Dharma Promoters Pvt Limited, CHENNAI V. ACIT, CHENNAI

MA 220/CHNY/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4117 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rejection of books of accounts; Corroborative evidences; Capital receipt; Condonation of delay
• Section: 201; 254(2)

Judgement Text

Miscellaneous Application No.220/Chny/2019 (in ITA No.2085/Chny/2014) िनधा रण वष /Assessment Year: 2008-09 M/s.Dharma Promoters Pvt. Ltd., 341/36A, 2 nd Floor, Mangal Sen Building, Bagh Kare Khan, Kishan Ganj, Delhi. v. The Asst. Commissioner- of Income Tax, Company Circle, New Delhi. [PAN: AACCD 8274 C] (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओर से/ Appellant by : Mr.Rajiv Saxena & Ms.Sumangla Saxena, Advocates यथ क ओर से /Respondent by : Mr. AR.V.Sreenivasan, Addl.CIT सुनवाई क तारीख/Date of Hearing : 13.05.2022 घोषणा क तारीख /Date of Pronouncement : 31.05.2022 आदेश / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: The assessee has filed present Miscellaneous Application u/s.254(2) of Income Tax Act, 1961 (in short “the Act"), against the order of the Tribunal in ITA No.2085/Chny/2014 dated 04.03.2019, relevant to assessment year 2008-09. 2. The assessee has narrated facts of its case and mistakes stated to be apparent on record from the order of the Tribunal dated 04.03.2019 and आयकर अपीलीय अिधकरण, ‘बी’ यायपीठ, चे ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH: CHENNAI ी वी. दुगा राव, माननीय ाियक सद एवं ी जी. मंजूनाथा, माननीय लेखा सद के सम BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA, HON’BLE ACCOUNTANT MEMBER MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 2 :: relevant contents of the Miscellaneous Application filed by the assessee are re-produced as under: 1. That the captioned appeal filed by the appellant assessee has been disposed off by the Hon'ble Bench vide an order dated 04.03.2019, whereby appeal of the appellant has been dismissed by the Hon'ble Tribunal. The same was stated to be served (perhaps on stranger at wrong address) while company has shifted to Delhi due to which it has obtained certified copy which was received on 12.07.2019. Copy of the aforesaid order of the Hon'ble Tribunal is annexed as Annexure-A to this application. 2. It is respectfully submitted that while adjudicating the aforesaid appeal of the appellant, certain mistake which are apparent from record has crept in the order of the Hon'ble Tribunal, and it is submitted with respect that such mistakes which are apparent from the order of Hon'ble Tribunal is rectifiable u/s 254(2) of the Act. The mistakes which are apparent from record is set out hereunder: 3. At the outset, it is submitted that in the aforesaid appeal, the Appellant had raised the following grounds of appeal: “1. That on the fact and circumstances of the case, the impugned order is not only bad in law and nature but it also whimsical hence it is liable to be deleted. 2. That on the fact and circumstances of the case: (i) The Ld.CIT(A)(C)-II has grossly erred in confirming the additions of Rs.36,16,0001- made by the Ld. A. 0. being 8% of the gross receipts of total work done of Rs.4,52,00,000/-; (ii) the Ld. CIT(A) (C)-II has erred in upholding the 8% of the income of total work done of Rs.4,52,00,000/- in view of the facts that the Ld. ACIT has not rejected the books of accounts and has not controverted the submissions made by the assessee company without a cogent reasons or facts being brought on records; (iii) The Ld.CIT(A)(C)-II has erred in ignoring the evidences placed by the assessee in form of list of workers to whom wages were paid; and 3. The Ld. CIT(A)(C)-II has grossly erred by enhancing and thereby treating the work done as income of the assessee in view of the following facts: a). On physical verification at different sites of work done by the assessee, the report of officer visited the fields and local enquires conducted by them and in most of the cases the report inscribes the work may have been done that has been totally ignored by the Ld. CJT(A)(C)-II in spite of the submissions made by the AR of the appellant in confronting the remand report. A physical verification was conducted by the investigation wing of the Department; b). the Ld. CIT(A)(C)-II has also erred in ignoring the vital facts reported by the investigation wing which clearly indicated that the work has been done by the assessee. c). the Ld. CIT(A)(C)-II has failed to justify the addition in view of the fact that accounts were audited and how the whole of the work done by the assessee has become the taxable income of the assessee." MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 3 :: 4. It is further submitted that aforesaid appeal was filed after a delay of 54 days and since the delay was caused on account of bonafide cause and as such, the appellant had also filed an application for condonation of delay along with the affidavit of the director stating that the order of the learned CIT(A) was delivered at an address in Chennai which does not belong to the assessee, because the assessee company has stopped its business activities in Tamil Nadu due to non-availability of subsequent business, and learned CIT(A), did not notice the address provided of the counsel at Delhi. In fact, in the appeal on 28 Oct 2014 a brief synopsis in respect of condonation of delay was also filed. 