TO CONCESSION B Y THE COUNSEL IN THE FIRST ROUND OF PROCEEDINGS, THAT TWO IMPORTANT JUDGMENTS I.E.SACHI N S.HUNDEKARI [(2011)(1)ALLMR, 804)] AND CENTRAL COUNCIL FOR RESEARCH IN AYURVEDA SIDDHA AND ANOTHER VS. DR. K. SANTAKUMARI [(AIR)2001/SC-2306)]WERE NOT CONSIDERED BY THE BENC H,THAT REGARDING VALIDITY OF REASSESS - MENT WAS DISMISSED BY THE TRIBUNAL,THAT THE REASONS RECORDED FOR REOPENING OF ASSESSMENT CONTAINED PATENTLY ERRONEOUS AND FATAL ASSUMPTION,T HAT THE REASONS RECORDED DID NOT SATISFY THE PRE-REQUISITE OF VALID RE-OPENING OF ASSESSMENT ,THAT THE GROUND REGARDING THE VALIDITY OF REASSESS -MENT WAS DISMISSED IGNORING THE SUBMISSIO N OF THE ASSESSEE,THAT PARAGRAPHS 19 AND 20 OF THE ORDER OF THE TRIBUNAL DEALT WITH LACK OF JURISDICTION IN ABSENCE OF ORDER U/S.127 OF THE ACT, THAT TRIBUNAL HAD WRONGLY MENTIONED THAT A SSESSEE HAD NOT MADE SPECIFIC SUBMISSION AT THE TIME OF HEARING,THAT PAPER BOOK FILED BEFORE THE TRIBUNAL CONTAINED A COPY OF ASSESSEES LETTER,DATED 14.5.2008,REQUESTING THE ASSESSING OFF ICER(AO) FOR A COPY OF REASONS RECORDED, PROOF OF SERVICE OF NOTICE U/S.148 OF THE ACT AS WE LL AS A COPY OF NOTIFICATION THROUGH WHICH THE JURISDICTION WAS PURPORTED TO BE TRANSFERRED FR OM ONE AO TO ANOTHER,THAT THE SAID DOCUMENT WAS NOT CONSIDERED BY THE TRIBUNAL WHILE D ECIDING THE ISSUE.WITH REGARD TO OPENING BALANCE OF CASH CREDIT THE ASSESSEE CONTEND ED THAT PARAGRAPH 27 OF THE ORDER OF THE TRIBUNAL REFERRED TO THE SUBMISSIONS OF THE DEPARTM ENTAL REPRESENTATIVE(DR),THAT THE DR HAD ARGUED THAT ASSESSEE HAD NOT TAKEN A PLEA BEFORE TH E AUTHORITIES BELOW THAT A SUM OF RS. 20.85 LACS,BEING OPENING BALANCE FOR THE AY.1994-95 HAD T O BE EXCLUDED WHILE MAKING AN ADDITION MA-199-201/M/15-SHAKTI CABLE INDS. 2 U/S.68 OF THE ACT,THAT THE TRIBUNAL DID NOT REFER T O THE CONTENTS OF THE ORIGINAL REASSESSMENT ORDER DT.26.03.2002,THAT THE ERROR OF OMISSION HAS TO RECTIFIED. 3. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRESENTATIVE(AR)ARGUED THAT THE ASSESSMENT COMPLETED FOR THE AY.1994-95 WAS TIME BA RRED.SHE REFERRED TO PAGE-40,44 OF THE PAPER BOOK AND RELIED UPON THE CASES OF SACHIN S.HU NDEKARI (SUPRA) AND CENTRAL COUNCIL FOR RESEARCH IN AYURVEDA SIDDHA AND ANOTHER(SUPRA).SHE FURTHER STATED THAT THE ASSESSEE HAD FILED CONFIRMATION WITH REGARD TO THE LOANS AND REF ERRED TO PAGE 45 AND 46 OF THE PAPER BOOK. WITH REGARD TO AY.95-96,THE AR CONTENDED THAT TRIBU NAL HAD NOT CONSIDERED THE ARGUMENT THAT THE ASSESSMENT WAS TIME BARRED,THAT IT WAS BEY OND THE PERIOD OF 4 YEARS THAT THE ARGUMENT MADE ON BEHALF OF THE ASSESSEE WERE NOT CONSIDERED. SHE FURTHER ARGUED THAT LETTER ADDRESSED TO THE AO,DATED 14.5.2008,WITH REGARD TO ORDER U/S. 12 7 OF THE ACT WAS NOT CONSIDERED,THAT THE ARGUMENTS WITH REGARD TO CHALLENGING THE ORDER WAS U/S.127 WERE ALSO NOT DEALT WITH BY THE TRIBUNAL. BRIEF HISTORY OF THE CASE: 4. ASSESSEE FIRM IS ENGAGED IN THE BUSINESS OF MANUFAC TURING ELECTRIC WIRES.IT FILED THE RETURN OF INCOME ON 31.10.1994,DECLARING TOTAL INCOME OF R S.17,361/-.A REVISED RETURN WAS FILED ON 25.11.1994,DECLARING LOSS OF RS.1,87,253/-.THE ORIG INAL ASSESSMENT WAS COMPLETED ON 09.12. 1996 U/S.143(3) OF THE ACT COMPUTING THE TOTAL LOSS AT RS.1.87 LACS. THE AO REOPENED THE ASSESSMENT INVOKING THE PROVISI ONS OF SECTION 147.IN RESPONSE TO THE NOTICE ISSUED U/S. 148 OF THE ACT,THE ASSESSEE STAT ED THAT RETURN FILED EARLIER MIGHT BE TREATED AS FRESH RETURN.THE AO MENTIONED THAT WHILE FINALISING THE ASSESSMENT OF THE YEAR 1997-98 THAT THE ASSESSEE DID NOT FILE LOAN CONFIRMATION IN RESP ECT OF UNSECURED LOANS FOR THAT AY., THAT THE AMOUNT IN QUESTION WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDITS U/S.68 OF THE ACT, THAT THE ASSESSEE HAD TAKEN UNSE CURED LOAN FROM SIMILAR PARTIES FOR THE YEAR UNDER CONSIDERATION,THAT THE ASSESSMENT WAS RE-OPEN ED BY ISSUE OF NOTICE U/S. 148 OF THE ACT,THAT THE ASSESSEE DID NOT FURNISH ANY CONFIRMAT ION, THAT IT ONLY FILED A STATEMENT OF LOANS AND INTEREST,THAT IT HAD RAISED LOANS OF RS.68.18 LACS DURING THE YEAR,THAT HE HAD NO ALTERNATIVE BUT TO TREAT THE AMOUNT OF UNSECURED LOAN RAISED DU RING THE AY.UNDER CONSIDERA -TION AS UNEXPLAINED CAPITAL,THAT THE ASSESSEE HAD PAID INTE REST OF RS.13.08 LACS DURING THE YEAR, HE COMPLETED THE ASSESSMENT,ON 26.03.2002 U/S.143(3) R .W.S.147 OF THE ACT,DETERMINING ITS INCOME AT RS.79.38 LACS AFTER MAKING ADDITION OF RS .81,26,031/-(RS.68.18 LACS +RS.13.08 LACS) ON ACCOUNT OF UNSECURED LOANS AND INTEREST. 5. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM,THE ASSESSEE CH ALLENGED THE REASSESSMENT PROCEEDINGS INITIATED U/S.147 OF THE ACT FOR THE AY.UNDER APPEA L.WHILE DECIDING THE APPEAL, ON 11.6. 2002,THE FAA OBSERVED THAT THE ASSESSEE HAD NOT FIL ED LOAN CONFIRMATIONS IN ANY OF THE ABOVE MENTIONED THREE AY.S,THAT THE NAMES OF THE CREDITOR S WERE APPEARING ON SCHEDULE E OF THE BALANCE SHEET, THAT THEIR ADDRESSES AND CONFIRMATIO NS WERE NEVER FILED,THAT IT HAD NOT FILED ANY CONFIRMATION EVEN DURING THE REGULAR ASSESSMENT PRO CEEDINGS FOR THE AY.1999-2000,THAT THERE WAS NO ILLEGALITY IN ISSUANCE OF NOTICE U/S. 148 OF THE ACT.HE REFERRED TO THE CASE OF PRADEEP KUMAR(229ITR46)OF THE ALLAHABAD HIGH COURT AND UPHELD THE RE-OPENING.HE FURTHER OBSERVED THAT THE ASSESSEE HAD CLAIMED UNCONFIRMED /BOGUS LOANS IN THE BOOKS OF ACCOUNT,THAT SIMPLY FILING OF BALANCE SHEET AND P&L ACCOUNT WAS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE TRANSACTION.REFERRING TO THE JUDGMENTS OF D R. AMINS PATHOLOGY LABORATORY(252 ITR 673); PHOOL CHAND BAJRANG LAL AND ANOTHER(203 ITR 4 56) AND RAYMOND WOOLLEN MILLS (236 ITR 34),HE HELD THAT DURING THE COURSE OF REGULAR A SSESSMENT AND REASSESSMENT IT DID NOT FILE CONFIRMATORY LETTERS FROM THE CREDITORS,THAT THE AS SESSEE HAD BEEN TAKING LOANS IN ALL THESE MA-199-201/M/15-SHAKTI CABLE INDS. 3 YEARS, THAT EVEN AFTER THAT IT DID NOT FILE LETTERS CONFIRMING THE TRANSACTIONS,THAT PROPER ADDRESSES OF THE CREDITORS WERE NOT FURNISHED BEFOR E AO,THAT THE IDENTITY OF THE CREDITORS WERE NOT ESTABLISHED,THAT LONG TIME HAD PASSED AFTER FIL ING RETURN OF INCOME AND CLOSING OF ACCOUNTS,THAT EVEN THEN BASIC INFORMATION WAS NOT M ADE AVAILABLE TO THE AO,THAT ASSESSEE HAD TAKEN A NUMBER OF ADJOURNMENTS DURING APPELLATE PRO CEEDINGS,THAT IT DID NOT FILE ANY EVIDENCE PROVING THE GENUINENESS OF THE CASH CREDITS THAT SU FFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE. 6. THE ASSESSEE FILED AN APPLICATION,BEFORE THE TRIBUN AL,FOR STAY OF DEMAND(SA.NO.273/M/ 2005,DATED23.8.2005).SH.ARVIND SHONDE,AR,APPEARED O N BEHALF THE ASSESSEE.WHILE DECIDING THE STAY APPLICATION,THE TRIBUNAL OBSERVED AS UNDER : 3.THE LD.COUNSEL FOR THE ASSESSEE INVITED OUR ATTE NTION TO THE BALANCE SHEET AS ON 31.3.1993, AT PAGE 28 OF THE PAPER BOOK, WHEREIN AN AMOUNT OF RS.56,35,570/- IS MENTIONED AS UNSECURED LOANS,THEREFORE,HE SUBMITTED,IN ANY CASE THIS CANNO T BE TREATED AS IN THE HANDS OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. THE TRIBUNAL DID NOT GRANT STAY,BUT THE MATTER WAS TAKEN UP FOR HEARING UNDER THE CATEGORY OF EARLY HEARING CASE. 7. IN THE REGULAR APPEAL,WHILE CHALLENGING THE ORDER O F THE FAA OF 11.6.2002,BEFORE THE TRIBUNAL,THE ASSESSEE RAISED NINE GROUNDS.OUT OF T HE NINE GROUNDS, FIRST TWO GROUNDS WERE ABOUT RE-OPENING OF ASSESSMENT BY ISSUE OF NOTICE U /S.148 OF THE ACT.THE THEN AR SH.SHONDE DID NOT PRESS THE GROUNDS RELATED WITH RE-OPENING.T HE TRIBUNAL,IN ITS ORDER DATED 29.9. 2005, HELD AS UNDER : 1.THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAI NST THE CONSOLIDATED ORDER OF THE CIT(A) FOR THE ASSESSMENT YEARS 1994-95, 1995-96 AND 1996- 97.SINCE COMMON ISSUES WITH REGARD TO VALIDITY OF THE RE-OPENING OF THE ASSESSMENT UNDER SEC.147 AND THE ADDITIONAL MADE UNDER SEC.68 ARE RAISED,ALL THESE APPEALS WERE HEARD TOGE THER AND THESE ARE BEING DISPOSED OFF BY THE SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVE NIENCE 2.DURING THE COURSE OF HEARING,THE LD.COUNSEL FOR T HE ASSESSEE HAD OPTED NOT TO PRESS GROUND RELATING TO RE-OPENING OF THE ASSESSMENT IN THESE A PPEALS.ACCORDINGLY THIS GROUND IS DECIDED AGAINST THE ASSESSEE...... ON MERITS OF THE CASE,THE-THEN-AR,CONTENDED THAT AS SESSEE COULD NOT OBTAIN THE RECORDS WITH REGARD TO THE LOANS,THAT SAME SHOULD BE ADMITTED.AD DITIONAL EVIDENCES,PRODUCED BY THE ASSESSEE,WERE TAKEN ON RECORD BY THE TRIBUNAL.WE AR E REPRODUCING THE RELEVANT PART OF THE ORDER OF THE TRIBUNAL: 3.THE OTHER GROUND RELATE TO THE POINT OF ADDITION OF RS.68,18,021/- IN THE ASSESSMENT YEAR 1994-95, RS.34,46,867/- IN ASSESSMENT YEAR 1995-96 AND RS.32,28,067/- IN ASSESSMENT YEAR 1996-97 MADE U/S. 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED BORROWED FUNDS. DURING THE COURSE OF THE HEARING, THE LD. COUNSEL FOR THE ASSE SSEE HAS FILED BUNCH OF EVIDENCE COMPANY COMPRISING OF CONFIRMATION LETTERS OF MOST OF THE CREDITORS WITH A REQUEST TO ADMIT THEM AS ADDITIONAL EVIDENCE AS THEY WERE NOT FILED EITHER B EFORE THE ASSESSING OFFICER OR THE CIT(A). 