SHRI SHRI ARUN KUMAR AGRAWAL, RAIPUR (CG) V. THE DY. COMMISSIONER OF INCOME TAX 1(1), RAIPUR (CG)

MA 22/BIL/2016

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4863 (ITAT-RAIPUR)
• Duration Of Justice: 5 year(s) 3 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 05-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 154

Judgement Text

आयकर अपीलȣय अͬधकरण Ûयायपीठ रायप ु र मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR (Through Virtual Court) BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI JAMLAPPA D BATTULL, ACCOUNTANT MEMBER M.A. No. 22/RPR/2016 (Arising out of ITA No.(s) 34 & 55/ BLPR/2013) Ǔनधा[रणवष[ / Assessment Year : 2006-07 Shri Arun Kumar Agrawal, S/o. Shri Rekhraj Agrawal, C/o. M/s. Agroha Industries, Ward No.11, Main Road, Neora, Raipur (C.G.). PAN : ACIPA5816G ...........आवेदक/Applicant बनाम / V/s. The Deputy Commissioner of Income Tax-1(1), Raipur (C.G.) .......Ĥ×यथȸ / Respondent Assessee by : Shri R.B Doshi, AR Revenue by : Shri P.K. Mishra, DR स ु नवाई कȧ तारȣख / Date of Hearing : 01.04.2022 घोषणा कȧ तारȣख / Date of Pronouncement : 05.04.2022 2 Shri Arun Kumar Agrawal Vs. DCIT 1(1) MA No. 22/RPR/2016 आदेश/ ORDER PER RAVISH SOOD, JM: The present Miscellaneous Application filed by the assessee applicant arises from the order passed by the Tribunal while disposing off the cross-appeals of the assessee/revenue in ITA No.(s) 34 & 55/BIL/2013, dated 23.06.2016 for assessment year 2006-07. 2. Succinctly stated, assessment in the case of the assessee was framed u/s.153A of the Act, dated 31.12.2008, wherein his income was determined at Rs.76,77,370/- after, inter alia, making the following additions /disallowances : 3. On appeal, the CIT(Appeals) partly vacated the additions/ disallowances made by the Assessing Officer. Sl. No. Particulars Amount ( in Rs.) 1. Re-characterization of the income shown by the assessee in HUF capacity as that of income of the assessee Rs. 1,00,850/- 2. Addition of unsecured loans/current liabilities Rs. 39,74,131/- 3. Addition towards difference of gross profit Rs. 12,64,677/- 4. Addition of suppressed sales Rs. 15,56,744/- 5. Addition on account of husk sales Rs.1,60,027/- 3 Shri Arun Kumar Agrawal Vs. DCIT 1(1) MA No. 22/RPR/2016 4. Aggrieved, both the assessee/revenue carried the matter in appeal before the Tribunal. 5. Before the Tribunal, it was, inter alia, claimed by the assessee that the CIT(Appeals) after verification of the documents seized and evidences filed before them, viz. confirmatory letters, I.T. returns acknowledgements, computation of income, copies of the relevant extracts of the bank statements/passbooks, balance sheets etc. had stated to have tabulated the outcome of the same by way of an “Annexure” which was claimed to have formed part of his order. It was claimed by the assessee that as it had not received any “Annexure” as a part of the order of the CIT(Appeals), therefore, he was unable to plead his appeal as well as controvert the appeal filed by the Revenue in a proper manner. Considering the aforesaid factual position, the Tribunal vide its order passed in ITA No.(s) 34 & 55/BIL/2013, dated 23.06.2016, being of the view that in the absence of the “Annexure” neither the assessee nor the Revenue was in a position to support or controvert the impugned order that was assailed before them, thus, restored the entire order to the file of the CIT(Appeals) with a direction to adjudicate the same afresh i.e., after affording a due opportunity of being heard to the assessee and without being prejudiced by its earlier order. Accordingly, the Tribunal vide its aforesaid order allowed the cross-appeals for statistical purposes. 4 Shri Arun Kumar Agrawal Vs. DCIT 1(1) MA No. 22/RPR/2016 6. Before us, it was claimed by the Ld. Authorized Representative (for short ‘AR’) for the assessee that though the assessee in the absence of the “Annexure” forming part of the impugned order had expressed his inability to support or controvert the cross-appeals only qua one of his ground i.e., addition made by the Assessing Officer u/s.68 of the Act, however, the Tribunal despite there being any argument of either of the parties in respect of the remaining issues had erroneously restored the entire matter to the file of the CIT(Appeals) for fresh adjudication with a specific direction to re-adjudicate the same without being prejudiced by his earlier appellate order. It was claimed by the Ld. AR that the remaining grounds of appeal i.e., except for that as was raised before it qua the addition made u/s.68 of the Act had been summarily disposed off by the Tribunal without considering the issues therein involved and any contentions having been advanced by the parties before it. Backed by the aforesaid facts, it was claimed by the Ld. AR that the summarily disposing off the cross-appeals without hearing the assessee/appellant/respondent, and restoring of the same to the file of the CIT(Appeals) with a direction to adjudicate the issues involved in the appeals afresh without being prejudiced by his earlier order, being clearly in the nature of a mistake apparent and glaring from record had rendered the order passed by the Tribunal amenable for rectification under sub-section (2) to Section 254 of the Income Tax Act, 1961 ( for short ‘the Act’). 