GUNANATH B. THAKOOR, V. JCIT SP. RG -1,

MA 228/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3804 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 05-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMMIT K R
• Assessee Lawyers: D P BAPAT
• Keywords: Depreciation; Income from undisclosed sources; Block assessment; Tax effect; Retraction

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI R.K. PANDA ,(AM) MA NO.228/MUM/2010 ARISING OUT OF IT(SS)A NO.64/MUM/2009 ASSESSMENT YEAR : BLOCK PERIOD: 1.4.1987 TO 15.9.1997 MR. GUNANATH B. THAKOOR C/O., MOHAN BHASKAR THAKOOR DSILVA BUILDING, GROUND FLOOR OPPOSITE AGAR BAZAR, S.K. BOLE ROAD, DADAR MUMBAI-400 028. ..( APPELLANT ) P.A. NO. (AABPT 4762 H) VS. ASSTT. COMMISSIONER OF INCOME TAX -20(3) 5 TH FLOOR, PIRAMAL CHAMBERS LALBAUG, PAREL MUMBAI-400 012. ..( RESPONDENT ) APPLICANT BY : SHRI D.P. BAPAT RESPONDENT BY : SHRI SUM MIT KR. O R D E R PER D.K. AGARWAL (JM). THIS MISCELLANEOUS PETITION DATED 3.4.2010 U/S.254(2) O F THE INCOME TAX ACT, 1961(THE ACT) HAS BEEN FILED BY THE ASSE SSEE SEEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL IN IT(SS) A NO.64/MUM/2009 DATED 4.3.2010, IN RELATION TO THE ASSESSMENT YEAR PER TAINING TO THE BLOCK PERIOD 1.4.1987 TO 15.9.1997. MA NO.228/M/10 A.Y:BP 2 2. IT HAS BEEN CONTENDED THAT THE TRIBUNAL WHILE RECOR DING THE FINDING AT PAGE 13 OF ITS ORDER THAT (II) THERE IS N O EVIDENCE ON RECORD TO SHOW THAT THE UNACCOUNTED INCOME CLAIMED BY THE ASSESSEE TO BE HIS OWN ACTUALLY BELONGED TO THE FIRM AND (IV) NO CONT RARY MATERIAL WAS PRODUCED TO CONTROVERT THE FINDING OF FACT RECORDED BY THE TRIBUNAL, HAS NOT CONSIDERED THE FINDING RECORDED BY THE CIT(A) I N THE ORDER PASSED IN QUANTUM APPEAL REFERENCE OF WHICH WAS DRAWN I N THE COURSE OF HEARING OF THE APPEAL SPECIFICALLY PAGE NO.84, 89, 94, 95, 96 AND 98 OF THE ASSESSEES PAPER BOOK AS AFFIRMED BY THE AFFIDAVIT OF SHRI DILIP BAPAT, THE LD. COUNSEL FOR THE ASSESSEE WHO APPEARED BEF ORE THE TRIBUNAL FOR THE SAID APPEAL. IT WAS FURTHER SUBMITTE D THAT IN PARTICULAR THE FOLLOWING FACTS ON RECORD HAVE NOT BEEN REFERRED T O IN THE ORDER OF THE TRIBUNAL : A) INTEREST WAS RECEIVED FROM THE BUILDERS FOR DELAY IN TH E PAYMENT OF CONSIDERATION FOR SALE OF FACTORY LAND. B) THE AGREEMENT FOR SALE OF THE FACTORY LAND, BEING ONE OF THE ASSETS OF THE PARTNERSHIP FIRM OF THAKOOR METAL INDUSTRI ES, WAS ENTERED IN TO BY THE PARTNERS OF THE FIRM. C) THE ASSESSEE HAD AFFIRMED, IN THE STATEMENT RECORDED UNDE R SECTION 132(4), THAT HE WAS ONE OF THE PARTNERS OF THE PARTNERSHIP FIRM OF THAKOOR METAL INDUSTRIES. IT WAS FURTHER CONTENDED THAT THE TRIBUNAL WHILE GIVI NG FINDING ON PAGE-13 OF THE ORDER HAS NOT TAKEN COGNIZANCE OF THESE FACTS WHICH ARE ON THE RECORDS OF THE TRIBUNAL. IT WAS, THEREFORE, SUB MITTED THAT THE ORDER OF THE TRIBUNAL CONTAINS A MISTAKE APPARENT FRO M RECORD AS MA NO.228/M/10 A.Y:BP 3 STATED AFORESAID AND HENCE, DESERVES TO BE ADJUDICATED U NDER SECTION 254(2) OF THE INCOME TAX ACT. 