5. It is submitted that on the aforesaid date i.e. 24th Oct 2014, a paper book consisting of 163 pages was filed. This paper book not only consist of company's details such as MOA, master detail etc. but also detail of allotment of work order, invoices, statement of account of PACL India, bank statement and ITR from pages 1-137. This paper book also contained various IT AT decisions of Delhi Bench in the case of various companies engaged in the similar business with PACL and the revenue authorities have accepted the order of Hon'ble ITAT dismissing their appeal and confirming the order of CIT(A) who has estimated the income of those companies @ 2.24% of the total receipts. These orders were placed from pages 138 to 163 of the paper book. 6. It is submitted that thereafter another paperbook-2 was filed consisting of various decisions on condonation of delay at pages 164-17 5 and decisions of various High Courts and Supreme Courts from pages 176-211. These decisions on various aspects and decisions of supreme court were for the proposition that the learned AO cannot reject book results without bringing any evidence or material on record. Even for estimating the income, it is necessary for the learned AO to bring similar instances of the companies engaged in the similar business. The Hon'ble High Courts have clearly held that there will be something more than a mere suspicion to support the assessment. 7. It is submitted that the appellant also filed paperbook-3 consisting of consisting of pages 212-271. This paper book consisted of DDIT report submitted to CIT(A), who has asked for making enquiry at the relevant site and the inspector has enquired at various sites referred to in his report mentioning various villages and the details of the enquiry made at district Nizamabad and Adhilabad and the names of the villages were also mentioned along with survey numbers in which it was reported that lands were used for agriculture activities or no agricultural activities at various survey numbers. It was argued before the Hon'ble bench that out of 645.71 acres of land of various villages and districts mentioned at PB-14 in paperbook-1 only enquiry at Adhilabad of area 0.09 acres only. Thus there was no enquiry as such made by the inspector. 8. It is submitted that the appellant also filed synopsis of 8 pages dated 16/03/2015 along with an order of ITAT dated 12/03/2015 dismissing revenue's appeal in the case of Madhav Prop Corn Pvt Ltd. List of relevant dates and events, brief note on IT Inspector enquiry, AO's objections as well as CIT(A)'s enquiries were also filed and a chart giving analysis of cases filed was also filed (hand written) 9. It is necessary to submit that following documents have been filed in connection with land development activity done by the assessee: i. PB 12-14, copy of allotment of work order and detail of agricultural land. ii. PB 15-39, copy of invoices raised on PACL India Ltd. iii. PB 43-61, bank statements. iv. PB 62-81, copy of ITR along with auditor’s report and tax audit report. v. PB 82-137, copy of subsequent ITRs and auditors report showing NIL business in subsequent years as no fresh contract was received by the assessee. vi. PB 212-216, copy of DDIT report submitted to CIT appeal who made specific enquiry on the work done by the appellant i.e. after 5 years who confirmed that MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 4 :: level of the land was found to be similar to that of adjoining lands. Structure, texture, color and topography of the said land was also similar to that of surrounding lands. The villagers specifically pointed out lands belong to M/s.PACL whose work was assigned to the appellant. After five years fencing were not found. vii. PB 138-163 and 248-256, copy of ITAT orders in the cases of companies engaged in the similar business and revenue authorities have accepted the decision of ITAT dismissing their appeal and accepting CIT appeals order estimating income @.2.24% or even less. viii. PB 245-247 and 257-271, various work orders obtained by aforementioned companies engaged in the similar business and both assessee as well as revenue have accepted the estimated income adopted by the CIT Appeal/ ITAT @ 2.24%. ix. PB 176-211, copy of various decisions in rejection of books of accounts merely on guess work in absence of any material gathered held to be unjustified by the Hon'ble Supreme Court and various other High Courts. 