5.HAVING CAREFULLY EXAMINED THE DOCUMENTS FILED BEF ORE US, WE FIND THAT BEFORE THE LOWER AUTHORITIES, THE ASSESSEE COULD NOT FILE THE EVIDEN CE DUE TO REASON STATED IN THE APPLICATION OF THE ASSESSEE. ON PERUSAL OF THE CONFIRMATION LETTER S, WE FIND SOME FORCE IN THE CONTENTION OF THE ASSESSEE AS WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) WITH REGARD TO THE ADDITIONS MADE UNDER SECTION 68 OF THE I.T. ACT AND RESTORE I T TO THE FILE OF THE ASSESSING OFFICER FOR ITS RE-ADJUDICATION IN THE LIGHT OF CONFIRMATION LETTE RS FILED BEFORE US BY THE ASSESSEE, AFTER ADMITTING IT TO BE AN ADDITIONAL EVIDENCE. 6. IN THESE APPEALS, THE ASSESSEE HAS ALSO RAISED O NE MORE ISSUE RELATING TO DISALLOWANCE OF INTEREST PAID ON THE BORROWED FUNDS.SINCE THIS ISSU E RELATES TO THE EARLIER ISSUES, IT SHOULD ALSO BE RE-ADJUDICATED BY THE ASSESSING OFFICER .ACCORDI NGLY, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION OF THE IM PUGNED ISSUE OF ADDITIONS MADE UNDER SECTION 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINE D BORROWED FUNDS. MA-199-201/M/15-SHAKTI CABLE INDS. 4 WHILE COMPLETING THE ASSESSMENT U/S.143(3) R.W.S. 2 54 OF THE ACT,IN PURSUANCE OF THE ABOVE ORDER OF THE TRIBUNAL,THE AO HELD THAT THE ASSESSEE HAD FAILED TO PRODUCE THE LOAN CONFIRMATION LETTERS WITH REGARD TO RS.65.33 LACS.S O, HE MADE THE ADDITION OF THE SAID AMOUNT TO THE INCOME OF THE ASSESSEE. 8 .AGAINST THE SAID ORDER OF THE AO,THE ASSESSEE FILE D FOLLOWING GROUNDS OF APPEAL BEFORE THE FAA: 1.THE LEARNED INCOME TAX OFFICER ERRED IN ASSESSIN G THE TOTAL INCOME OF THE APPELLANT AT RS.76,53,778/- AS AGAINST RETURNED INCOME OF RS.17, 361/-. 2. THE LEARNED INCOME TAX OFFICER ERRED IN TREATING UNSECURED LOANS AMOUNTING TO RS.65,33,021/- AS INCOME OF THE APPELLANT U/S. 68. 3. THE LEARNED INCOME TAX OFFICER FAILED TO APPRECI ATE THAT THE SAID LOANS WERE GENUINE BORROWINGS FROM LENDERS WHO HAD CAPACITY TO LEND TH E LOANS. 4. THE LEARNED INCOME TAX OFFICER FAILED TO APPRECI ATE THAT THE LENDERS WERE NOT CO-OPERATING WITH THE APPELLANT AND MERE NON CO-OPERATION OF LEN DERS DOES NOT DISPROVE THE GENUINENESS OF LOANS. 5.WITHOUT PREJUDICE, THE LEARNED INCOME TAX OFFICER FAILED TO APPRECIATE THAT EVEN IF ASSESSEE HAS NOT DISCHARGED ONUS OF PROOF U/S. 68, THE SAID LOANS WERE NOT INCOME OF THE APPELLANT. 6. THE LEARNED INCOME TAX OFFICER FAILED TO APPRECI ATE THAT THE APPELLANT WAS PREVENTED BY A REASONABLE & SUFFICIENT CAUSE FROM FURNISHING THE E VIDENCES IN SUPPORT OF GENUINENESS OF LOANS BORROWED. 7. THE LEARNED INCOME TAX OFFICER ERRED IN DISALLOW ING RS.13,08,010/- OUT OF INTEREST PAID ON ACCOUNT OF UNSECURED LOANS DISBELIEVED. BEFORE THE FAA,THE ASSESSEE FILED AN APPLICATION UN DER RULE 46A OF THE INCOME TAX RULES, 1962 FOR ADMISSION OF ADDITIONAL EVIDENCES.THE FAA, FOLLOWING THE PRINCIPLE OF NATURAL JUSTICE,ADMITTED THE ADDITIONAL EVIDENCE AND REMAND ED THE MATTER TO THE AO TO GIVE REASON - ABLE OPPORTUNITY TO THE ASSESSEE TO PRODUCE CONFIRM ATION/PARTIES FOR EXAMINATION.HE GAVE THREE MONTHS TIME TO THE ASSESSEE TO PRODUCE THE DO CUMENTARY EVIDENCES OR THE PARTIES BEFORE THE AO FOR EXAMINATION.THE AO FILED REMAND REPORT O N 18.10.2007.IN ITS REPORT,THE AO MENTIONED THAT OPPORTUNITY TO PROVE THE GENUINENESS OF LOANS AND INTEREST WAS GIVEN TO THE ASSESSEE ON VARIOUS OCCASIONS RIGHT FROM FEBRUARY TO DECEMBER, 2006,THAT THE ASSESSEE DID NOT AVAIL ANY OF THE OPPORTUNITIES.THE FAA FURTHER ASKED THE AO TO FILE ONE MORE REMAND REPORT.VIDE HIS LETTER DT.30.1.2008,THE AO DIRECTED THE ASSESSEE TO PRODUCE THE CREDITORS WITH SUPPORTING DOCUMENTARY EVIDENCES,HE DIRECTED THE AS SESSEE TO FURNISH THE YEAR WISE DETAILS OF INTEREST PAID ON LOANS AND THE DETAILS OF SUBSEQUEN T REPAYMENT OF LOANS. BUT IT DID NOT FURNISH THE REQUISITE INFORMATION CALLED FOR BY THE AO FOR ANY OF THE THREE AY.S. UNDER APPEAL. IN HIS REPORT,HE FURTHER MENTIONED THAT ASSESSEE HAD PAID INTEREST OF RS.24,450/- AND RS.20,000/- FOR AY.S.1994-95 AND 1995-96 IN RESPECT OF EIGHT PARTIE S,THAT SAME COULD BE ALLOWED.A FURTHER REMAND REPORT WAS SUBMITTED ON 14.3.2008. AFTER CONSIDERING THE REMAND REPORTS AND THE SUBMIS SIONS OF THE ASSESSEE,THE FAA HELD THAT THE ASSESSEE WAS GIVEN A PERIOD OF ALMOST ONE YEAR TO PRODUCE THE DOCUMENTARY EVIDENCES AND TO PROVE THE GENUINENESS OF LOANS,THAT TIME WAS ALL OWED AFTER ADMITTING ADDITIONAL EVIDENCES, THAT IN PURSUANCE OF THE DIRECTION OF THE TRIBUNAL THE AO HAD GIVEN NUMBER OF OPPORTUNITIES TO THE ASSESSEE TO PRODUCE THE CONFIRMATION ALONG W ITH THE COPIES OF BANK STATEMENT AND COPIES OF INCOME TAX RETURN,THAT THE ASSESSEE HAD S UBMITTED 98 CONFIRMATION OUT OF 145 PARTIES WITHOUT ANY SUPPORTING DOCUMENT BEFORE THE AO, THAT THE ASSESSEE HAD NOT FILED CONFIRMATION LETTER IN RESPECT OF 47 PARTIES AT ALL,THAT THE CON FIRMATION FILED BEFORE THE AO WERE ONLY AFFIDAVITS OF THE BROKER ALONG WITH THE NAME OF THE PARTIES WITHOUT ADDRESS,PAN AND BANK STATEMENT, THAT OUT OF 98 SO CALLED CONFIRMATION LE TTERS THE AO HAD ISSUED NOTICE U/S. 133(6) OF THE ACT,THAT OUT OF THEM ONLY EIGHT PARTIES HAD FIL ED CONFIRMATION WITH THE DOCUMENTARY EVIDENCES,THAT SUMMONS TO 98 PARTIES WERE NOT SERVE D AS CLAIMED BY THE ASSESSEE ,THAT THE AO HAD ISSUED NOTICE WHERE THE ADDRESSES WERE PROVIDED BY THE ASSESSEE,THAT IT DID NOT MEAN THAT MA-199-201/M/15-SHAKTI CABLE INDS. 5 NOTICES WERE SERVED IN ALL THE CASES.HE FURTHER HEL D THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE PRIME RESPONSIBILITY TO ESTABLISH THE IDENTITY AND CREDIT WORTHINESS OF THE CREDITORES AND GENUINENESS OF THE TRANSACTIONS, THAT MERELY FILING OF AN AFFIDAVIT OF A BROKER WITH THE NAMES OF THE LENDERS COULD NOT BE CALLED A CONFIRMATION,T HAT THE CONFIRMATION ALONG WITH THE BANK STATEMENT, MODE OF PAYMENT/RECEIPT WERE NEVER MADE AVAILABLE TO THE AO,THAT THE AO HAD ALLOWED LOANS TO THE EXTENT OF RS.2.85 LACS, THAT S OME MORE CONFIRMATIONS WERE FILED WITHOUT ANY DOCUMENTARY EVIDENCES, THAT VIDE HIS LETTER DT. 15.12.2006 THE AO HAD GIVEN ANOTHER OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE PARTIES FOR VERIFICATION, THAT ASSESSEE FAILED TO PRODUCE ANY OF THE PARTIES BEFORE THE AO,THAT THE C ERTIFICATE OF THE BROKER HAD NO SANCTITY AS IT WAS NOT GIVING DETAILS OF THE BASIC INFORMATION.FIN ALLY,HE HELD THAT IN THE REMAND REPORT THE AO HAD ADMITTED THAT ASSESSEE HAD PROVED GENUINENES S OF THE LOANS TO THE TUNE OF RS.2.85 LACS,THAT INTEREST PAID TO 8 PARTIES AMOUNTING TO R S.24,450/- HAD TO BE ALLOWED,THEREFORE, HE UPHELD THE ADDITION OF RS.12.83 LACS OUT OF RS.13.0 8 LACS ( 13,08,010 24,450). 9. DURING THE SECOND ROUND OF LITIGATION BEFORE THE TR IBUNAL,THE MATTER WAS NOT REPRESENTED BY SH.SHONDE WHO HAD APPEARED BEFORE IT FOR ARGUING TH E STAY APPLICATION AS WELL AS THE REGULAR APPEAL.IT HAS BEEN ARGUED,BY THE PRESENT AR,THAT CO NCESSION GIVEN BY THE EARLIER AR,WITH REGARD TO RE-OPENING OF THE ASSESSMENT,WERE NOT BIN DING ON THE ASSESSEE.SHE MADE OTHER ARGUMENTS AND THE TRIBUNAL DECIDED THE APPEAL ON15. 06.2012.EVENTS TAKING PLACE AFTER THE FILING OF WRIT HAVE BEEN NARRATED IN PAGE NO.1-2 OF THE ORDER. 10. WE ARE OPINION THAT BEFORE PROCEEDING FURTHER,IT WO ULD BE USEFUL TO DISCUSS THE ISSUE OF THE FINALITY OF THE ORDER OF THE APPELLATE AUTHORITIES AND THE SCOPE AND LIMITATIONS OF THE PROVISIONS OF SECTION 254(2)OF THE ACT.WE WOULD ALSO LIKE TO D ISCUSS THE ISSUE OF CONCESSION MADE BY THE AR OF A PARTY AND VARIOUS ISSUE RAISED BY THE ASSES SEE IN THE RECTIFICATION APPLICATION FILED BY IT AND THE ARGUMENTS ADVANCED BY THE AR AND THE DR. 11. FIRST OF ALL WE WOULD LIKE TO DISCUSS THE CONCEPT O F FINALITY OF ORDER OF THE TRIBUNAL.IN THE CASE OF M.S.P.SENTHIL KUMAR(241ITR502)THE HONBLE MADRAS HIGH COURT HAS DEALT WITH THE ISSUE AT LENGTH.FACTS OF THE CASE WERE THAT THE ASS ESSMENT WAS REOPENED BY THE AO FOR THE TWO AY.S.THE ASSESSEE FILED APPEAL RAISING TWO CONTENTI ONS.THE FIRST CONTENTION WAS THAT REOPENING THE ASSESSMENT WAS NOT VALID AND THE SECO ND CONTENTION WAS THAT THE INTEREST PAYMENT BY THE AGRICULTURAL ESTATE HAD BEEN VALIDLY CLAIMED AS A DEDUCTION AGAINST THE INTEREST RECEIPTS OF THE AGRICULTURAL ESTATE.HOWEVER,THESE C ONTENTIONS WERE NEGATIVED BY THE FAA AND THE ASSESSEE APPEALED BEFORE THE TRIBUNAL.THE TIRBU NAL UPHELD THE ORDERS OF REASSESSMENTS AND WITH REGARD TO THE OTHER CONTENTION RESTORED TH E MATTER TO THE FAA.THE FAA SET ASIDE THE ASSESSMENT FOR BEING DONE AFRESH ACCORDING TO LAW,I N ACCORDANCE WITH THE OBSERVATIONS OF THE TRIBUNAL'SORDER.ON THE ASSESSEE'S APPEAL AGAINST TH E ORDERS,THE TRIBUNAL REJECTED THE CONTEN - TION OF THE ASSESSEE BY POINTING OUT THAT THE EARLI ER ORDER DATED 31.07.1978 HAD BECOME FINAL AS THE ASSESSEE DID NOT TAKE UP THE MATTER TO THE H IGH COURT AND THE QUESTION COULD NOT BE CONSIDERED AFRESH.ON A REFERENCE,THE HONBLE COURT FRAMED THE FOLLOWING QUESTION: WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSEE WAS ENTITLED TO RAISE THE QUESTION OF THE VALIDITY OF THE JURISDICTION AS SUMED BY THE INCOME-TAX OFFICER UNDER SECTION 147(B) IN THE COURSE OF PROCEEDINGS TAKEN P URSUANT TO THE RESTORATION OF THE APPEALS TO THE FIRST APPELLATE AUTHORITY BY THE TRIBUNAL BY IT S EARLIER ORDER DATED JULY 31, 1978,..... BEFORE THE HONBLE COURT THE COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE FINDING OF THE TRIBUNAL THAT THE EARLIER ORDER OF THE TRIBUNAL,DAT ED 31.07.1978,HAD BECOME FINAL AND THE QUESTION COULD NOT BE CONSIDERED AFRESH WAS NOT A C ORRECT VIEW AND THAT QUESTION OF REOPENING SHOULD HAVE BEEN CONSIDERED BY THE TRIBUNAL.COUNSEL ,APPEARING FOR THE REVENUE,SUBMITTED THAT THE TRIBUNAL UPHELD THE JURISDICTION AND THE O RDER OF THE TRIBUNAL HAD BECOME FINAL AND MA-199-201/M/15-SHAKTI CABLE INDS. 6 WITHOUT CHALLENGING THE EARLIER ORDER,THE SUBSEQUEN T ORDER COULD NOT BE CHALLENGED.THE HONBLE COURT REFERRED TO THE CASES OF SESHASAYEE P APER AND BOARDS LTD.