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED IN THE MISCE LLANEOUS PETITION FURTHER SUBMITS THAT THE TRIBUNAL WHILE DECID ING THE ISSUE HAS NOT CONSIDERED THE FINDING OF FACT RECORDED BY THE LD. CIT(A) IN HIS ORDER DATED 28.3.2001 IN THE QUANTUM APPEAL IN THE CASE OF MR. VASANT B. THAKOOR APPEARING IN PARA (IV) OF PAGE-89, AT PAGES 94, 95, 96 AND 98 OF THE ASSESSEES PAPER BOOK. HE, THEREFORE, SUBMITS THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIB UNAL AND THEREFORE THE ORDER PASSED BY THE TRIBUNAL BE RECALLED. THE REL IANCE WAS ALSO PLACED ON THE FOLLOWING DECISIONS :- I) HONDA SIEL POWER PRODUCTS LTD. VS. CIT, DELHI (2007) 2 95 ITR 466(SC) AND II) CIT VS. MOOL CHAND SHYAM LAL (2005) 273 ITR 160(ALL. ) 4. ON THE OTHER HAND THE LD. DR SUBMITS THAT THE TRIB UNAL AFTER RECORDING THE FACTS OF THE CASE AND THE PLEA TAKEN BY B OTH THE PARTIES HAS PASSED A WELL REASONED ORDER, THEREFORE, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE ASSESSEE WANTS REVIEW WHICH I S NOT PERMISSIBLE UNDER THE PROVISIONS OF THE ACT AND, THEREFO RE, THE ORDER PASSED BY THE TRIBUNAL DOES NOT DESERVE TO BE RECALLED. MA NO.228/M/10 A.Y:BP 4 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE UN DISPUTED FACTS IN BRIEF AS RECORDED BY THE TRIBUNAL IN THE IMPUGNED AP PEAL OF THE ASSESSEE ARE REPRODUCED AS UNDER: 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT IN THIS CASE ASSESSMENT ORDER WAS ORIGINALLY PASSED U/S.158BC OF THE IT ACT, 1961(THE ACT), ON 30.9.1999 WHERE THE TOTAL UNDISCLOSED INCOME WAS DETERMINED AT RS.17,89,270/- AS AGAINST THE UNDISCLOSED INCOME DECLARED IN THE BLOCK RETURN AT RS.2,60,770/-. AGAINST THIS ORDER ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO DECIDED THE APPEAL VIDE ORDER DATED 28.3.2001 GIVING CERTAIN RELIEF TO THE ASSESSEE. THEREAFTER AS A RESULT OF ORDER U/S.263 PASSED BY THE LD. CIT IN RESPECT OF APPEAL EFFECT ORDER PASSED U/S.250, ANOTHER BLOCK ASSESSMENT ORDER WAS PASSED ON 30.4.2004 AND THE TOTAL UNDISCLOSED INCOME WAS DETERMINED AT RS.16,12,770/-. AS PER THIS ORDER, THE ADDITIONS MADE TO THE DECLARED INCOME ARE RS.1.00 LACS TOWARDS HOUSEHOLD EXPENSES, RS.5.00 LACS TOWARDS CASH SALE OF SCRAP/MACHINERY AND RS.7,52,000/- TOWARDS INTEREST RECEIVED IN CASH FROM THE BUILDER. SINCE THE ASSESSED UNDISCLOSED INCOME