10. It is submitted that while disposing the appeal, the Hon'ble ITAT has neither referred to any such document nor there is any discussion in· respect of the evidences placed in the paper book excepts contents of work order nor distinguished the case laws of the Hon'ble ITAT relied upon by the appellant. Non reference of vital evidence and facts of the case is a mistake apparent from record. Reliance is placed on the following judicial pronouncements: i. ITO vs. ITAT, 58 ITR 634 (Alld.) ii. UdhavdasKewalram vs. CIT, 66 TR 462 (SC) iii. K. AshanKoya& Sons vs. CIT, 172 ITR 677 (Kerala) iv. CIT vs. ITAT, 172 ITR 158 (M.P.) v. Hanuman Ram Audan Ram vs. CIT, 110 ITR 712 11. It is submitted that appellant has raised three grounds of appeal which were also reproduced at page 1 and 2 of the order but the specific grounds raised on challenging the order as bad in law (Gr.-1 ), rejection of books of accounts in absence of any material or reasons [Gr.-2(ii)], ignoring the evidence placed by the assessee in the form of list of workers to whom wages were paid [Gr. 2 (iii)], ignoring the report on physical verification accepting the work have been done by investigation wing of the dept. [Gr. 3(a) and 3(b)] and specific ground raised how the whole of the work done becomes taxable income of the assessee[Gr. 3(c)]. It is submitted that except ground no. 2(i) all other grounds of appeal raising vital legal issues and drawing attention to the facts, circumstances and evidence have not only been disposed of but also not referred to. Non disposal of Grounds of Appeal is also a mistake apparent from record. Reliance is placed on the following judicial pronouncements: i. ITO vs. ITAT 58 ITR 634 (All) ii. Laxrni Electronic Corpon Ltd. vs. CIT 188 ITR 398 (All) iii. CIT vs. Mithala Ashok Kumar 158 ITR 755(MP) iv. JainarainJeevraj vs. CIT 121 ITR 358 (Raj) v. Kesoram Industries ltd. vs. CIT 271 ITR 501 (Cal) vi. CIT vs. KM Sugar Mills P Ltd. 275 ITR 247 (All) 12. It is specifically argued by the AR that if whole of the receipts are taxable as held by the CIT appeal. The receipts would become capital receipt but not revenue receipt and so the same would not be taxable at all. It was argued if no work has been done by the appellant and PACL has made the payment the amount would neither become their expenditure not become income in the hands of the appellant in view of various decisions on scope of income. The income would only arise to the appellant for the services rendered or any I work done by it but not when no work has been done. This argument of the AR was neither referred to nor discussed or disposed off, this is again a mistake apparent from record. MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 5 :: 13. It is submitted that the Hon'ble ITAT has referred to some of the argument of the Ld. DR who in her short argument also insisted for setting aside the matter to AO but did not rely upon any decision/ precedent of the court in support of her argument, but the Hon’ble ITAT did not refer to any such argument of the Ld. DR and referred to various decisions while disposing the appeal. The new facts or argument neither discussed during the course of argument nor relied upon even otherwise not directly applicable on the assessee cannot become basis of disposing the appeal. This is also a mistake apparent from record as the appellant did not get opportunity to revert on those decisions as the same were neither referred to by the Ld. DR. nor referred to by the Hon'ble bench due to which appellant could not distinguished them. Reliance is placed on the judgment of High Court of Madhya Pradesh in the case of CIT vs. S. Kumar Tyres Manufacturing Co. reported in [2008] 305 ITR 360 (MP). 