(157 ITR 342 ), M.K. MOHAMMAD KUNHI(92 ITR 341 ) AND S. P.GRAMOPHONE CO.(160ITR 417 ) DELIVERED BY THE HON BLE HIGH COURTS OF MADRAS,KERALA AND P&H RESPECTIVE LY.IT REFERRED TO THE HEAD NOTE OF SESHASAYEE PAPER AND BOARDS LTD.(SUPRA)WHICH READ A S UNDER: EVEN A WRONG ORDER HAS A FINALITY AND UNLESS THAT FINALITY IS DISTURBED BY A PROCESS KNOWN TO LAW OR BY A PROCESS AUTHORISED BY LAW, THE RIGHT S OF THE ASSESSEE AND THE REVENUE WILL CONTINUE TO BE GOVERNED BY THE ORDER. A DECISION OF THE SUPREME COURT WILL NOT AUTOMATICALLY HAVE THE EFFECT OF VACATING THE ORDER OF THE TRIBUN AL WHICH HAS BEEN STATUTORILY MADE FINAL UNDER SECTION 254(4) OF THE INCOME-TAX ACT, 1961, A ND WHICH HAS ALREADY BEEN GIVEN EFFECT TO. IT ALSO QUOTED THE HEAD NOTE OF THE DECISION IN M. K.MOHAMMAD KUNHI(SUPRA)AND SAME READ AS FOLLOW: WHERE THE APPELLATE TRIBUNAL REMANDS A CASE THE FI NALITY OF VIEWS EXPRESSED BY IT WHILE DOING SO DEPENDS ON THE NATURE OF THE ORDER OF REMA ND. IF THE REMAND IS IN THE NATURE OF CALLING FOR A FINDING AND THE TRIBUNAL KEEPS SEISIN OF THE CASE IT MAY BE PERMISSIBLE FOR THE TRIBUNAL TO RECONSIDER ITS VIEWS. ON THE OTHER HAND , IF THE TRIBUNAL DISPOSES OF THE APPEAL WHILE PASSING THE ORDER OF REMAND AND ANOTHER APPEA L COMES BEFORE THE TRIBUNAL, AGAINST THE ORDER PASSED AFTER THE REMAND, IT HAS NO POWER TO R ECONSIDER THE FINDING OR OPINION. QUESTIONS WHICH HAVE BECOME FINAL AND CONCLUDED BY THE REMAND ORDER CANNOT BE REOPENED. FINALLY,THE HONBLE COURT REFERRED TO THE DECISION IN S.P.GRAMOPHONE CO.,WHEREIN THE COURT HAD HELD THAT IF THE CORRECTNESS OF THE REMAND ORDE R WAS NOT CHALLENGED THROUGH APPROPRIATE PROCEEDINGS,IT WOULD NOT BE OPEN TO REVIEW IT WHEN THE MATTER WOULD COME AGAIN BEFORE THAT AUTHORITY IN APPEAL OR REVISION AGAINST THE ORDER P ASSED BY THE AUTHORITIES BELOW IN ACCORDANCE WITH THE REMAND ORDER.FOLLOWING THE ABOVE DECISIONS ,FINALLY,THE HONBLE COURT HELD AS UNDER: EVEN A WRONG ORDER HAS A FINALITY AND UNLESS THAT F INALITY IS DISTURBED BY A PROCESS KNOWN TO LAW OR BY A PROCESS AUTHORISED BY LAW, THE RIGHTS O F THE ASSESSEE AND THE REVENUE WILL CONTINUE TO BE GOVERNED BY THE ORDER. WHERE THE APP ELLATE TRIBUNAL REMANDS A CASE THE FINALITY OF VIEWS EXPRESSED BY IT WHILE DOING SO DE PENDS ON THE NATURE OF THE ORDER OF REMAND. IF THE REMAND IS IN THE NATURE OF CALLING FOR A FIN DING AND THE TRIBUNAL KEEPS SEISIN OF THE CASE IT MAY BE PERMISSIBLE FOR THE TRIBUNAL TO RECONSIDE R ITS VIEWS. ON THE OTHER HAND, IF THE TRIBUNAL DISPOSES OF THE APPEAL WHILE PASSING THE O RDER OF REMAND AND ANOTHER APPEAL COMES BEFORE THE TRIBUNAL AGAINST THE ORDER PASSED AFTER THE REMAND, IT HAS NO POWER TO RECONSIDER THE FINDING OR OPINION.QUESTIONS WHICH HAVE BECOME FINAL AND CONCLUDED BY THE REMAND ORDER CANNOT BE REOPENED. IF THE CORRECTNESS OF THE REMAN D ORDER WAS NOT CHALLENGED THROUGH APPROPRIATE PROCEEDINGS, IT WOULD NOT BE OPEN TO RE VIEW IT WHEN THE MATTER COMES AGAIN BEFORE THAT AUTHORITY IN APPEAL OR REVISION AGAINST THE ORDER PASSED BY THE AUTHORITIES BELOW IN ACCORDANCE WITH THE REMAND ORDER. IN THE MATTER OF SMT.GOWRI RAJES AND OTHERS(241 ITR 506)THE HONBLE MADRAS HIGH COURT FOUND THAT THE AO HAD REOPENED THE ASSESSMENT OF TH E ASSESSEE U/S.147(B) OF THE ACT AND COMPLETED THE ASSESSMENTS,THAT THE TRIBUNAL HAD UPH ELD THE REOPENING OF THE ASSESSMENT BUT REMITTED THE MATTER TO THE AO TO MAKE A FRESH ASSES SMENT IN ACCORDANCE WITH CERTAIN DIRECTIONS GIVEN BY IT,THAT HE COMPLETED THE ASSESS MENTS IN PURSUANCE OF THE DIRECTIONS OF THE TRIBUNAL,THAT THE ASSESSEE PREFERRED APPEAL BEFORE THE FAA AND ONCE AGAIN QUESTIONED THE POWERS OF THE AO TO REOPEN THE ASSESSMENT,THAT THE FAA AND THE TRIBUNAL HELD THAT SAME WAS NOT PERMISSIBLE.A REFERENCE WAS MADE TO THE THE HON BLE HIGH COURT.DECIDING THE MATTER,THE HONBLE COURT HELD AS UNDER WE ARE OF THE OPINION THAT THE TRIBUNAL HAS COME T O A CORRECT CONCLUSION IN NOT PERMITTING THE ASSESSEE TO REAGITATE THE QUESTION REGARDING TH E JURISDICTION OF THE OFFICER TO REOPEN THE ASSESSMENTS WHICH WAS ALREADY CONCLUDED AGAINST THE ASSESSEE BY AN EARLIER ORDER OF THE APPELLATE TRIBUNAL. WE HAVE SET OUT THE FACTS IN DE TAIL AND THE FACTS ARE CLEAR THAT BY THE EARLIER ORDER, THE APPELLATE TRIBUNAL HAD UPHELD TH E JURISDICTION OF THE INCOME-TAX OFFICER TO REOPEN THE ASSESSMENT UNDER SECTION 147(B) OF THE A CT AND THAT ORDER OF THE APPELLATE MA-199-201/M/15-SHAKTI CABLE INDS. 7 TRIBUNAL HAS BECOME FINAL, SINCE THE ASSESSEE HAS N OT FILED ANY APPLICATION EITHER FOR REFERENCE OR FOR RECTIFICATION UNDER SECTIONS 254(2 ) OR 256(1) OF THE ACT AND BY THE ASSESSEES OWN CONDUCT THE EARLIER ORDER OF THE APPELLATE TRIB UNAL UPHOLDING THE JURISDICTION OF THE INCOME-TAX OFFICER TO REOPEN THE ASSESSMENT HAS BEC OME FINAL. THEREFORE, IT IS NEITHER PERMISSIBLE NOR POSSIBLE FOR THE ASSESSEE TO REAGIT ATE THE QUESTION ONCE AGAIN BEFORE THE SAME FORUM IN SUBSEQUENT PROCEEDINGS INITIATED ON THE BA SIS OF ITS EARLIER DIRECTION. .....WE ARE OF THE OPINION THAT THE DECISION OF THIS COURT RENDERE D IN THE ABOVE TAX CASE WOULD APPLY TO THE FACTS OF THIS CASE AND IT IS NOT OPEN TO THE ASSESS EES ONCE AGAIN TO CHALLENGE THE JURISDICTION OF THE INCOME-TAX OFFICER TO REOPEN THE ASSESSMENT BEF ORE THE TRIBUNAL. THERE ARE FOUR QUESTIONS AND THE FIRST QUESTION OF LAW REFERRED TO US WOULD SUFFICE AND THAT WOULD COVER ALL THE ASPECTS RAISED IN ALL THE FOUR QUESTIONS. ACCORDINGLY, WE A RE OF THE OPINION THAT ALL THE FOUR QUESTIONS SHOULD BE REFRAMED AND ONLY THE FIRST QUESTION OF L AW WHICH IS COMPREHENSIVE AND TAKES IN ALL THE ASPECTS OF THE CASE IS TAKEN AS THE QUESTION RE FERRED TO US IN ALL THE TAX CASES AND WE ANSWER THE QUESTION OF LAW AS REFRAMED BY US IN ALL THE TAX CASES IN THE AFFIRMATIVE AND AGAINST THE ASSESSEE. THE HONBLE JURISDICTIONAL HIGH COURT,IN THE CASE O F JIVATLAL PURTAPSHI(65ITR261)HAS ALSO DEALT WITH THE SIMILAR ISSUE.FACTS OF THE CASE WERE THAT WHILE AN APPEAL BY THE ASSESSEE CHALLENGING AN ADDITION OF RS.4,72,500/-WAS PENDING BEFORE THE FAA,THE ASSESSEE AND THE DEPARTMENT ARRIVED AT A SETTLEMENT,INTER ALIA,THAT THE SAID ADDITION SHOULD BE DELETED FROM THE ASSESSMENT.THE FAA,AFTER RECORDING THE CONCESSION,D ELETED THE AMOUNT AND ALLOWED THE APPEAL.IN SPITE OF THE CONCESSION, THE DEPARTMENT F ILED AN APPEAL TO THE TRIBUNAL CHALLENGING THE CORRECTNESS OF THE DELETION.A PRELIMINARY OBJEC TION RAISED ON BEHALF OF THE ASSESSEE THAT IN VIEW OF THE CONCESSION OF THE DEPARTMENT BEFORE THE FAA,THE APPEAL WAS NOT MAINTAINABLE WAS NEGATIVED BY THE TRIBUNAL AND THE CASE WAS REMA NDED.DECIDING THE MATTER,THE HONBLE COURT HELD THAT THE DEPARTMENT,HAVING AGREED TO DEL ETE THE AMOUNT FROM THE ASSESSMENT AND HAVING CONCEDED THE DELETION BEFORE THE FAA,COULD N OT BE HELD TO BE AGGRIEVED BY THIS PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL TO THE TRIBUNAL; THE APPEAL OF THE DEPARTMENT REGARDING THE DELETION OF THE AMOUNT WAS NEITHER CO MPETENT NOR CAPABLE OF BEING ENTERTAINED BY THE TRIBUNAL. IN THE MATTER OF R. K. SAWHNEY,EXECUTOR OF THE ESTA TE OF LATE R.B.NATHU RAM(166 ITR 128), THE HONBLE DELHI HIGH COURT HAS ALSO DEALT THE IDE NTICAL ISSUE.IN THAT MATTER AN ASSESSMENT WHICH WAS MADE IN MARCH, 1974, ON THE ASSESSEE FOR THE ASSESSMENT YEAR 1971-72 AFTER HIS DEATH,WAS CHALLENGED BY HIS LEGAL REPRESENTATIVES I N AN APPEAL ON THE GROUND THAT NO NOTICE HAD BEEN ISSUED TO THEM BEFORE THE COMPLETION OF TH E ASSESSMENT. THE FAA ACCEPTED THE PLEA BUT, INSTEAD OF ANNULLING THE ASSESSMENT ORDER AS CONTENDED FOR BY THEM,HE SENT THE MATTER BACK TO THE AO TO COMPLETE THE ASSESSMENT AFTER DUE NOTICE TO THE LEGAL REPRESENTATIVES.A FURTHER APPEAL WAS TAKEN TO THE TRIBUNAL.THE TRIBUNAL HELD THAT THE COMPLETION OF THE ASSESSMENT WITHOUT PRIOR NOTICE T O THE LEGAL REPRESENTATIVES WAS MERELY AN IRREGULARITY WHICH COULD BE CURED BY SETTING ASIDE THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT TO BE MADE AFTER PROPER NOTICE.IT ALSO R EJECTED THE CONTENTION THAT BY SETTING ASIDE THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT,THE TRIBUNAL WOULD BE EXTENDING THE ORDINARY PERIOD OF LIMITATION AVAILABLE FOR COMPLETION OF AN ASSESSMENT SINCE REASSESSMENT PURSUANT TO SUCH A