WAS HIGHER THAN THE DISCLOSED INCOME IN THE BLOCK RETURN, THE AO AFTER CONSIDERING THE ASSESSEES REPLY DATED 21.1.2006 WHEREIN IT HAS BEEN INTERALIA STATED THAT ON THE IMPUGNED ADDITION OF INTEREST RECEIVED IN CASH FROM BUILDER TWO APPELLATE AUTHORITIES TOOK DIVERGEN T VIEWS, THUS IT IS A CLEAR CASE WHERE ADDITIONS HAVE BEEN SUBJECTED TO CONFLICTING PROCESS OF ADJUDICATION AT THE HANDS OF THE APPELLATE AND ADMINISTRATIVE AUTHORITIES AND HENCE, THE ADDITION CANNOT BE SUBJECT TO LEVY OF PENALTY U/S.158BFA OF THE ACT, WAS OF THE VIEW THAT THE ASSESSEE HAS NOT BROUGHT ON RECORD ANY FRESH EVIDENCE OTHER THAN REPEATING THE SUBMISSIONS AS MADE BEFORE THE AO AND THE APPELLATE AUTHORITIES, WHO HAVE DECIDED THE ISSUE MA NO.228/M/10 A.Y:BP 5 AGAINST THE ASSESSEE, FOUND NO MERIT IN THE SUBMISSION OF THE ASSESSEE AND ACCORDINGLY IMPOSED PENALTY OF RS.7,51,200/- BEING 100% OF TAX ON UNDISCLOSED INCOME ARRIVED AT AFTER GIVING EFFECT OF ORDER OF TRIBUNAL, VIDE ORDER DATED 9.3.2006 PASSED U/S.158 BFA(2) OF THE ACT. ON APPEAL, THE LD. CIT(A) OBSERVED THAT IT IS INCUMBENT UPON THE ASSESSEE TO COMPUTE ITS UNDISCLOSED INCOME DURING THE INTERVENING PERIOD AND DISCLOSE THE SAME IN THE RETURN FOR THE BLOCK PERIOD. ONLY IN SUCH CASE, WHERE FULL AND TRUE DISCLOSURE OF UNDISCLOSED INCOME HAS NOT BEEN MADE IN SPITE OF SUFFICIENT TIME AVAILABLE WITH THE ASSESSEE, THE PENALTY BECOMES LEVIABLE. THE ONLY EXCEPTION WHERE PENALTY MAY NOT BE IMPOSED COULD BE THE CIRCUMSTANCES WHICH WERE BEYOND THE CONTROL OF THE ASSESSEE. IN THE CASE OF THE APPELLANT NO SUCH CIRCUMSTANCES EXISTED AND KEEPING IN VIEW THE FINDING RECORDED IN THE QUANTUM APPEAL, THE ASSESSEE IS LIABLE TO PENALTY. HE FURTHER OBSERVED THAT DURING SEARCH OPERATION CONCLUDED IN SEPT. 1997 THE APPELLANT HAD ADMITTED UNDISCLOSED INCOME U/S.132(4) AT RS.7,28,500/- CONSISTING OF CASH FOUND DURING THE COURSE OF SEARCH. THEREAFTER, THE APPELLANT AFTER TWO YEARS RETRACTED FROM HIS DISCLOSURE VIDE AFFIDAVIT DT.8.3.1999, WHICH IS AN AFTER-THOUGHT INTENTIONALLY TRIED TO COMPLICATE THE SIMPLE ISSUE BY NOT DISCLOSING THE CORRECT INCOME IN THE BLOCK RETURN AND CLAIMING THAT THE INCOME SHOULD BE ASSESSED IN THE HANDS OF THE FIRM. THE APPELLANT SOUGHT TO CREATE A DISPUTE REGARDING ASSESSABILITY OF THE UNDISCLOSED INCOME. THUS THE APPELLANT DID NOT FOLLOW THE PROVISIONS OF SEC.132(4A) TO COMPUTE AND DECLARE HIS UNDISCLOSED INCOME IN THE BLOCK RETURN. THE APPELLANT INTENTIONALLY ATTEMPTED TO REDUCE HIS TAX LIABILITY AND EVADE TAX ON HIS UNDISCLOSED INCOME WHICH HAD BEEN COMPUTED BY THE DEPARTMENT. HE FURTHER OBSERVED THAT DECLARATION MADE U/S.132(4) IS AN ADMISSIBLE EVIDENCE WHICH