14. It is submitted that in para-8, the Hon'ble ITAT has observed the argument of the learned AO that the appellant could not substantiate the claim by leading necessary evidence on withdrawal of cash from the bank but they have failed to notice that learned AO ignored vital facts that the company obtained business by the work order (PB 12- 14) and started its work but it could not receive payment without opening bank account which could not be opened without certificate of incorporation which was received on 11/12/2007 (PB-1). Therefore, the bank account was opened in December and cheques for the work done could be received late. Bills could be raised only after obtaining ROC certificate. Assessee company can start it's business after obtaining the name hence work was started much earlier. Thus, cheques were deposited in December for the first time for the work already done by the assessee company. It has been ignored that in the month of December various payments have been received and corresponding payments have been made to the associate companies. Copy of bank statement and relevant accounts of PACL were placed from pages 40-60. The withdrawal of amount was made by the employees of the appellant and so there was no controversy but the AO did not examine these facts or raise any such query during assessment proceedings after submissions of documents and explanation during the course of assessment but merely on doubts estimated the income @ 8% of the receipts by disbelieving the aforementioned facts which were supported by the evidence. Since these facts were incorrectly understood by the Hon'ble ITAT by appraising only AO's order and aforementioned documents highlighted were totally ignored confirming these facts this is also a mistake apparent from the record. 15. It is submitted that the Hon'ble ITAT while disposing the appeal has relied upon the ratio of the decision of Bombay Hardware Syndicate v/s CIT 92ITR160 (Madras) while holding that in the event of assessee failing to establish the claim to the satisfaction of the AO, the AO is justified in rejecting the claim. This decision was neither relied by the Ld. DR nor referred to during the course of argument by the Hon'ble bench. The AR representing the appellant has got no opportunity to distinguish. It is submitted that in that case relied by the Hon'ble ITAT it has been ignored that the AO made positive enquiry from agriculturists who has replied to ITO adverse against the assessee on the basis of which AO asked the assessee to counter or cross examine those persons. But in the present case AO did not enquire or relied upon any such evidence nor CIT(A) brought any evidence during enquiry. In fact, the enquiry made by CIT Appeal proved that land belongs to PACL and was similar to the surrounding lands even after 5 years being undulated thus fit for agriculture. Thus the case law relied upon where positive steps of enquiry has been made but no answer was given by the assessee is not comparable to the present case where no enquiry has been made. Reliance of such decision clearly distinguishable in absence of any opportunity is mistake apparent from record (CIT vs. S. Kumar Tyres Manufacturing Co reported in [2008] 305 ITR 360 (MP). 16. It is submitted that similarly the Hon'ble ITAT relied upon the very old decision of Lal Mohan Krishna Lal Paul v/s CIT 12 ITR 441 (1944) (Cal). This decision was also neither cited by the Ld. DR. nor referred to by the Hon'ble ITAT during the course of argument in fact no opportunity to distinguish the case was provided to the appellant. MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 6 :: In fact, in this case also the AO made enquiry after scrutinizing the vouchers and found over writing in the vouchers as ornaments were purchased by another person who has denied and writing on the vouchers was also not of any person of their firm. In such context the Hon'ble Calcutta High Court relied upon Evidence Act in the light of positive evidence gathered by the AO. In the present case except on doubts the positive evidence provided by the appellant was not accepted as AO did not make any enquiry either from PACL or any other person. In absence of any evidence brought on record the case relied upon by the IT AT is not applicable as no opportunity was provided to the AR it could not distinguish during the course of argument. Reliance of such decision clearly distinguishable in absence of any opportunity is mistake apparent from record. 17. It is submitted that the Hon'ble ITAT also relied upon decision of Lahore High Court in the case of Gangaram Balmokand v/s CIT (1937) 5 ITR 464 where the Hon'ble High Court held as under when AO has estimated the income after being dissatisfied on the accounts of the assessee and applied flat rate of 7%. "I see no objection in the ITO or ACIT acting upon the assessment for the previous year if no better evidence is forthcoming. An Income Tax Officer, and for the matter of that, an Assistant Commissioner is not bound to accept either the correctness of the return of the genuineness and completeness of the account books produced before him or the truth of the evidence produced by the assessee. If he has ground for believing that such evidence is untrustworthy, he can certainly reject it. Having rejected such evidence, it is open to him to pursue the enquiry further and take more evidence which he considers necessary; but he is not' bound to do so. In the absence of any better evidence he is certainly entitled to fall back on the assessment of income made during the previous year, even though that assessment might have been the best judgement estimate." 