DIRECTION WOULD BE GOVERNED BY SECTION 153(3 ) OF THE ACT, AND THE BAR OF LIMITATION ORDINARILY APPLICABLE WOULD BE REMOVED.THEREAFTER, A FRESH ASSESSMENT WAS MADE ON THE EXECUTOR OF THE ESTATE OF THE ASSESSEE ON 10.09.197 9.THE FAA REJECTED THE CONTENTION THAT THE ASSESSMENT WAS BARRED BY LIMITATION AND COULD NOT B E SAVED BY A DIRECTION OF THE TRIBUNAL WHICH WAS CLAIMED TO BE INVALID.THE TRIBUNAL, ON FU RTHER APPEAL,REJECTED THE CONTENTIONS ON THE SHORT GROUND THAT THEY HAD ALREADY BEEN RAISED IN THE EARLIER APPEAL,THE TRIBUNAL HAD DISPOSED OF THEM IN THE EARLIER ORDER AND,THOUGH TH E TRIBUNAL REJECTED A REFERENCE APPLICATION, THE MATTER HAD NOT BEEN PURSUED UNDER SECTION 256(2 ) WITH THE RESULT THAT THE EARLIER ORDER OF THE TRIBUNAL BECAME FINAL.ON THE TRIBUNAL REJECTING AN APPLICATION FOR REFERENCE,THE EXECUTOR MA-199-201/M/15-SHAKTI CABLE INDS. 8 APPLIED TO THE HIGH COURT FOR AN ORDER DIRECTING TH E TRIBUNAL TO STATE A CASE THE HONBLE COURT HELD AS UNDER: IT IS A SETTLED PRINCIPLE OF LAW THAT THERE SHOULD BE A FINALITY OF LEGAL PROCEEDINGS. WHEN THE ASSESSMENT WAS MADE IN THE FIRST INSTANCE, THE ASSE SSEE RAISED IN THE APPEAL FILED BY IT THE CONTENTIONS THAT THE ASSESSMENT WAS VOID AND ILLEGA L, THAT THE TRIBUNAL WAS NOT COMPETENT TO GIVE A DIRECTION VALIDLY UNDER SECTION 153(3) AND T HAT THE PROPER COURSE TO BE ADOPTED BY THE TRIBUNAL WAS TO ANNUL THE ASSESSMENT AND NOT TO SET ASIDE THE SAME AND DIRECT THE INCOME-TAX OFFICER TO MAKE A FRESH ASSESSMENT. THESE CONTENTIO NS WERE DULY CONSIDERED BY THE TRIBUNAL AND WERE REJECTED. THEY HAVE BECOME FINAL IN TERMS OF SECTION 254(4) OF THE ACT, THERE HAVING BEEN NO REFERENCE FROM THE ORDER OF THE TRIBUNAL. T O PERMIT THE ASSESSEE TO RAISE THESE CONTENTIONS ONCE AGAIN WILL OFFEND THE RULE OF FINA LITY OF JUDICIAL PROCEEDINGS..... IN M. SYED ALAVI V. STATE OF KERALA [1981] 48 STC 150 (KER) [F B], IT WAS POINTED OUT BY THE FULL BENCH OF THE KERALA HIGH COURT THAT WHERE MATTERS ARE DEC IDED BY ONE APPELLATE AUTHORITY IN THE FIRST INSTANCE,THAT APPELLATE AUTHORITY WOULD BE BO UND BY THE SAID ORDER AND CANNOT CONSIDER THOSE CONTENTIONS AGAIN WHEN THE MATTER SUBSEQUENTL Y COMES UP AFTER REMAND. IN THAT CASE, INITIALLY, THE APPELLATE ASSISTANT COMMISSIONER HAD DISPOSED OF THE APPEAL. WHEN THE SAME POINTS WERE URGED WHEN THE ASSESSMENT WAS MADE ON R EMAND, THE KERALA HIGH COURT POINTED OUT THAT UP TO THE STAGE OF THE APPELLATE ASSISTANT COMMISSIONER THAT WOULD BE FINAL, BUT THAT IT WOULD BE OPEN TO THE TRIBUNAL TO CONSIDER THE CO NTENTIONS IF RAISED BEFORE IT. ON THE SAME PRINCIPLE, IN THE PRESENT CASE, THE CONTENTIONS HAV ING BEEN RAISED AND DECIDED BY THE TRIBUNAL, IT WAS NOT OPEN TO THE TRIBUNAL TO RECONS IDER THESE CONTENTIONS AND THE PROPER AND APPROPRIATE REMEDY OF THE ASSESSEE WAS TO FILE A RE FERENCE APPLICATION AND PURSUE THE SAME AGAINST THE ORIGINAL ORDER OF THE TRIBUNAL. THE DECISION OF THE SUPREME COURT IN THE CASE OF CI T V. RAO THAKUR NARAYAN SINGH [1965] 56 ITR 234, THOUGH RENDERED IN A SLIGHTLY DIFFERENT CONTEXT, ALSO LAYS DOWN THE PRINCIPLE OF FINALITY ABOVE REFERRED TO. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE VIEW TAKEN BY THE TRIBUNAL WAS OBVIOUSLY THE CORRECT VIEW AND THE ONLY VIEW POSSIBLE IN THE CIRCUMSTANCES. WE, THEREFORE, DO NOT SEE ANY JUSTIFICATION FOR CAL LING FOR A REFERENCE ON THIS QUESTION. THE HONBLE KERALA HIGH COURT,IN THE CASE OF SWARAJ MOTORS (P.)LTD.(167 ITR 83) FOUND THAT CERTAIN ASSETS,BELONGING TO THE ASSESSEE-COMPANY,WE RE TRANSFERRED TO THE TRANSFEREE COMPANY ON THE BASIS OF AN ORDER UNDER SECTION 394(2) OF TH E COMPANIES ACT, 1956, AND THE CAPITAL OF THE ASSESSEE REPRESENTING THE VALUE OF THOSE ASSETS WAS ACCORDINGLY REDUCED. THE AO INCLUDED A SUM OF RS. 19,672 AS INCOME OF THE ASSESSEE ON TH E BASIS OF A COMPUTATION MADE UNDER SECTION41(2)OF THE ACT.THE FAA HELD THAT THE PROFIT ADDED UNDER SECTION 41(2) WAS NOT CORRECTLY COMPUTED BY THE AO AND HENCE ISSUED A DIR ECTION TO THE HIM FOR RE-COMPUTATION OF THE PROFIT IN TERMS OF SECTION 41(2). THE ASSESSEE DID NOT CHALLENGE THIS ORDER OF THE FAA.THE AO COMPLETED THE ASSESSMENT IN ACCORDANCE WITH THE DIRECTIONS OF THE FAA AND THE PROFIT WAS RECOMPUTED.THE APPEAL OF THE ASSESSEE AGAINST T HE RE-COMPUTATION MADE BY THE AO WAS REJECTED BY THE FAA.THE TRIBUNAL HELD THAT THERE WA S NO SALE OF ASSETS BY REASON OF TRANSFER PURSUANT TO ORDERS MADE UNDER SECTION 394(2) OF THE COMPANIES ACT. ON A REFERENCE,THE REVENUE CONTENDED THAT THE ORDER OF THE FAA DIRECTING THE AO TO RECOMPUTE THE PROFIT IN TERMS OF SECTION 41(2) WHIC H WAS A FINAL ORDER WAS NOT CHALLENGED BY THE ASSESSEE,THAT THE SUBSEQUENT PROCEEDING WAS ONL Y IN OBEDIENCE TO THAT ORDER, THAT THE ORDER OF THE AAC WAS THUS RES JUDICATA IN SO FAR AS THE A SSESSEE WAS CONCERNED IN RESPECT OF THE PROFIT U/S.41(2)AND THAT THE TRIBUNAL HAD NO JURISD ICTION TO CONSIDER THE AMBIT AND APPLICATION OF SECTION 41(2) IN THE APPEAL FILED AGAINST THE FI NAL ORDER OF THE FAA.DECIDING THE ISSUE THE HONBLE COURT HELD AS UNDER : '.. THE TRIBUNAL HAD NO JURISDICTION TO INTERFERE W ITH THE FINAL ORDER OF THE APPELLATE ASSISTANT COMMISSIONER IN REGARD TO THE APPLICABILITY OF SECT ION 41(2). FINALLY,WE WOULD LIKE TO REFER TO THE MATTER OF ORI SSA CEMENT LTD.(211 ITR 420), DELIVERED BY THE HONBLE DELHI HIGH COURT.IN THAT MATTER THE ASS ESSEE HAD PAID ADVANCE TAX. THE ASSESSMENT HAVING BEEN COMPLETED AT A FIGURE WHERE THE TAX PAID CAME TO BE MORE THAN THE MA-199-201/M/15-SHAKTI CABLE INDS. 9 TAX ASSESSED, THE ASSESSEE FILED AN APPEAL AGAINST THE ASSESSMENT ORDER.THE APPEAL FILED BY IT WAS ALLOWED AND THE AO WAS DIRECTED TO GIVE EFFECT TO THE SAID APPELLATE ORDER.THE AO GAVE EFFECT TO THE ORDER IN THE APPEAL AND BECAUSE THE T AX PAYABLE WAS LESS THAN THE TAX WHICH HAD BEEN PAID, THE AO HELD THAT THE ASSESSEE WAS ENTITL ED TO INTEREST U/S.244(1A) OF THE ACT. THE AO SPECIFICALLY HELD THAT NO OTHER INTEREST WAS ALL OWED TO THE ASSESSEE. THE ASSESSEE FILED AN APPEAL BEFORE THE FAA AND CONTENDED THAT IT WAS ENT ITLED TO INTEREST UNDER SECTION 214 OF THE ACT,AS THE AMOUNT OF ADVANCE TAX WHICH HAD BEEN PAI D WAS MORE THAN THE TOTAL TAX PAYABLE BY IT.THE FAA,VIDE HIS ORDER DATED 09.07.1986,ALLOWED THIS CONTENTION AND HELD THAT THE ASSESSEE HAD BECOME ENTITLED TO THE PAYMENT OF INTEREST AND THE FAA THEN DIRECTED THE AO TO VERIFY THE FIGURE OF ADVANCE TAX PAID AND THE INCOME ASSES SED AND THEN TO ALLOW THE NECESSARY INTEREST TO THE ASSESSEE.THE AO BY ORDER DATED 12.0 1.1987,HOWEVER, CAME TO THE CONCLUSION THAT NO INTEREST UNDER SECTION 214 OF THE ACT WAS P AYABLE.ON APPEAL BEING FILED, THE FAA CAME TO THE CONCLUSION THAT INTEREST U/S.214 OF THE ACT WAS ALLOWABLE.ON APPEAL BY THE REVENUE,THE TRIBUNAL HELD THAT THOSE CONTENTIONS CO ULD NOT BE RAISED NOW BY THE REVENUE BECAUSE THE DECISION AS TO WHETHER INTEREST UNDER S ECTION 214 WAS PAYABLE OR NOT HAD BEEN TAKEN BY THE FAA BY HIS ORDER DATED 09.07.1986, AND THAT DECISION HAD BEEN ACCEPTED BY THE REVENUE. THE HONBLE COURT HELD FRAMED FOLLOWING QU ESTION: '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE INCOME-TAX APPELLATE TRIBUNAL WAS CORRECT IN LAW IN HOLDING THAT INTERES T UNDER SECTION 214 WAS ALLOWED BY THE COMMISSIONER OF INCOME-TAX (APPEALS), VIDE HIS ORDE R NO. 527 OF 1985-86, DATED JULY 9, 1986, AND HAVING NOT FILED APPEAL AGAINST THE SAID ORDER, THE DEPARTMENT IS NOT ENTITLED TO APPEAL AGAINST THE CLARIFICATORY ORDER NO. 215 OF 1 987-88 DATED NOVEMBER 6, 1987 ? DECIDING THE MATTER THE HONBLE COURT HELD AS UNDER : ....THE FIRST ORDER OF THE COMMISSIONER OF INCOME-T AX (APPEALS) DATED JULY 9, 1986, CLEARLY HELD THAT THE ASSESSEE WAS ENTITLED TO INTEREST UND ER SECTION 214 OF THE ACT. ALL THAT THE INCOME-TAX OFFICER WAS REQUIRED TO DO WAS TO COMPUT E THE AMOUNT WHICH WAS PAYABLE. THE CONCLUSION OF THE TRIBUNAL THAT THE QUESTION COULD NOT BE REAGITATED AS THE DEPARTMENT HAD ACCEPTED THE ORDER DATED JULY 9, 1986, WAS CORRECT. NO QUESTION OF LAW AROSE FROM ITS ORDER. 