CAN BE USED IN ANY PROCEEDING UNDER THE ACT. THE APPELLANT HAS NOT CLAIMED THAT THE STATEMENT WAS RECORDED UNDER COERCION OR ANY KIND OF PRESSURE. IT IS WRONG ON THE PART OF THE APPELLANT TO STATE AS PER HIS AFFIDAVIT DATED 8.3.1999 THAT HIS DISCLOSURE U/S.132(4) WAS ADHOC IN NATURE AND WITHOUT ANY PARTICULAR BASIS OR MA NO.228/M/10 A.Y:BP 6 DETAILS. THE LD. CIT(A) WHILE DISTINGUISHING THE DECISIONS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE IN CIT VS. CALCUTTA CREDIT CORPN. LTD. (1987) 166 ITR 29(CAL.) AND IN ITO VS. SMT. PRAMILA PRATAP SHAH (2006) 100 ITD 160(MUM.) HELD, THAT THE PENALTY U/S.158BFA(2) IS LEVIABLE IN THE CASE OF THE APPELLANT. HOWEVER, THE PENALTY SHOULD BE LEVIED ON THE BASIS OF TAX EFFECT ON THAT PART OF UNDISCLOSED INCOME WHICH IS IN THE EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME DECLARED IN THE RETURN. ACCORDINGLY HE DIRECTED THE AO TO LEVY MINIMUM PENALTY ON THIS BASIS AND HENCE, PARTLY ALLOWED THE APPEAL. ON FURTHER APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL, THE TRIBUNAL FOR THE REASONS AS DISCUSSED IN THE SAID ORDER SUPRA, CONFIRMED THE LEVY OF PENALTY. 6. WE FURTHER FIND THAT THE REFERENCE OF PAGE NOS. 84 , 89, 94, 95, 96 AND 98 OF THE ASSESSEES PAPER BOOK GIVEN BY THE LD. COUNSEL FOR THE ASSESSEE IS THE ORDER OF THE LD. CIT(A) DATED 28.3.2 001 PASSED IN THE CASE OF MR. VASANT B. THAKOOR FOR THE BLOCK PERIOD 1.4.87 TO 15.9.97 AND THE CORRESPONDING PAGES ARE AT INTERNAL PA GE NOS. 1, 6, 11, 12, 13 AND 15 OF THE SAID ORDER. WE FURTHER FI ND THAT THE SAID ORDER OF THE LD. CIT(A) WAS DULY CONSIDERED BY THE TRI BUNAL AT PAGE 12 AND 13 OF THE ORDER DATED 4.3.2010 PASSED BY THE TRI BUNAL AS UNDER : FROM THE FAIR READING OF THE ABOVE WE FIND THAT TH E TRIBUNAL HAS CONFIRMED THE ADDITION OF UNACCOUNTED INCOME AS UNEXPLAINED INCOME ON THE BASIS OF ACCEPT ANCE OF INCOME IN THE STATEMENT OF THE ASSESSEE RECORDED U/S.132(4) OF THE ACT AND THE TRIBUNAL HAS REJECTED THE RETRACTION MADE BY THE ASSESSEE THROUGH HIS AFFIDAV IT. THUS, THERE IS NO DISPUTE THAT THE UNDISCLOSED INCO ME FINALLY DETERMINED IN THE CASE OF THE ASSESSEE IS I N EXCESS OF THE INCOME SHOWN IN THE RETURN ON WHICH THE ASSE SSEE IS LIABLE TO PENALTY ON THE ADDITION OF RS.7,51,200 /. THE MA NO.228/M/10 A.Y:BP 7 CONTENTION OF THE ASSESSEES COUNSEL THAT THE TWO APPELLATE AUTHORITIES TOOK DIVERGENT VIEWS ON THE A DDITION OF RS.7,51,200/- HAS NO MERIT FOR THE REASONS (I) T HE VERY BASIS OF RETRACTION MADE BY THE ASSESSEE WHICH HAS BEEN ACCEPTED BY THE LD. CIT(A) IN QUANTUM APPEAL HAS BE EN REJECTED BY THE TRIBUNAL, AS ABOVE. (II) THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE UNACCOUNTED INC OME CLAIMED BY THE ASSESSEE TO BE HIS OWN ACTUALLY BELO NGED TO THE FIRM (III) EVEN AT THIS STAGE THE ASSESSEE H AS FAILED TO PRODUCE ANY SUPPORTING MATERIAL TO SHOW THAT THE SAID INCOME WAS DISCLOSED AND ASSESSED IN THE HANDS OF T HE FIRM AND (IV) NO CONTRARY MATERIAL WAS PRODUCED TO CONTROVERT THE FINDING OF FACT RECORDED BY THE TRIB UNAL. IN THIS VIEW OF THE MATTER WE ARE OF THE VIEW THAT IT IS A FIT CASE FOR LEVY OF PENALTY U/S.158BFA(2). 7. WE FURTHER FIND THAT THE LD. CIT(A) IN THE CASE OF MR. BASANT V. THAKOOR AT INTERNAL PAGE 4 TO 10 OF THE ORDER HAS R EPRODUCED THE SUBMISSIONS OF THE PARTIES AND THE CORRESPONDING REMARKS AN D OBSERVATIONS OF THE AO WITH REGARD TO THE UNEXPLAINED CASH FOUND RS.1518500/- AND ADDITION OF RS.30.00 LACS ON ACCOUNT OF SALE OF SCRAP AND THE MACHINERY. WE FURTHER FIND THAT THE LD. CIT (A) AFTER CONSIDERING THE ENTIRE MATERIAL AVAILABLE ON RECORD, HOWEVER, SET ASIDE THE ISSUES TO THE FILE OF THE AO TO DECIDE THE SAME DE-N EVO ACCORDING TO LAW AFTER MAKING FURTHER ENQUIRIES AS DIRECTED BY H IM IN PARA-6.5 AND 6.6 OF HIS ORDER (SUPRA). 8. WE FURTHER FIND THAT THE TRIBUNAL IN THE QUANTU M APPEAL VIDE ITS CONSOLIDATED ORDER DATED 31.8.2005 PASSED IN BALCHANDRA B.THAKOOR AND OTHERS INCLUDING THE ASSESSEE VS. DCIT AND VICE-VERSA IN IT(SS)A NO.161 TO 165/MUM/2001 AND C.O. NO.213 TO 217/MUM/2 003 FOR THE MA NO.228/M/10 A.Y:BP 8 BLOCK PERIOD 1.4.1987 TO 15.9.1997 AFTER CONSIDERING T HE MATERIAL AVAILABLE ON RECORD INCLUDING THE SIMILAR SUBMISSIONS OF THE ASSESSEE AND THE OBSERVATION OF THE ASSESSING OFFICER MENTIONED IN THE SAID ORDER OF THE LD. CIT(A) AND THE PLEA TAKEN BY THE P ARTIES IN PARA-7, 8, 9, 10 AND 11 HAS HELD IN PARA 12 OF ITS ORDER AS UNDE R :- 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE SHORT ISSUE IS WHETHER UNACCOUNTED INCOME ADMITTED BY THE INDIVIDUAL PARTNERS AS THEIR OWN INCOME WAS INCOME OF THE FIRM OR NOT. IT IS TRUE THAT ALL THE PARTNERS HAD MADE THEIR INDIVIDUAL STATEMENTS ON OATH U/S 132(4) ADMITTING THE UNACCOUNTED INCOME AS THEIR OWN INCOME. THEY ALSO OFFERED IT FOR TAXATION IN THEIR INDIVIDUAL HANDS. THE ASSESSEE, NAMELY, VASANT B. THAKOOR VOLUNTARILY ADMITTED U/S 132(4) THAT UNACCOUNTED INCOME OF RS. 37,26,,976/- WAS HIS OWN INCOME ON WHICH HE PROMISED TO PAY TAX. HE ALSO PROMISED THAT HE WOULD DECLARE THE AFORESAID INCOME AS HIS UNDISCLOSED INCOME IN THE RETURN FOR THE BLOCK PERIOD. IT IS AFTER THE EXPIRY OF ALMOST 15 MONTHS OF MAKING THE SAID STATEMENT THAT THE ASSESSEE TURNED AROUND TO SAY THAT THE UNACCOUNTED INCOME ADMITTED BY HIM TO BE HIS OWN BELONGED TO THE FIRM AND FILED AN AFFIDAVIT TO SUPPORT