18. The Hon'ble High Court in this case justified the AO's action in estimating the income on the basis of previous year results. The Hon'ble ITAT did not appreciate the essence of this judgement that when AO or any other authority is not satisfied with the correctness of the accounts, they can estimate the income on the basis of similar instance of assessee's own business or otherwise. In the present case more than 10 instances have been quoted where income was estimated @2.24% by the Hon'ble ITAT which was based upon this reasoning only that AO was not fully satisfied with the supporting evidence in the accounts. 19. It is submitted that the decisions relied upon by the Hon'ble ITAT on its own can be applied if directly applicable on the facts of the case but ratio laid down in different and remote context cannot be applied. In the decisions cited by the appellant estimation made held to be justified on the basis of previous year or similar business. Since the Hon'ble ITAT has not provided any opportunities to counter or distinguish these decisions to the appellant while decisions cited by the ITAT in fact justifying assessee's argument that in absence of satisfaction only alternative available to the AO was estimating the income on the basis of similar instances. The appellant has already cited before the Hon'ble ITAT similar instances as decided by the co-ordinate benches, copy of which were filed also. The ratio wrongly applied or interpreted is mistake apparent from record and required to be rectified. 20. It is submitted that appellant has cited various decisions in which companies were engaged in the similar business and coordinate benches time and again held action of the CIT Appeal justified in estimating the income @ 2.24%. The Ld. DR did not refer any such contrary decision. Non following decisions of coordinate benches without distinguishing the same is also a mistake apparent from record. ii. Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466 (SC) iii. Mohan Meaking Ltd Vs. ITO (89 ITD 179(TM) MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 7 :: iv. DLF Universal Ltd. vs CIT 306 ITR 271 HC(Del) v. Affection Investments Ltd. vs ACIT 326 ITR 255 HC (Gujarat) vi. India Carbon Ltd. vs CIT and DCIT 201 Taxation 479 HC (Gauhati) vii. Thirani Chemicals Ltd. vs DCIT 227 CTR 52 HC(Del) 21. It is submitted that Hon'ble ITAT at Para-9 has recorded after applying aforementioned decisions which is reproduced here under: "Therefore, it cannot be said that the additions have been made based on the presumptions and surmises. It is case of failure of assessee to prove the claim to the satisfactions of the AO. The facts of the case discussed above, justifies the AO to infer that it is a colorable transaction. When the transaction had been held to be a colorable transaction, the entire gross receipts are liable to be taxed. The assessee cannot be permitted to take advantage of fraud of himself, hence the AO was not justified in estimating the total income at 8% of the gross receipts instead of bringing the entire gross receipts to tax. The order if the Ld. CIT Appeal is well reasoned, we do not find any reason to interfere with the order of the Ld. CIT Appeal." 22. It is submitted that the decisions cited in Para-8 which were relied upon for concluding in Para-9 were in relation to either where the positive evidence brought on record by the AO by making enquiry as expressed above in Para 13-16 or estimation of income on the basis of similar instances relied upon by the AO of the assessee' s business. But in the present case no positive evidence has been brought by the AO and so the Hon’ble ITAT has erred in their conclusion that in case of failure of the assessee to prove the claim to the satisfaction of the AO justifies the AO to infer that it is a colorable transaction. In absence of any positive evidence it cannot be called colorable transaction as in no decision it has ever been held that merely on the basis of presumptions or failure of the assessee to prove the claim to the satisfaction of the AO transaction would become colorable. The Hon'ble Supreme Court time and again held even in the recent decisions while explaining colorable transaction only, when enquiry has been made by AO or revenue authorities brought positive evidence on record but not in a case where no material has been gathered by the AO and books of account have been rejected merely on guess work. During the course of argument, decision of Hon'ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd v/s CIT 26 ITR 775 (SC) was quoted PB 183-187 and this decision has been continuously followed by various High Courts and some of the decisions were placed before the Hon'ble bench PB 176-211. The wrong understanding of the law laid down by the Hon'ble Supreme Court and wrong reliance of the ratio laid down is mistake apparent from record. 