12. FROM THE ABOVE DISCUSSION,IT IS CLEAR THAT THE HON BLE COURTS ARE OF THE VIEW THAT A PARTY (AO/ASSESSEE),CONCEDING AN ISSUE IN ORIGINAL PROCE EDINGS,IS BARRED TO RE-AGITATE THE SAME ISSUE WHEN THE MATTER IS REHEARD BY THE SAME FORUM. IN OTHER WORDS,WHAT IS VOLUNTARILY ACCEPTED CANNOT GIVE RISE TO A GRIEVANCE WHICH CAN BE TAKEN FURTHER IN APPEAL.IF THIS PRACTICE IS NOT ADHERED THERE WOULD NOT BE ANY END TO LITIGA TION.PRINCIPLES OF TAXATION JURISPRUDENCE STIPULATE THAT EVEN A WRONG ORDER HAS A FINALITY AN D UNLESS THAT FINALITY IS DISTURBED BY A PROCESS OF LAW OR BY A PROCESS AUTHORISED BY LAW,TH E RIGHTS OF THE AFFECTED PARTIES WILL CONTINUE TO BE GOVERNED BY THE ORDER.REASONS FOR TH E SAID PRINCIPLE ARE NOT DIFFICULT TO COMPRE -HEND.LITIGATION CANNOT BE ALLOWED TO CONTINUE PERP ETUALLY-ESPECIALLY WHEN THE AO/ASSESSEE TAKES A CONSCIOUS DECISION FOR NOT AGITATING AN ISS UE RAISED BY IT.IN SHORT,THE LITIGANTS,IN THE APPEALS BEFORE THE TRIBUNAL/HONBLE HIGH COURT/APEX COURT,ARE NOT ALLOWED TO RE-AGITATE SAME ISSUE AFTER CONCEDING BEFORE THE LOWER AUTHORI TIES.APPROACHING A JUDICIAL FORUM IS A SERIOUS MATTER AND NO ONE CAN BE ALLOWED TO TAKE JU DICIAL/QUASI-JUDICIAL PROCEEDINGS IN A LIGHT MANNER.BY CONCEDING A POINT THE LITIGANT PREVENTS T HE APPELLATE AUTHORITY TO DECIDE THE ISSUE AT THAT POINT OF TIME AND ALSO PREVENTS THE RESPOND ENT TO NEGATE THE STAND TAKEN BY IT.PERSON NOT AVAILING AN OPPORTUNITY CANNOT COMPLAIN OF INJU STICE.EVEN IF IT HAS SOME GRIEVANCE TO ANY ORDER,IT HAS TO FOLLOW THE PROCEDURE LAID DOWN BY L AW.BY,NOT FILING AN APPEAL AGAINST THE ORDER OF THE TRIBUNAL,DATED 29.05.2005,THE ASSESSEE HAD A LLOWED IT TO BECOME FINAL.IN OUR OPINION, IN THE PROCEEDINGS U/S.254(2)OF THE ACT,SUCH A FINA LITY CANNOT BE DISTURBED. IN THE MATTER UNDER CONSIDERATION,THE ASSESSEE HAS NOT PRODUCED ANY LETTER WRITTEN BY IT TO THE- THEN-AR QUESTIONING HIM AS TO WHY DID HE NOT PRESS THE GROUND OF RE-OPENING.IT LEADS TO THE ONLY LOGICAL CONCLUSION THAT A CONSCIOUS DECISION W AS TAKEN BY THE ASSESSEE ITSELF ABOUT NOT MA-199-201/M/15-SHAKTI CABLE INDS. 10 AGITATING THE GROUND,RELATED WITH ISSUE OF NOTICE U /S.148 OF THE ACT,BEFORE THE TRIBUNAL AND THAT SH.SHONDE HAD ACTED AS PER THE INSTRUCTIONS OF THE ASSESSEE.IF A LITIGANT IS ALLOWED TO CHALLENGE THE DECIDED ISSUE EVERY TIME IT CHANGES I TS AR ON THE GROUND THAT CONCESSION MADE BY THE EARLIER AR WAS NOT BINDING,THERE WILL BE NO FINALITY AND DECIDED ISSUES WOULD HAVE TO BE RE-HEARD AFRESH.WE WOULD LIKE TO DISCUSS THE BIN DING NATURE OF CONCESSION IN SUCCEEDING PARAGRAPHS.BUT,HERE IT IS SUFFICIENT TO STATE THAT THE HONBLE COURTS ARE UNANIMOUS THAT ONCE AN ISSUE HAS BEEN CONCEDED BY A PARTY,SAME ISSUE CA NNOT BE RAISED IN THE REMAND PROCEEDINGS. 12.1. IN PARAGRAPH 8 OF OUR ORDER,WE HAVE REPRODUCED THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE FAA IN THE SECOND ROUND OF LITIGATION.A PERUSAL OF THE GROUNDS REVEAL THAT IT HAD NOT AGITATED THE ISSUE OF REOPENING/TRANSFER OF CAS E AS PER THE PROVISIONS OF SECTION 127 OF THE ACT,BEFORE THE FAA.THE CONDUCT OF THE ASSESSEE IS I NDICATIVE THAT NOT PRESSING THE GROUND BEFORE THE TRIBUNAL WAS A CONSCIOUS DECISION.IT WAS NOT BECAUSE OF THE MISREPRESENTATION OF LAW OR MISUNDERSTANDING OF FACTS BY THE-THEN-AR.WE FIND THAT IN THE GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL DURING SECOND ROUND OF LITIGATI ON,THE ASSESSEE HAD AGAIN RAISED THE ISSUE OF RE-OPENING OF THE ASSESSMENT.IT HAD BEEN MENTION ED,IN THE GROUNDS,THAT THE FAA HAD ERRED IN UPHOLDING THE VALIDITY OF REASSESSMENT.THE GROUN D IS BEYOND OUR COMPREHENSION.IN THE GROUNDS OF APPEAL IT HAD NOT CHALLENGED THE REOPENI NG.IN THOSE CIRCUMSTANCES HOW THE FAA WAS SUPPOSED TO DISPOSE THE ISSUE? IN OTHER WORDS,I F THE FAA DOES NOT ADJUDICATE AN ISSUE THAT IS NOT BEFORE HIM HOW HIS ORDER CAN BE HELD TO BE ERRONEOUS.IN OUR OPINION,TO COME OUT OF THE TRAP IN WHICH THE ASSESSEE HAD PUT ITSELF,IT HA S NOT ONLY RAISED A FINALITY-ATTAINED-ISSUE AGAIN BEFORE THE TRIBUNAL,BUT ALSO MADE A PETITION TO RAISE ADDITIONAL GROUNDS.IF WE CONSIDER THE SEQUENCE OF THE EVENTS IT BECOMES CLEAR THAT TH E ISSUE OF RE-OPENING OF ASSESSMENT U/S.147 HAD BECOME FINAL,WHEN THE ASSESSEE DECIDED NOT TO P RESS THE GROUND NO.1 AND 2 AND THE TRIBUNAL HAD DECIDED THE APPEAL ON 29/09/2005. 12.2. WE WOULD ALSO LIKE TO DISCUSS ONE MORE IMPORTANT AS PECT WITH REGARD TO THE RE-OPEING. BEFORE THE FAA,IN THE SECOND ROUND OF LITIGATION TH E ASSESSEE WAS REPRESENTED BY QUALIFIED PERSON-A CHARTERED ACCOUNTANT.NOT ONLY THIS,ONE OF THE PARTNERS WAS ALSO PRESENT DURING THE HEARING BEFORE THE FAA.THE ASSESSEE HAS,IN THE MA F ILED BY IT,ARGUED THAT CONCESSION GIVEN BY SH.SHONDE WAS NOT BINDING ON IT.BUT,IT HAS NOT S AID ANYTHING ABOUT THE BEHAVIOUR THE CA AND THE PARTNER WHO HAD APPEARED BEFORE THE FAA IN THE SECOND ROUND OF LITIGATION AND NOT AGITATED THE ISSUE OF RE-OPENING.IT IS NOT CLEAR AS WHAT PREVENTED THEM TO CHALLENGE THE RE- OPENING,ESPECIALLY WHEN THE ASSESSEE HAD AGITATED T HE ISSUE IN FIRST ROUND OF LITIGATION UP TO THE TRIBUNAL.WE DO NOT KNOW AS TO WHETHER BOTH OF T HEM DID NOT RAISE THE ISSUE BECAUSE OF MISINTERPRETATION OF LAW OF IGNORANCE OF FACTS OR FOR ANY OTHER REASONS.THE SIMPLE LOGIC BEHIND IT,ACCORDING TO OUR UNDERSTANDING OF THE FAC TS,IS THAT THE CA AND THE PARTNER WERE VERY WELL AWARE THAT SH.SHONDE HAD NOT PRESSED THE GROUN D BEFORE THE TRIBUNAL NOT ON HIS OWN,BUT ON INSTRUCTION OF THE ASSESSEE ITSELF.IN THESE CIRC UMSTANCES,WE ARE OF THE OPINION THAT THERE WAS NO MISTAKE ON PART OF THE TRIBUNAL IN HOLDING T HAT ISSUE OF RE-OPENING HAD BECOME FINAL AND THAT THERE IS NO MISTAKE IN ITS ORDER THAT COUL D BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254 OF THE ACT. 13. NOW,WE WOULD LIKE TO CONSIDER THE SCOPE AND LIMITAT ION OF THE PROVISIONS RELATING TO RECTIFICATION OF MISTAKES AS WELL AS THE PRINCIPLES GOVERNING THE SECTION 254(2) OF THE ACT.IN OUR OPINION,THE SCOPE OF SAID SECTION IS VERY LIMIT ED AND SPECIFIC.IT IS SAID THAT IF A MISTAKE IS SO GLARING THAT ON THE FACE OF IT SAME CANNOT BE AL LOWED TO CONTINUE,THEN ONLY THE PROVISIONS OF SECTION 254(2)CAN BE INVOKED.THE FOUNDATION FOR EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS TO BE ACHIEVED BY AMENDING ANY ORDER PASSED BY IT.IN OTHER WORDS THE TRIBUNAL CAN AMEND ITS ORDER,BUT IT CANNOT REVIEW ITS OWN ORDER WHILE DEALING WITH THE MA.S.THE SECTI ON IS LIMITED TO MISTAKE APPARENT FROM MA-199-201/M/15-SHAKTI CABLE INDS. 11 RECORD LIKE ARITHMETICAL ERRORS,TYPOGRAPHICAL MISTA KES,NON-ADJUDICATION OF GROUND OF APPEAL OR NON-CONSIDERATION OF A JUDGMENT OF HONBLE SUPRE ME COURT OR JURISDICTIONAL HIGH COURT HAVING DIRECT BEARING ON THE CASE. HONBLE DELHI HIGH COURT HAS,IN THE MATTER OF GEOFI N INVESTMENT (P.)LTD.(348 ITR 118), WHILE DISMISSING THE WRIT PETITION FILED BY THE ASS ESSEE,DESCRIBED THE CONCEPT OF MISTAKE APPARENT FROM RECORD AS UNDER: THE POWER IS CIRCUMSCRIBED AND LIMITED.THERE SHOULD BE A MISTAKE WHICH IS APPARENT BEFORE THE POWER CAN BE EXERCISED.THIS IS A MANDATORY PRE- CONDITION. THE TRIBUNAL IN ITS ORDER REFERRED TO THE CONTROVERSY IN QUESTION RELATING TO THE DISALLOWANCE..THE ENTIRE ISSUE WAS EXAMINED ON THE MERITS INCLUDING THE JUDGMENTS RELI ED UPON BY THE ASSESSEE. AFTER EXAMINING THE MATTER IN DETAIL, IT ALLOWED THE APPEAL FILED B Y THE REVENUE.RELIANCE AND REFERENCE TO REASONS STATED IN THE DECISION COULD NOT BE REGARDE D AS A MISTAKE APPARENT FROM THE RECORD. IN THAT CASE,THE TRIBUNAL,IN ITS ORDER,HAD REFERRED TO THE CONTROVERSY IN QUESTION RELATING TO DISALLOWANCE MADE ON ACCOUNT OF SHORT-TERM CAPITAL LOSS AND LONG-TERM CAPITAL LOSS AND AFTER EXAMINING THE MATTER IN DETAIL AND HAD ALLOWED THE APPEAL FILED BY THE REVENUE.THE ASSESSEE FILED AN APPLICATION UNDER SECTION 254(2)OF THE ACT AND SAME WAS DISMISSED BY THE TRIBUNAL. THE HONBLE KARNATAKA HIGH COURT HAD ALSO AN OCCASI ON TO DEAL WITH THE SAME SUBJECT IN THE MATTER OF MCDOWELL AND COMPANY LTD.(310ITR 215).IN THAT CASE TRIBUNAL HAD DECIDED THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE RIVAL SUBMISSIONS.LATER ON,AN APPLICATION WAS MOVED BY IT,U/S.254 OF THE ACT FOR RECTIFYING THE M ISTAKE.THE TRIBUNAL ALLOWED THE MA FILED BY THE ASSESSEE AND GRANTED IT RELIEF.REVERSING THE ORDER OF THE TRIBUNAL,THE HONBLE COURT LAID DOWN FOLLOWING PRINCIPLES: APPLICATION OF THE PRINCIPLES LAID DOWN BY THE SUP ERIOR COURTS TO THE FACTS OF THE CASE BEFORE THE TRIBUNAL ON ERRONEOUS UNDERSTANDING OF SUCH PRI NCIPLES,RECORDING OF AN ERRONEOUS FINDING BY IT BASED ON THE FACTS ON RECORD,ARRIVING AT A CONCLUSION ON ERRONEOUS APPLICATION OF PROVISIONS OF LAW TO THE FACTS OF THE CASE, ETC.,CA NNOT BE HELD TO BE A MISTAKE APPARENT FROM THE RECORD WARRANTING ANY RECTIFICATION BY THE TRI BUNAL IN EXERCISE OF ITS POWER UNDER SECTION 254(2) OF THE INCOME-TAX ACT,..SUCH AN E XERCISE OF POWER UNDER SECTION 254(2) OF THE ACT AMOUNTS TO REVIEW OF ITS EARLIER ORDER O N THE MERITS BUT NOTRECTIFICATION OF MISTAKE APPARENT FROM THE RECORD AND SUCH REVIEW WOULD CER TAINLY BE BEYOND THE SCOPE OF SECTION 254(2) OF THE INCOME-TAX ACT. IN THE CASE OF BHAGWATI DEVELOPERS (P.) LTD.