5 Shri Arun Kumar Agrawal Vs. DCIT 1(1) MA No. 22/RPR/2016 7. Per contra, the Ld. Departmental Representative (for short ‘DR’) relied on the orders of the lower authorities. 8. As observed by us hereinabove, the Tribunal vide its order passed while disposing off the cross-appeals in ITA No.(s) 34 & 55/BIL/2013, dated 23.06.2016, had restored both the appeals to the file of the CIT(Appeals), observing as under: “5. In view of the above submissions of both the sides, admittedly and undisputedly, the assessee did not receive copy of Annexure alongwith copy of the first appellate order against which he has filed appeal. Further, the ld. CIT(A) fairly accepts that copy of the said Annexure to the first appellate order is not available in the first appellate proceedings record. In this situation, in our considered opinion, neither the assessee nor the revenue can support or controvert the impugned order because it is incomplete in the absence of Annexure as stated in para 2.5 of the impugned order. In view of the above, we are of the considered opinion that the entire issues in the first appeal, deserve to be restored to the file of the ld. CIT(A) for fresh adjudication after affording due opportunity of hearing to the assessee and without being prejudiced by the earlier appellate order. Consequently, the appeal of the assessee, as well as the Revenue are allowed for statistical purposes.” It is the case of the assessee before us that the disposal of the aforesaid cross- appeals de-hors any contentions having been advanced by either of the parties qua the issues therein involved, is clearly in the nature of a mistake which is glaring and apparent from record that is rectifiable as per sub-section (2) to Section 254 of the Act. 9. We have given a thoughtful consideration to the aforesaid claim of the Ld. AR and are unable to persuade ourselves to subscribe to the same. 6 Shri Arun Kumar Agrawal Vs. DCIT 1(1) MA No. 22/RPR/2016 Admittedly, it is a matter of fact borne from the record that the Tribunal while disposing off the aforementioned cross-appeals in ITA No.(s) 34 & 55/BIL/2013 dated 23.06.2016 had disposed off the respective appeals by way of a speaking order and restored the issues therein involved to the file of the CIT(Appeals) for fresh adjudication. As the Tribunal had arrived at a view considering the totality of the facts involved in the cross-appeals before them and restored the issue to the file of the CIT(Appeals) with a specific direction to adjudicate the same afresh, therefore, we are afraid that our indulgence at this stage would be nothing but seeking of a review of the order of the Tribunal, which as per mandate of law is not permissible. Our aforesaid conviction is fortified by the judgment of the Hon’ble Supreme Court in the case T.S. Balaram, ITO v. Volkart Bros., (1971) 82 ITR 50 (SC) wherein it has been observed as under: “A mistake apparent on the record must be an obvious and patent mistake and not, something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde and ors. v. Millikarjun Bhavanappa Tirumale(1) this Court while Spelling out the scope of the power of a High Court under Art. 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record-see Sidhamappav.. Commissioner- of Income-tax, Bombay(2). The power of the officers mentioned in S. 154 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". In this case it is not necessary for us to spell out the distinction between the expressions 66 error apparent on the face of 7 Shri Arun Kumar Agrawal Vs. DCIT 1(1) MA No. 22/RPR/2016 the record" and "mistake apparent from the record". But suffice it to say that the Income tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent.” Accordingly, in terms of our aforesaid deliberations, as the assessee applicant in the garb of the present Miscellaneous Application filed under sub-section (2) to Section 254 of the Act had basically sought a review of the order of the Tribunal, therefore, the same is not maintainable. 10. In the result, Miscellaneous Application filed by the assessee is dismissed in terms of our aforesaid observations. Order pronounced in open court on 05 th day of April, 2022 Sd/- Sd/- JAMLAPPA D BATTULL RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायप ु र/ RAIPUR ; Ǒदनांक / Dated : 05 th April, 2022 **SB आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals), Raipur (C.G) 4. The CIT, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध,आयकर अपीलȣय अͬधकरण, रायप ु र बɅच, रायप ु र / DR, ITAT, Raipur Bench, Raipur. 6. गाड[फ़ाइल / Guard File. आदेशान ु सार / BY ORDER, // True Copy // Ǔनजी सͬचव / Private Secretary आयकर अपीलȣय अͬधकरण, रायप ु र / ITAT, Raipur. 8 Shri Arun Kumar Agrawal Vs. DCIT 1(1) MA No. 22/RPR/2016 Date 1 Draft dictated on 01.04.2022 Sr.PS/PS 2 Draft placed before author 01.04.2022 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order