23. In the aforesaid circumstance it is humbly submitted that the Hon'ble ITAT may rectify the mistake apparent from record as the Hon'ble Supreme Court have already held in the case of Honda Siel Power Products Ltd vs Commissioner Of Income Tax, Delhi [2007] 295 ITR 466 (SC)on 26 November, 2007 that: 13. "Rule of precedent" is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 8 :: are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case." It is submitted that the Hon'ble Supreme Court have reversed all the decisions earlier in which it was held that if mistake is found to be such which requires investigation or enquiry that would amount to review and so after the decision of the Hon'ble Supreme Court what is to be seen is manifest error of the ITAT and prejudice caused to the party in order to rectify mistake apparent for record. 24. That the Hon'ble High Court in the case of Champalal Chopra vs. State of Rajasthan reported in 257 ITR 7 4 has further observed that, "A reading of sub-section (2) of Section 254 of the Income Tax Act, 1961, makes it clear that its scope and ambit is limited. It restricts the power of the Appellate Tribunal to rectify mistakes apparent from the record. In the normal course, the power of rectification cannot be extended to recalling the entire order, because obviously it would mean passing a fresh order. This is not the legislative intent. However, in a given case where the factual mistake is so apparent that it becomes necessary to correct the same, the Tribunal would be justified in not only correcting the said mistake by way of rectification but if the judgment has proceeded on the basis of that fact, it would be justified in recalling such order. 25. Further, in the case of Bata India Ltd. [1996] 217 ITR 871 (Cal.) it has been held that when the prejudicial results from the order impugned is attributable to the Tribunal's mistake, error or omission, it is the bounden duty of the Tribunal to set it right. 3. The Ld.AR for the assessee submitted that order of the Tribunal in ITA No.2085/Chny/2014 dated 04.03.2019, suffers from number of mistakes apparent on record, which needs to be recalled u/s.254(2) of the Act. The Ld.AR referring to the order and grounds of appeal filed by the assessee submitted that the Tribunal has failed to consider certain grounds, including Ground Nos.1, 2(ii), 2(iii), 3(a) & 3(b), which are taken to challenge the findings of the AO on the basis of certain vital information which constitutes mistakes apparent on record. The Ld.AR further submitted that the assessee has filed voluminous Paper Book as stated in Para No.9 of its Miscellaneous Application. However, those papers are not considered by the Tribunal while rendering the decision. Non-reference of vital evidence constitutes mistakes apparent on record. The Ld.AR also MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 9 :: argued in light of certain judicial precedents, including the decision of the Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. v. CIT reported in [2007] 295 ITR 466 (SC), that the assessee has relied upon the decision of ITAT, wherein, on similar circumstances, profit has been estimated @2.24%, however, the Tribunal while adjudicating the issue, failed to apply the ratio laid down in the said case. Further, the Tribunal has followed two judgments of the Hon’ble Madras High Court in the case of Bombay Hardware Syndicate v. CIT reported in [1973] 92 ITR 160 (Mad.) and also the Hon’ble Lahore High Court decision in the case of Ganga Ram Balmokand v. CIT reported in 5 ITR 464. However, those decisions were neither cited by the assessee nor considered by the AO, but the Tribunal on its own followed the ratio, even though, those two case laws are not applicable to the facts of the present case. Therefore, for all these reasons, the order of the Tribunal is contained number of mistakes apparent on record and thus, order of the Tribunal needs to be recalled u/s.254(2) of the Act. 4. The Ld.DR for the Revenue submitted that the assessee has failed to make out a case of mistakes apparent on record from the order of the Tribunal, but, what is canvassed by the Ld.AR is reviewing