(261 IT R 658),HONBLE CALCUTTA HIGH COURT HAS HELD AS UNDER : UNDER SECTION 254(2), THE APPELLATE TRIBUNAL IS CL OTHED WITH THE POWER TO AMEND WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EIT HER ON ITS OWN MOTION OR ON AN APPLICATION BY THE ASSESSEE OR THE ASSESSING OFFICER CONCERNED. THE LAW BY NOW IS WELL-SETTLED. SECTION 254(2)DOES NOT CONFER A POWER ON THE TRIBUNAL TO RE VIEW ITS EARLIER ORDER. A MISTAKE APPARENT FROM THE RECORD MUST BE AN OBVIOUS AND PATENT MISTA KE AND NOT SOMETHING WHICH COULD BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. WE WOULD ALSO LIKE TO REFER TO THE DECISION OF HON BLE DELHI HIGH COURT DELIVERED IN THE MATTER OF SMT.BALJEET JOLLY(250 ITR113).IN THAT MAT TER,IN THE APPLICATION FILED U/S.254 (2) OF THE ACT,THE ASSESSEE CONTENDED THAT THE TRIBUNALS CONCLUSION WAS NOT IN ACCORDANCE WITH THE FACTS ON RECORD.THE TRIBUNAL,AFTER CONSIDERING OF H ER STAND CAME TO THE CONCLUSION THAT A CASE FOR RECTIFICATION UNDER SECTION 254(2) WAS NOT MADE OUT.DECIDING THE MATTER,THE HONBLE COURT HELD THAT WHERE AN ERROR WAS FAR FROM SELF EV IDENT,IT CEASED TO BE AN APPARENT ERROR,THAT THE SO CALLED INACCURACIES OR WRONG RECORDING OF FA CTS AS ALLEGED WERE NOT PATENT MISTAKES WHICH CONSTITUTED THE SINE QUA NON FOR EXERCISE OF POWER U/S.254 (2) OF THE ACT.WE WOULD LIKE TO REPRODUCE THE RELEVANT PORTION OF THE JUDGMENT: IN ORDER TO THE POWER TO RECTIFY UNDER SECTION 254 (2) OF THE INCOME-TAX ACT, 1961, IT IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDE R SOUGHT TO BE RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM THE RECORD. A D ECISION ON A DEBATABLE POINT OF LAW OR MA-199-201/M/15-SHAKTI CABLE INDS. 12 DISPUTED QUESTION OF FACT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE SO EX FACIE AND IS INCAPABLE OF ARGUMENT OR DEBATE. SOME OF THE CASES OF THE HONBLE JURISDICTIONAL HIG H COURT DEALING WITH THE ISSUE ALSO THROW LIGHT ON THE SCOPE OF SECTION 254(2) OF THE ACT.FIR ST OF THEM IS RAMESH ELECTRICALS (203 ITR 497).FACTS OF THE CASE WERE THAT THE ASSESSEE CARRI EED ON A BUSINESS IN ELECTRICAL GOODS AND APPLIANCES,THAT THE ASSESSEE DEBITED A SUM OF RS. 5 4,000 AS COMMISSION PAID TO ONE MESSRS. NEETA ELECTRIC CORPORATION, BOMBAY,THAT THE AO FOUN D THAT ALL THE FIVE PARTNERS OF THE FIRM OF NEETA ELECTRIC HAD CLOSE LINKS WITH THE ASSESSEE,TH AT THE ASSESSEE CLAIMED THAT COMMISSION PAID BY IT WAS ALLOWABLE UNDER SECTION 37 OF THE AC T,THAT THE AO DISALLOWED THE DEDUCTION AFTER EXAMINING EVIDENCE AND HOLDING THAT THE COMMI SSION WAS NOT PAID FOR BUSINESS PURPOSES,THAT THE FAA UPHELD THE ORDER OF THE AO,TH AT IN THE APPELLATE PROCEEDINGS,THE TRIBUNAL DISMISSED THE APPEAL FILED BY THE ASSESSEE ,THAT THE ASSESSEE MOVED A MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF THE ORDER OF T HE TRIBUNAL.IN ITS APPLICATION THE ASSESSEE STATED THAT ALTHOUGH THE APPEAL MEMO BEFORE THE TRI BUNAL CONTAINED FIVE DIFFERENT GROUNDS OF APPEAL, THE ORDER OF THE TRIBUNAL DID NOT MENTION T HREE OF THESE GROUNDS OF APPEAL, THAT THE TRIBUNAL DID NOT CONSIDER SOME OF THE ARGUMENTS ADV ANCED BY THE ASSESSEE.THE TRIBUNAL ENTERTAINED THE APPLICATION,REHEARD THE MATTER,REAS SESSED ALL THE CIRCUMSTANCES AND ALLOWED THE MA.DECIDING THE MATTER THE HONBLE COURT HELD A S UNDER: UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD' , AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO R ECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMEN TS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FO R ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF ITS POWER OF RECTIFICATION,LOOK INTO SO ME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. IN THE CASE OF EARNEST EXPORTS LTD.(323ITR577),THE HONBLE COURT HAS HELD THAT THE POWER U/S.254(2) OF THE ACT,IS CONFINED TO RECTIFICATION OF A MISTAKE APPARENT ON RECORD,THAT THE TRIBUNAL MUST CONFINE ITSELF WITHIN THOSE PARAMETER S,THAT SECTION 254(2) IS NOT A CARTE BLANCHE FOR THE TRIBUNAL TO CHANGE ITS OWN VIEW BY SUBSTITU TING A VIEW WHICH IT BELIEVES SHOULD HAVE BEEN TAKEN IN THE FIRST INSTANCE,THAT SECTION 254( 2) IS NOT A MANDATE TO UNSETTLE DECISIONS TAKEN AFTER DUE REFLECTION,THAT THE SUPREME COURT H AS HELD IN HONDA SIEL POWER PRODUCTS (295 ITR466)THAT THE UNDER-LYING PURPOSE OF SECTION 254( 2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT A PARTY APPEARING BEFORE THE TRIBUNAL SHOULD N OT SUFFER ON ACCOUNT OF A MISTAKE COMMITTED BY THE TRIBUNAL,THAT WHEN PREJUDICE RESUL TS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE,ERROR OR OMISSION,IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT AND IT HAS NOTHING TO DO WITH THE CONCEPT OF THE INHERENT POWE R TO REVIEW,THAT THE SUPREME COURT HELD THAT THE TRIBUNAL WOULD BE REGARDED AS HAVING COMMI TTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH IS ALREADY ON RECORD.IN THE CASE OF SUPREME INDUSTRIES LTD.(359ITR758)THE HIGH COURT FOUND THAT MISTAKE HAS OCCURRED IN THE O RDER OF THE TRIBUNAL DATED 14.05.2010,IN MENTIONING INCOME TAX APPEALS NOS.904,867AND 868/MU M/2005(BEING APPEAL NUMBERS ALLOTTED TO THE REVENUE'S APPEALS)INSTEAD OF INCOME TAX APPEALS NOS.906,907AND 908/ MUM/ 2005.THE TRIBUNAL REJECTED THE APPLICATION FOR RECT IFICATION ON THE GROUND THAT SUCH AN MA-199-201/M/15-SHAKTI CABLE INDS. 13 APPLICATION WAS NOT MAINTAINABLE.ON WRIT PETITIONS THE HONBLE COURT SET ASIDE THE ORDER OF THE TRIBUNAL AND DIRECTED IT TO PASS APPROPRIATE O RDER CORRECTING THE MISTAKES. LASTLY,WE WOULD LIKE TO REFER TO THE CASE OF POTHIN A VENKATESHWARA SWAMY(369 ITR 639)OF THE HONBLE T&AP HIGH COURT HAS DEALT WITH THE SIMI LAR ISSUE.IN THAT MATTER IT WAS FOUND THAT THE ASSESSEES JOINTLY CONSTRUCTED A GODOWN BETWEEN 1991 AND 1992,THAT FOR THE AY.1992-93, THEY SHOWED THE COST OF CONSTRUCTION AT RS. 25,50,8 53/-EACH,THAT THE REPORT OF THE VALUER WAS ENCLOSED WITH THE RETURNS,THAT THE AO ACCEPTED THE FIGURES AND COMPLETED THE ASSESSMENTS,THAT THEREAFTER,THE ASSESSMENTS WERE REOPENED ON THE GRO UND THAT THE SUPERINTENDING ENGINEER, VALUATION CELL,FOUND THAT THE COST OF THE CONSTRUCT ION WAS AROUND RS.84.76 LAKHS,THAT THE AO MADE AN ADDITION OF RS.7,02,760/-EACH TO THE INCOME OF THE ASSESSES,THAT THE FAA REDUCED THE FIGURES TO RS.3,32,420/-,THAT IN THE MEANWHILE, ORDERS OF RECTIFICATION UNDER SECTION 154 WERE PASSED BY THE AO ADDING A SUM OF RS.78,085/- E ACH DISALLOWING THE DEPRECIATION OF 10 %,THAT THE TRIBUNAL REDUCED THE COST BY 10 % TOWARD S SUPERVISORY CHARGES,THAT THE ASSESSEES PREFERRED PETITIONS UNDER SECTION 254(2) WHICH WERE REJECTED BY THE TRIBUNAL. IN THE APPEALS FILED BY THE ASSESSEE BEFORE THE HON BLE COURT,IT WAS ARGUED ON BEHALF OF THE ASSESSEE THAT THERE WAS A CLEAR ERROR APPARENT ON THE FACE OF THE RECORD AND THE TRIBUNAL OUGHT TO HAVE EXERCISED ITS JURISDICTION UNDER SECTION 25 4(2) OF THE ACT,THAT THE VERY REOPENING OF THE ASSESSMENTS WERE WITHOUT ANY BASIS SINCE THE RE SPONDENT FAILED EVEN TO MENTION AS TO WHAT CONSTITUTED 'THE REASON TO BELIEVE' UNDER SECT ION 147 OF THE ACT, THAT THE RATIO LAID DOWN BY VARIOUS COURTS IN THIS BEHALF WAS NOT TAKEN NOTE OF BY THE TRIBUNAL AND EVEN AFTER ITS ATTENTION IS INVITED TO THE SAME THE TRIBUNAL DID N OT RECTIFY ITS ORDERS.ON BEHALF OF THE DEPARTMENT,IT WAS CONTENDED THAT ONCE THE TRIBUNAL HAD PASSED ORDERS IN THE APPEALS PREFERRED BY THE APPELLANTS,THERE WAS NO BASIS FOR FILING THE MISCELLANEOUS PETITIONS,THAT THE JURISDICTION UNDER SECTION 254(2) CAN BE EXERCISED IF ONLY THE E RROR WAS SO APPARENT AND PATENT THAT IT COULD BE DISCERNED WITHOUT ANY EFFORT AND CAN BE ES TABLISHED WITHOUT TAKING THE HELP OF ANY EXTERNAL MATERIAL AND SUCH AN ERROR DID NOT EXIST I N THE INSTANCE CASE AT ALL,THAT EVEN IF THERE WAS A POSSIBILITY OF DIFFERENT VIEWS BEING TAKEN ON THE SAME FACTS, IT WOULD NOT CONSTITUTE THE BASIS FOR PASSING AN ORDER OF RECTIFICATION AND THE REBY EXERCISING THE POWER OF APPEAL BY THE TRIBUNAL ON ITS OWN ORDERS.THE HONBLE COURT DISCUS SED THE ISSUE AS UNDER: 6.THE FACTUAL BACKGROUND, IN BRIEF, FOR FILING OF MISCELLANEOUS PETITIONS BY THE APPELLANTS HEREIN HAS BEEN MENTIONED IN THE PRECEDING PARAGRAP HS.THE ORDERS OF ASSESSMENT, IN SO FAR AS THEY RELATE TO THE COST OF CONSTRUCTION OF A GODOWN HAVE BEEN REOPENED IN EXERCISE OF POWER UNDER SECTION 148 OF THE ACT.THE APPELLANTS SUFFERE D ORDERS OF REASSESSMENT IN THE HANDS OF THE ASSESSING AUTHORITY AND, ACCORDINGLY, CARRIED T HE MATTER TO THE APPELLATE COMMISSIONER. IT IS NO DOUBT TRUE THAT THE GROUND OF THE ABSENCE OF FACTUAL BASIS FOR REOPENING THE ASSESSMENT WAS URGED. ALL THE SAME, THAT GROUND DID NOT WEIGH WITH THE APPELLATE COMMISSIONER. THE REASON APPEARS TO BE THAT THE REOPENING WAS ON THE BASIS OF THE VALUATION OF THE GODOWN BY THE SUPERINTENDING ENGINEER. ACCORDINGLY, NOTICES W ERE ISSUED TO THE APPELLANTS DULY POINTING OUT THE SAME. 7. SECTION 148 OF THE ACT HAS BEEN INTERPRETED BY T HE COURTS IN SUCH A WAY AS TO KEEP THE POWER OF THE ASSESSING AUTHORITY INTACT, AS LONG AS THERE EXISTED SOME BASIS. IF THE BASIS AS SUCH EXISTS, THE EXERCISE THEREOF BECOMES NON-JUSTI CIABLE. IT IS ONLY WHEN THERE IS A TOTAL ABSENCE OF ANY REASON OR BASIS WHATEVER, THAT AN AT TEMPT TO INVOKE POWER UNDER SECTION 148 CAN BE FOUND FAULT. ADEQUACY OF THE MATERIAL THAT W AS AVAILABLE WITH THE ASSESSING OFFICER CANNOT BE SUBJECT MATTER OF THE ADJUDICATION. 8. THE APPELLANTS WERE GRANTED PARTIAL RELIEF BY TH E COMMISSIONER (APPEALS) BY VIRTUALLY SLASHING THE ADDED AMOUNT, TO HALF. IN THE FURTHER APPEALS BEFORE THE TRIBUNAL, RELIEF IN THE FORM OF REDUCTION OF COST BY 10 PER CENT. TOWARDS P ERSONAL MAINTENANCE CHARGES WAS GRANTED. IN CASE, THE APPELLANTS WERE NOT SATISFIED WITH THE NATURE OF DISPOSAL GIVEN BY THE TRIBUNAL, IT WAS OPEN TO THEM TO AVAIL OF THE FURTHER REMEDIES. XXXXX MA-199-201/M/15-SHAKTI CABLE INDS. 14 11. THE EXPRESSION 'ERROR APPARENT ON THE FACE OF T HE RECORD' OCCURS EVEN IN ADMINISTRATIVE ADJUDICATIONS. AN ERROR CAN BE TREATED AS THE ONE A PPARENT ON THE FACE OF THE RECORD, IF ONLY IT CAN BE DISCERNED JUST ON PERUSAL OF THE CONNECTED R ECORD, WITHOUT THE AID OF ANY EXTERNAL MATERIAL. TO PUT ITCONVERSELY, IF THE ERROR CAN BE DEMONSTRATED ONLY BY TAKING RECOURSE TO THE OTHER MATERIAL OR ARGUMENTS, IT CEASES TO BE THE ON E, APPARENT FROM RECORD. REFERRING TO THE CASES OF SAURASHTRA KUTCH STOCK EX CHANGE LTD.