HIS RETRACTION. THE RETRACTION MADE BY THE ASSESSEE, IN OUR VIEW, CANNOT BE ACCEPTED FOR SEVERAL REASONS: (I) THERE IS NO EVIDENCE ON RECORD TO PROVE THAT DECLARATION MADE BY THE ASSESSEE U/S.132(4) ON 5.9.1997 WAS FACTUALLY INCORRECT; (II) THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE UNACCOUNTED INCOME CLAIMED BY THE ASSESSEE TO BE HIS OWN BELONGED TO THE FIRM; (III) UNACCOUNTED INCOME CLAIMED BY THE ASSESSEE TO BE HIS OWN HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNT OF THE FIRM; (IV) THERE HAS BEEN INORDINATE DELAY IN FILING THE AFFIDAVIT RETRACTING FROM THE DECLARATION MADE WITHOUT MA NO.228/M/10 A.Y:BP 9 ANY REASONABLE EXPLANATION FOR SUCH DELAY; (V) THE AFFIDAVIT IS NOT SUPPORTED BY ANY EVIDENCE; AND (VI) THE AFFIDAVIT IS A DOCUMENT OF SELF-SERVING NATURE NOT SUPPORTED BY ANY EVIDENCE. IT IS HIT BY THE RATIO LAID DOWN IN DURGA PRASAD MORE 82 ITR 540 (SC). FOR THESE REASONS THE AFFIDAVIT FILED BY THE ASSESSEE WILL NOT HELP THE ASSESSEE TO RESILE FROM THE DECLARATION OF UNACCOUNTED INCOME MADE ON OATH UNDER SECTION 132(4). 9. WE FURTHER FIND THAT IN THE IMPUGNED APPEAL AGAI NST THE LEVY OF PENALTY THE TRIBUNAL HAS AGAIN CONSIDERED THE SAID ORDE R OF THE LD. CIT(A) AND THE TRIBUNAL IN THE QUANTUM APPEAL AND A FTER CONSIDERING THE SAME AT LENGTH HAS PASSED THE ORDER UNDER APPEAL IN CONFIRMING THE LEVY OF PENALTY SUSTAINED BY THE LD. CIT(A). THU S THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL HAS NOT CO NSIDERED PAGE NO.84, 89, 94, 95, 96 AND 98 OF THE ASSESSEES PAPER BOO K WHICH ARE CORRESPONDING TO INTERNAL PAGE NO.1, 6, 11, 12, 13 AN D 15 OF THE ORDER OF THE LD. CIT(A) PASSED IN THE CASE OF SHRI VASANT B. T HAKOOR IS DEVOID OF ANY MERIT. 10. IN HONDA SIEL POWER PRODUCTS LTD. SUPRA, IT HAS BEEN HELD (HEADNOTES): HELD, REVERSING THE DECISION OF THE HIGH COURT, THAT IN ALLOWING THE RECTIFICATION APPLICATION THE TRIBUNAL GAVE A FINDING THAT THE EARLIER DECISION OF A CO-ORDINATE BENCH WAS CITED BEFORE IT BUT THROUGH OVERSIGHT IT HAD MI SSED THE JUDGMENT WHILE DISMISSING THE APPEAL FILED BY T HE ASSESSEE ON THE QUESTION OF ADMISSIBILITY/ALLOWABIL ITY OF MA NO.228/M/10 A.Y:BP 10 THE CLAIM OF THE ASSESSEE FOR ENHANCED DEPRECIATION UNDER SECTION 43A. ONE OF THE IMPORTANT REASONS FOR GIVIN G THE POWER OF RECTIFICATION TO THE TRIBUNAL UNDER SECTIO N 254(2) WAS TO SEE THAT NO PREJUDICE WAS CAUSED TO EITHER O F THE PARTIES APPEARING BEFORE IT. THE RULE OF PRECEDENT WAS AN IMPORTANT ASPECT OF CERTAINTY IN THE RULE OF LAW, A ND PREJUDICE HAD RESULTED TO THE ASSESSEE SINCE THE PRECEDENT HAD NOT BEEN CONSIDERED BY THE TRIBUNAL. THE TRIBUNAL WAS JUSTIFIED IN RECTIFYING THE MISTAKE ON RECORD. 