the decision rendered by the Tribunal in the given facts and circumstances of the case, which is not permissible u/s.254(2) of the Act, and therefore, there is no merit in Miscellaneous Application filed by the assessee and same needs to be dismissed. MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 10 :: 5. We have heard both the parties and considered the Miscellaneous Application filed by the assessee along with order of the Tribunal in ITA No.2085/Chny/2014 dated 04.03.2019. We find that the Tribunal has decided the issue of additions made by the AO towards gross receipts by applying gross profit @8% by considering grounds of appeal filed by the assessee, the various arguments advanced by the Ld.Counsel for the assessee in light of the decision of the Hon’ble Madras High Court in the case of Bombay Hardware Syndicate v. CIT(supra) and also the decision of the Hon’ble Lahore High Court in the case of Ganga Ram Balmokand v. CIT and concluded that there is no error in the reasons given by the Ld.CIT(A) to sustain the addition towards estimation of income. We have carefully gone through various objection taken by the assessee in its Miscellaneous Application right from non-consideration of certain grounds as stated in the previous paragraphs, non-consideration of decision of the co-ordinate Bench and also following the ratios of two judgments, which were neither cited by the assessee nor considered by the AO. As regards, Ground No.1, 2(ii), 2(iii), 3(a), 3(b) & 3(c) are concerned, there is no dispute on grounds taken by the assessee on the basis of certain vital aspects, but none of those grounds were specifically addressed by the Tribunal. As regards, voluminous Paper Book filed by the assessee containing certain vital aspects, including copies of invoices, copy of work order and other details, although, the assessee has filed various evidences, but those evidences are not finding place in the order of the Tribunal. The assessee had also cited MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 11 :: decision of the co-ordinate Bench of ITAT, for estimation of profit on similar circumstances and the Revenue has accepted the decision of the ITAT, dismissing their appeal and estimation of income @ 2.24% or even less on gross sales. However, those decisions are not at all considered by the Tribunal in its order. Similarly, the Tribunal has relied upon two decisions of the High Courts including the jurisdictional High Court of Madras and another from the Hon’ble High Kolkatta Court, which was followed the decision of the Hon’ble Lahore High Court. However, ratio of those two judgments have been relied upon without confronting those judgments to the assessee for its rebuttal. It is a well settled principle of law by the decision of the Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. v. CIT (supra), wherein, it has been very categorically held that non-consideration of binding decision is mistake apparent on record, which needs to be rectified u/s.254(2) of the Act. If you apply similar analogy to the case laws relied upon by the Tribunal on its own without allowing the assessee to offer its comments on those judgments and its applicability to its case also constitutes a mistake apparent on record in line with the reasoning given by the Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. v. CIT. In this case, the Tribunal although has discussed the issue at length in light of various arguments, but ignored to consider certain vital aspects and arguments of the counsel, including certain judicial precedents. In our considered view said finding constitutes mistakes apparent on record. Therefore, considering the facts and MA No.220/Chny/2019 (in ITA No.2085/Chny/2014) :: 12 :: circumstances of the case and also for all those reasons sated in the previous paragraphs of this order, we are of the considered view that there is mistake apparent on record in the order of the Tribunal in ITA No.2085/Chny/2014 dated 04.03.2019 and thus, we recall the order passed by the Tribunal and restore the appeal filed by the assessee. The registry is directed to fix the appeal for hearing in due course and inform both the parties. 6. In the result, the Miscellaneous Application filed by the assessee is allowed in terms of our observations given herein above. Order pronounced on the 31 st day of May, 2022, in Chennai. Sd/- (वी. दुगा राव) (V. DURGA RAO) याियक सद य/JUDICIAL MEMBER Sd/- (जी. मंजूनाथा) (G. MANJUNATHA) लेखा सद य/ACCOUNTANT MEMBER चे ई/Chennai, दनांक/Dated: 31 st May, 2022. TLN आदेश क ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 4. आयकर आयु"/CIT 2. यथ /Respondent 5. िवभागीय ितिनिध/DR 3. आयकर आयु" (अपील)/CIT(A) 6. गाड फाईल/GF