(305ITR227),EARNEST EXPORTS LTD.(SUPRA)AND HONDA SIEL POWER PRODUCTS LTD.(SUPRA ),THE HONBLE COURT FURTHER HELD AS FOLLOW: THE POWER CAN BE EXERCISED ONLY TO RECTIFY A MISTA KE WHICH HAS OCCURRED IN THE RECORD AND NOT FOR OTHER PURPOSES. THE EXPRESSION ERROR APPAR ENT ON THE FACE OF THE RECORD OCCURS EVEN IN ADMINISTRATIVE ADJUDICATIONS. AN ERROR CAN BE TREATED AS THE ONE APPARENT ON THE FACE OF THE RECORD, IF ONLY IT CAN BE DISCERNED JUST ON PERUSAL OF THE CONNECTED RECORD, WITHOUT THE AID OF ANY EXTERNAL MATERIAL. TO PUT IT CONVERSELY, IF THE ERROR CAN BE DEMONSTRATED ONLY BY RECOURSE TO OTHER MATERIAL OR ARGUMENTS, IT CEASES TO BE APPARENT FROM THE RECORD......THE ASSESSEES WERE NOT ABLE TO POINT OUT WHAT EXACTLY W AS THE ERROR IN THE ORDERS PASSED BY THE TRIBUNAL IN THE APPEALS, WHICH WAS APPARENT FROM TH E RECORD. THE THRUST OF THE ASSESSEES ARGUMENT WAS THAT THE TRIBUNAL DID NOT ADDRESS THE QUESTION PERTAINING TO THE VERY BASIS FOR REOPENING THE ASSESSMENT. THE COURT OR A TRIBUNAL I S DEEMED TO HAVE TAKEN EVERY ASPECT THAT IS PLACED BEFORE IT INTO ACCOUNT AND GRANTED THE RELIE F WHICH IT FELT APPROPRIATE IN A MANNER WHICH IT FELT APPROPRIATE. IT IS NOT NECESSARY THAT EVERY ASPECT MUST BE ADDRESSED IN GREATER DETAIL. THIS IS PARTICULARLY SO WITH THE APPELLATE FORA. IF ON ANY ASPECT, THE APPELLATE FORUM IS SILENT, IT CAN BE DEEMED TO HAVE CONCURRED WITH THE VIEW EXPRESSED BY THE FORUM FROM WHICH THE ORDER UNDER APPEAL HAS ARISEN. THEREFORE, THE P ETITIONS FILED UNDER SECTION 254(2) WERE RIGHTLY REJECTED BY THE TRIBUNAL. 14. FROM THE ABOVE DISCUSSION,WE CAN SAFELY STATE THAT THE WORDS MISTAKE APPARENT FROM RECORD ,AS APPEARING IN THE SECTION 254(2)HAVE A SPECIAL MEANING AND DEFINITE CONNOTATION.A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH IT,CAN BE SAID T O BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND ONLY SUCH A MISTAKE CAN BE CORRECTED WHI LE APPLYING PROVISIONS OF SECTION 254(2) OF THE ACT.IT IS ALSO A SETTLED LEGAL PROPOSITION T HAT THE SCOPE OF THE SAID SECTION IS VERY LIMITED AND CIRCUMSCRIBED.FOR EXERCISING JURISDICTION UNDER THE SECTION,IF THE APPLICANT HAS TO ADVANCE LONG ARGUMENTS,IT WILL NOT FALL UNDER THE C ATEGORY OF APPARENT MISTAKE.BESIDES, PROVISIONS OF SECTION 254(2)DO NOT CONFER POWER ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER OR RE-APPRECIATE OR RE-EVALUATE EVIDENCE.THE HONBLE C ALCUTTA HIGH COURT IN THE MATTER OF SHEW PAPER EXCHANGE(93 ITR 186) HAS HELD THAT THE NORMAL RULE IS THAT THE REMEDY OF REVIEW IS A CREATURE OF A STATUTE AND IF THE STATUTE DOES NOT C ONTAIN POWERS FOR REVIEW, THEN THE POWER CANNOT BE EXERCISED.REVIEW PROCEEDINGS OF THIS KIND ARE THOSE WHERE A PARTY AS OF RIGHT CAN APPLY FOR RECONSIDERATION OF THE MATTER ALREADY DEC IDED UPON AFTER A FRESH HEARING ON THE MERITS OF THE CONTROVERSY BETWEEN THE PARTIES.SUCH A REMEDY MUST BE PROVIDED BY THE STATUTE. THE INHERENT POWER TO RECTIFY A WRONG COMMITTED BY ITSELF, BY A COURT OR A TRIBUNAL, IS NOT, REALLY SPEAKING,A POWER TO REVIEW.THE TWO POWERS OP ERATE IN DIFFERENT FIELDS AND ARE DIFFERENT IN ESSENTIAL QUALITY OR NATURE.IN SHORT,THE SCOPE O F SECTION 254(2) OF THE ACT IS VERY LIMITED AND SPECIFIC.IN OUR HUMBLE OPINION,THERE ARE NO MIS TAKES IN THE ORDER DTD.15.06.2012 OF THE TRIBUNAL THAT COULD BE RECTIFIED U/S.254(2)OF THE A CT.WE WILL DISCUSS ABOUT THE SAID ASPECT MORE IN THE LAST PART OF PARAGRAPH 16 OF OUR ORDER. 15. WE WOULD ALSO LIKE TO DEAL WITH THE ARGUMENTS RAISE D BY THE ASSESSEE IN THE MA.FIRST OF THEM IS ABOUT NON BINDING NATURE OF THE CONCESSION MADE BY THE THEN AR AND NON CONSIDERATION OF TWO OF THE CASES.WE HAVE PERUSED T HE LOG BOOKS OF BOTH THE MEMBERS DATED AND FIND THAT BOTH THE CASES WERE NOT RELIED UPON B Y THE AR,THE ONLY CASE RELIED BY HER WAS OF SHAMMI BHAN(AIR 1998 SC1681).AS THE ASSESSEE HAS RE LIED UPON THE CASES BEFORE US,SO WE WILL LIKE TO DELIBERATE UPON THEM.IN THE MA THE ASS ESSEE HAS MENTIONED AS UNDER: MA-199-201/M/15-SHAKTI CABLE INDS. 15 HOWEVER,TWO EXTREMELY IMPORTANT AND GERMANE JUDGME NTS .......LAYING DOWN THAT THE CONCESSION BY A COUNSEL IN MISINTERPRETATION OF LAW OF IGNORANCE OF FACTS WAS NOT CONSIDERED. WE ARE OF THE OPINION,THAT THE NOT PRESSING OF GROU NDS BY THE THEN AR WOULD NOT FALL IN ANY OF THE TWO CATEGORIES I.E. MISINTERPRETATION OF LAW OR IGNORANCE OF FACTS.THE FACTS WITH REGARD TO REOPENING OF CASE WERE CLEAR FROM THE DAY ONE WHEN THE ASSESSMENT ORDER WAS PASSED U/S.143 (3)R.W.S147OF THE ACT WAS PASSED BY THE AO.THE THEN AR DID NOT RAISE THE RE-OPENING OF THE ASSESSMENT WHILE ARGUING THE STAY PETITION.ONE OF T HE BASIC REQUIREMENT OF THE STAY APPLICA - TION IS TO PROVE THE BALANCE OF CONVENIENCE IS FAVO UR OF THE ASSESSEE.LACK OF JURISDICTION IS VERY STRONG BASE TO PROVE THAT SCALE OF CONVENIENCE IS TILTED IN FAVOUR OF THE ASSESSEE.IN THE PROCEEDINGS BEFORE THE TRIBUNAL THE ASSESSEE FILED ADDITIONAL EVIDENCE AND REQUESTED THAT SAME SHOULD BE TAKEN ON RECORD.AT THAT POINT OF TIM E ALSO,THE ASSESSEE CHOSE NOT TO ARGUE THE VALIDITY OF REASSESSMENT.RATHER IT DID NOT PRESS TH E GROUND.AS STATED EARLIER,IT WAS A CONSCIOUS DECISION OF THE ASSESSEE NOT OF THE THEN AR.A SENIO R AR,LIKE SH.ARVIND SHONDE,WOULD NOT MAKE ANY CONCESSION WITHOUT UNDERSTANDING THE IMPLI CATION OF SUCH CONCESSION.WE HAVE NOT COME ACROSS ANY LETTER OR AFFIDAVIT OF SH.SHONDE ST ATING THAT HE WAS IGNORANT OF FACTS OR THAT THERE WAS MISREPRESENTATION OF LAW ON HIS PART DURI NG THE HEARING OF STAY-PETITION OR THE REGULAR HEARING.NO LETTER WRITTEN BY THE ASSESSEE A ND ADDRESSED TO SH. SHONDE HAS BEEN PRODUCED BEFORE US WHERE IN THE ASSESSEE HAS QUEST IONED HIS DECISION OF NOT ARGUING THE GROUNDS THAT WERE RAISED BUT NOT ARGUED.THE ASSESSE E,WHO HAD EARLIER INSTRUCTED THE-THEN- AR,NOT TO PRESS GROUND OF REOPENING IS,AFTER 10 YEA RS,STATING THAT NOT PRESSING THE GROUNDS ABOUT RE-OPENING WAS A CONCESSION BY A COUNSEL IN M ISINTERPRETATION OF LAW OF IGNORANCE OF FACTS.THE ASSESSEE HAS ALSO NOT FILED ANY AFFIDAVIT STATING THAT THOUGH IT HAD INSTRUCTED SH. SHONDE TO ARGUE THE GROUNDS WITH REGARD TO RE-OPENI NG,YET HE DID NOT AGITATE THE SAME BEFORE THE TRIBUNAL.IN SHORT,IN OUR OPINION,THE ARGUMENTS ADVANCED BY THE ASSESSEE ARE NOT TENABLE AND ARE DEVOID OF MERITS.AFTER CHANGING THE AR,THE ASSESSEE IS ACCUSING A PERSON TO WHOM HE HAS AUTHORISED TO REPRESENT THE CASE.WITH CHANGE OF AR AT EVERY STAGE OF PROCEEDINGS,IF THE AO/ASSESSEE IS ALLOWED TO ARGUE THAT THE STAND TAKE N BY THE EARLIER COUNSEL WAS RESULT OF MISREPRESENTATION OF LAW OR IGNORANCE OF FACTS,THER E WILL NEVER BE FINALITY OF LITIGATION. THE ASSESSEE HAS ARGUED THAT THAT THERE WAS MISREPR ESENTATION OF LAW OR IGNORANCE OF FACTS,BUT HAS NOT ELABORATED AS HOW THERE WAS MISREPRESENTATI ON OF LAW OR IGNORANCE OF FACTS.THE AR APPEARING BEFORE US,ALSO RELIED UPON TWO CASES AND STATED THAT CONCESSION OF EARLIER COUNSEL WAS NOT BINDING.BUT,HOW THOSE CASES WERE APPLICABLE TO THE FACTS OF THE CASE WAS NOT EXPLAINED.HERE,WE WOULD LIKE TO REFER TO THE CASE O F K.S.SURESH(319 ITR 1),THAT DEALS ELABORATELY WITH THE CONCESSION MADE BY THE COUNSEL S.IN PARAGRAPH 20 OF THE JUDGMENT THE HONBLE MADRAS HIGH COURT,HAS OBSERVED AS UNDER: 20. THE PRINCIPLES THAT EMERGE FROM THE ABOVE DECI SIONS ARE : (A) ANY CONCESSION MADE BY A COUNSEL AGAINST THE ST ATUTORY PROVISIONS WOULD BE UNAUTHORISED AND ANY ORDER BASED ON SUCH ERRONEOUS CONCESSION SHOULD BE RECALLED. (TRIPURA GOODS TRANSPORT ASSOCIATION V. COMMISSIONER OF TAXES, AIR 1998 SC 4 65 ; (B) A WRONG CONCESSION ON A QUESTION OF LAW MADE BY A COUNSEL IS NOT BINDING ON HIS CLIENT. SUCH CONCESSION CANNOT CONSTITUTE A JUST GROUND FOR A BI NDING PRECEDENT.