11. IN MOOL CHAND SHYAM LAL (SUPRA) IT HAS BEEN HEL D (HEADNOTES):- HELD, THAT THIS WAS ONE OF THE CASES WHERE THE TRIB UNAL HAD INCORRECTLY RECORDED CERTAIN FACTUAL ASPECT IN ITS ORDER AND UPON AN APPLICATION BEING MADE, IT HAD DELETED SUCH PORTION AND RESTORED THE APPEAL TO ITS FILE TO BE D ECIDED AFRESH. THE TRIBUNAL COULD NOT BE SAID TO HAVE COMM ITTED ANY ILLEGALITY AS THE MISTAKE WAS APPARENT ON THE F ACE OF THE RECORD WHICH FELL WITHIN THE PROVISION OF SECTI ON 254(2). 12. SINCE IN THE CASE BEFORE US THE TRIBUNAL HAS DULY CO NSIDERED THE RELEVANT ORDER OF THE LD. CIT(A) SUPRA, IN ENTIRETY AND HAS EVALUATED THE FACTS AND CIRCUMSTANCES OF THE CASE AND IT IS NOT THE CASE OF THE ASSESSEE THAT THE TRIBUNAL HAS INCORRECTLY RECORDED CERTAIN FACTUAL ASPECTS IN ITS ORDER, WE ARE OF THE VIEW THAT THE DECISIO NS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 13. IN THIS VIEW OF THE MATTER WE ARE OF THE VIEW TH AT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS EVALUATED THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN IT ORIGINALLY DISM ISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE LD . CIT(A) IN MA NO.228/M/10 A.Y:BP 11 SUSTAINING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/ S.158 BFA(2) OF THE ACT. THE ASSESSEE WANTS REVIEW WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THIS VIEW ALSO FINDS SUPPORT FROM THE RECENT DECISION OF HONBLE JURISDICTIONA L HIGH COURT IN CIT VS. EARNEST EXPORTS LTD. (2010) 323 ITR 577 (BOM.) WHEREIN THEIR LORDSHIPS AFTER CONSIDERING THE JUDGMENT IN HONDA SIEL POWER PRODUCTS LTD. (SUPRA), HAS HELD (HEADNOTES): HELD, ALLOWING THE APPEAL, THAT THE TRIBUNAL IN ITS EARLIER ORDER SPECIFICALLY DEALT WITH THE ORDERS OF THE AHM EDABAD AND MUMBAI BENCHES OF THE TRIBUNAL. THE TRIBUNAL HELD THAT THE ORDER OF THE AHMEDABAD BENCH WAS NOT RELEV ANT TO THE ISSUE INVOLVED AND THAT THE ORDER OF THE MUM BAI BENCH CONTAINED NO DIRECT DISCUSSION REGARDING THE NATURE OF A DEPB LICENCE. THE TRIBUNAL HAD EVALUATED THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN IT ORIGINALLY DISMISSED THE APPEAL OF THE ASSESSEE AGAINST THE EX ERCISE OF JURISDICTION U/S.263 BY THE COMMISSIONER. THE ORDER DID NOT FALL WITHIN THE PARAMETERS OF SECTION 254(2 ). THE ORDER WAS NOT VALID. 14. FOR THE REASONS AS DISCUSSED ABOVE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS, THEREFORE, REJECTED. 15. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JUNE, 2010. SD/- SD/- (R.K. PANDA) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 18.6. 2010. JV. MA NO.228/M/10 A.Y:BP 12 COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.