(UPTRON INDIA LTD. V. SHAMMI BHAN, AIR 1998 SC 1681. (C) IF THE LEARNED COUNSEL HAS MADE AN ADMISSION OR CONCESSION INADVERTENTLY OR UNDER A MISTAKEN IMPRESSION OF LAW, IT IS NOT BINDING ON HIS CLIENT AND THE SAME CANNOT ENURE TO THE BENEFIT OF ANY PARTY ; (D)COURTS ARE NOT TO ACT ON THE BASIS OF CONCESSION S BUT WITH REFERENCE TO THE APPLICABLE PROVISIONS; (E) ANY CONCESSION WOULD HAVE NO ACCEPTABILITY OR R ELEVANCE WHILE DETERMINING THE RIGHTS AND LIABILITIES INCURRED OR ACQUIRED IN VIEW OF THE AXI OMATIC PRINCIPLE WITHOUT EXCEPTION, THAT THERE CAN BE NO ESTOPPEL AGAINST STATUTE ; (F) ANY WRONG CONCESSION MADE BY A COUNSEL BEFORE T HE COURT CANNOT BIND THE PARTIES WHEN STATUTORY PROVISIONS CLEARLY PROVIDE OTHERWISE ; MA-199-201/M/15-SHAKTI CABLE INDS. 16 (G) A PARTY MAY BE ALLOWED TO RESILE AND AN APPELLA TE COURT MAY PERMIT IN RARE AND APPROPRIATE CASES TO RESILE FROM A CONCESSION MADE ON A WRONG A PPRECIATION OF THE LAW AND HAD LED TO GROSS INJUSTICE THOUGH ONE MAY NOT CALL IN QUESTION THE V ERY FACT OF MAKING THE CONCESSION AS RECORDED IN THE JUDGMENT. WHILE DECIDING THE MATTER THE HONBLE COURT HAD TAK EN NOTE OF THE CASES OF RAMDAS SHRINIVAS NAYAK(AIR1982SC1249),ROOP KUMAR V.MOHAN T HEDANI(AIR2003SC2418),RAM BALI(10SCC598),S.C.PARASHAR(AIR2006SC3566),SHAMMI B HAN (SUPRA),MOHANLALLIKUMAL PUNJABI(3SCC628),AYURVEDA AND SIDDHA V.DR.K.SANTHAK UMARI(SUPRA),TRIPURA GOODS TRANSP -ORT ASSOCIATION(AIR1998SC465),DELIVERED BY THE HON NBLE SUPREME COURT. WE WOULD LIKE TO TEST FACTS OF THE CASE BEFORE US O N THE TOUCH STONE OF THE PRINCIPLES LAID DOWN BY THE ABOVE JUDGMENT.NOT PRESSING OF GROUND I N THE APPELLATE PROCEEDINGS CANNOT BE TERMED A CONCESSION MADE AGAINST THE STATUTORY PROV ISIONS.IT IS NOT UNCOMMON THAT WHILE ARGUING THE CASES BEFORE THE TRIBUNAL,THE ASSESSEES PREFER NOT TO PRESS GROUNDS FOR VARIOUS REASONS LIKE SMALLNESS OF TAX-EFFECT OR ISSUE BEING DECIDED IN EARLY OR SUBSEQUENT AY.S. SOMETIMES,IF THE TRIBUNAL DECIDES TO ADMIT ADDITION AL EVIDENCE PRODUCED BY THE ASSESSEE OR ADMITS ADDITIONAL GROUNDS OF APPEAL OR DECIDES TO R EMIT BACK THE MATTER TO THE FILES OF THE AO/FAA AT THE BEGINNING OF THE HEARING THE ASSESSEE S DO NOT PRESS SOME OF THE GROUNDS.SO,IF THE ASSESSEE IN THE ORIGINAL APPELLATE PROCEEDINGS, DIRECTED THE-THEN-AR NOT TO PRESS THE GROUNDS,IT SHOULD NOT HAVE RAISED THE ISSUE NOW. THE ASSESSEE HAD RELIED UPON THE CASES OF AYURVEDA AND SIDDHA V. DR. K. SANTHAKUMARI (SUPRA).IN THAT CASE,ISSUE WAS AS TO WHETHER THE BA SIS FOR THE PROMOTION TO THE POST OF RESEARCH OFFICER SHOULD BE MERIT-CUM-FITNESS OR MER IT-CUM-SENIORITY.IN THE WRIT PETITION FILED BY THE PERSON,THE DEPARTMENT STATED THAT CRITERIA W AS MERIT-CUM-FITNESS WHEREAS THE RECRUIT - MENT RULES CLEARLY PROVIDED THAT CRITERIA FOR SELEC TION WOULD BE MERIT-CUM-SENIOITY.IN OUR HUMBLE OPINION,THE FACTS OF THE CASE ARE NO HELP TO THE ASSESSEE.HERE,THE ASSESSEE HAD NOT PRESSED THE GROUNDS OF APPEAL AGAINST THE PROVISION S OF ACT.THERE IS NO BAR IN THE ACT, INCOME-TAX RULES,1962 OR THE ITAT RULES,1963 THAT S TIPULATES THAT THE GROUNDS ONCE RAISED HAVE TO BE COMPULSORILY FOLLOWED AND ARGUED. IN THE CASE OF STATE OF MAHARASHTRA V/S.SACHIN S HU NDEKARI(SUPRA),THE HONBLE COURT WAS DEALING WITH FACILITIES PROVIDED TO A FREEDOM FIGHT ER FAMILY.IN THAT MATTER THE RESPONDENT WAS GIVEN EMPLOYMENT WITHOUT ADVERTISING THE POST AND W ITHOUT CONSULTING THE EMPLOYMENT EXCHANGE.IN THAT BACKGROUND IT WAS HELD THAT THE AP POINTMENT WAS NOT AS PER LAW.WE DO NOT FIND ANY SIMILARITY BETWEEN THE TWO MATTERS.THE ACT DOES NOT PRESCRIBE ANY PARTICULAR METHOD FOR NOT PRESSING THE GROUNDS OF APPEALS RAISED BEFO RE THE FAA OR THE TRIBUNAL.IN SHORT, RELIANCE PLACED BY THE ASSESSEE ON THE ABOVE REFERR ED CASES IS OF NO USE. 16. SECOND ARGUMENTS ADVANCED BY THE ASSESSEE IS ABOUT CHALLENGE OF VALIDITY OF JURISDICTION. AS PER THE ASSESSEE PARAGRAPHS 19-20 DEAL WITH THE LEGAL GROUND TAKEN BY IT RELATING TO LACK OF JURISDICTION IN ABSENCE OF ORDER U/S.127 OF THE ACT .THE AR HAD REFERRED TO THE LETTER OF THE ASSESSEE DATED 14.05.2008.WE FIND THAT THE SAID LET TER PERTAINS TO THE AY.1995-96 ONLY AND NOT TO THE OTHER YEARS.THE LETTER ONLY PROVES THAT THE ASSESSEE HAD ASKED FOR CERTAIN DETAILS FROM THE AO,BUT IT DOES NOT IN ANY MANNER PROVE THA T THE ISSUE OF CHANGE OF JURISDICTION U/S.127 WERE AGITATED BEFORE THE FAA.WE FIND THAT T HE FAA HAD DECIDED THE APPEAL ON 27.3.2008 WHEREAS THE LETTER TO THE AO IS DATED 14. 5.2008.NATURALLY,THE FAA HAD NO OCCASION TO DEAL WITH THE ISSUE. WE FIND THAT WHILE DEALING WITH THE ISSUE THE TRIBU NAL HAS DEALT ALL THE ARGUMENTS RAISED BY THE ASSESSEE AND HAD ARRIVED AT A CONCLUSION.IN OUR OPINION,WHILE DECIDING THE RECTIFICATION APPLICATION WE CANNOT SIT OVER THE JUDGMENT OF THE EARLIER BENCH,BECAUSE WE DO NOT HAVE POWER OF REVIEW.WE HAVE REPRODUCED THE GROUNDS TAKE N BY THE ASSESSEE BEFORE THE FAA IN MA-199-201/M/15-SHAKTI CABLE INDS. 17 THE SECOND ROUND OF LITIGATION AND THERE WAS NO GRO UND ABOUT CHANGE OF JURISDICTION.IN OUR OPINION,THE TRIBUNAL WAS RIGHT WHEN IT HELD THAT TH E ISSUE IS NOT ARISING OUT OF THE ORDER OF THE FAA.WHILE DECIDING THE MA WE CANNOT DECIDE SUCH AN ISSUE. AS FAR AS THE ARGUMENT OF OPENING BALANCE OF CASH C REDIT IS CONCERNED,WE WOULD LIKE TO MENTION THAT THE ISSUE RAISED BY THE ASSESSEE WAS N OT ARGUED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AS IT HAD NOT TAKEN THE SAID GROUND.CON SIDERING THE AVAILABLE MATERIAL ON RECORD THE TRIBUNAL HAD DECIDED THE ISSUE.EVEN IF THERE IS AN ERROR OF JUDGMENT ON PART OF THE BENCH,SAME DOES NOT FALL UNDER THE CATEGORY OF MIST AKE APPARENT ON THE RECORD,AS HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RAMESH ELE CTRICALS (SUPRA).THE ASSESSEE HAD NOT BROUGHT TO OUR NOTICE ANY CASE BY WHICH THE SAID JU DGMENT HAS BEEN REVERSED.WE ALSO FIND THAT IT IS NOT THAT KIND OF A MISTAKE THAT HAS BEEN DEALT WITH BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SUPREME INDUSTRIES LTD.(SUPRA) .IT IS NOT A CASE OF TYPOGRAPHICAL OR ARITHMETICAL MISTAKE.IT IS NOT THE CASE THAT THE JU DGMENT DELIVERED BY THE HONBLE BOMBAY HIGH COURT OR THE HONBLE APEX COURT HAS BEEN NOT F OLLOWED.THE SO CALLED MISTAKES POINTED OUT BY THE ASSESSEE ARE NEITHER PATENT NOR MANIFEST NOR SELF-EVIDENT AND THEY REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH.TH EREFORE,WE AGREE WITH THE ARGUMENT ADVANCED BY THE DR THAT THE ASSESSEE WANTS US TO RE VIEW THE ORDER DATED 15.06.2012 AND THAT SAME IS NOT PERMISSIBLE AS PER THE PROVISIONS OF SE CTION 254(2)OF THE ACT. IT WOULD BE NOT OUT OF PLACE TO MENTION THE BASIC F ACTS OF THE CASE.THE ASSESSMENTS WERE REOPENED FOR THE ABOVE MENTIONED THREE YEARS ON THE BASIS OF SUBSEQUENT AYS. IT WAS FOUND THAT THE ASSESSEE HAD TAKEN LOANS FROM SAME PARTIES IN AY.1997-98 AND HAD NOT FILED CONFIRMATIONS.IT NOT FILE ANY DETAIL,SO THE AO INVO KED THE PROVISIONS OF SECTION 68 OF THE ACT.IN THE APPELLATE PROCEEDINGS,BEFORE THE FAA IT CHALLENGED THE RE-OPENING OF THE ASSESSMENT AS WELL AS THE ADDITIONS MADE WITH REGAR D TO THE CREDITORS.THE FAA DISMISSED THE APPEAL FILED BY THE ASSESSEE ON BOTH COUNTS.BEFORE, THE TRIBUNAL IT DID NOT PRESS THE GROUND THAT DEALT WITH THE RE-OPENING OF THE ASSESSMENT.AC CORDINGLY, THE GROUNDS WERE DISMISSED. THE ASSESSEE MADE A REQUEST TO THE TRIBUNAL TO ADMI T ADDITIONAL EVIDENCES AND THE TRIBUNAL RESTORED BACK THE MATTER TO THE FILE OF THE AO.THE ASSESSEE COULD PRODUCE CONFIRMATION OF EIGHT CREDITORS ONLY OUT OF THE 145 CREDITORS.THE A O,DELETED THE ADDITION WITH REGARD TO THOSE EIGHT CREDITORS.IN THE APPELLATE PROCEEDINGS BEFORE THE FAA IT DID NOT OBJECT THE RE-OPENING OF THE ASSESSMENT. ONE MORE REQUEST WAS MADE TO ADMIT ADDITIONAL EVIDENCES AS PER RULE 46A OF THE RULES, BEFORE THE FAA.HE ADMITTED THE SAME AND DIRECTED THE AO TO MAKE NECESSARY ENQUIRIES.AMPLE OPPORTUNITY AND TIME WAS GIVEN TO T HE ASSESSEE TO PRODUCE DETAILS ABOUT THE CREDITORS,BUT IT FAILED TO PRODUCE THE SAME.IN THES E CIRCUMSTANCES THE FAA UPHELD THE ADDITION MADE BY THE AO.CONSIDERING THE ABOVE FACTS THE TRIBUNAL HAD IN ITS ORDER DATED 15. 06.2012 HAD TAKEN A DECISION.IN OUR OPINION,THE SAI D DECISION CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 264(2) OF THE ACT,AS NO MISTA KE APPARENT FROM THE RECORD WAS BROUGHT TO OUR NOTICE. CONSIDERING THE ABOVE DISCUSSION,WE REJECT THE MA,F ILED BY THE ASSESSEE,FOR THE AY.1994-95. MA/200-201/MUM/2015-AY.1995-96&1996-97: BOTH THE RECTIFICATION APPLICATIONS ARE IDENTICALLY WORDED AND THE ONLY DIFFERENCE IS THAT THE LAST LINE ON PAGE NO.3 OF THE APPLICATION FOR THE A Y.1995-96 APPEARS AS FIRST LINE OF THE PAGE NO.4 OF THE APPLICATION FILED FOR AY.1996-97.IN THE SE APPLICATION THE ASSESSEE HAS ADVANCED SAME SIMILAR ARGUMENTS THAT ARE PART OF THE APPLICA TION FILED FOR AY.1994-95.WE HAVE DEALT WITH ALL THE ISSUES RAISED BY THE ASSESSEE WHILE AD JUDICATING THE MA FOR EARLIER YEAR.THE ONLY DIFFERENCE IS WITH REGARD TO THE LETTER WRITTEN BY IT ON 14.05.2008 WHEREIN IT HAD REQUESTED FOR MA-199-201/M/15-SHAKTI CABLE INDS. 18 THE COPY OF THE REASONS RECORDED AND THE ORDER FOR CHANGE OF JURISDICTION FROM ONE AO TO THE ANOTHER AO.AS STATED EARLIER THE LETTER IS ABOUT AY .1995-96 ONLY AND NOT FOR THE OTHER YEARS. WE FIN+D THAT THE ASSESSEE HAD NOT RAISED THE ISSUE BEFORE THE FAA IN THE SECOND ROUND OF LITIGATION. THEREFORE,WE HOLD THAT THE TRIBUNAL HAD DEALT THE ISSUE IN THE MANNER IN WHICH IT SHOULD HAVE BEEN DEALT.THERE IS NO MISTAKE APPARENT FROM THE RECORDS THAT COULD BE RECTIFIED. SO,FOLLOWING OUR ORDER FOR AY.1994-95,WE HOLD THAT THE MA.S.FILED BY THE ASSESSEE FOR BOTH THE YEARS ARE NOT TENABLE. AS A RESULT,MA.S FILED BY THE ASSE SSEE FOR ALL THE THREE AY.S.STANDS DISMISSED. . . . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER,2015. 28 ,2015 SD/- SD/- ( / SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE: 28 .10.2015 . . . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR J BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.