Sh. Alok Agarwal, Aligarh V. I.T.O., Ward-4, Aligarh

MA 23/AGR/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9889 (ITAT-AGRA)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-02-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 22-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Gift; Rectification of order; Additional evidence; Question of law; Reasonable cause
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO.23/AGR/2012 (IN ITA NO.39/AGR/2011) ASSESSMENT YEAR: 2006-07 SHRI ALOK AGARWAL, VS. INCOME TAX OFFICER, PROP. S.S. INTERNATIONAL, WARD-4, ALIGARH. 3/219, MARRIS ROAD, ALIGARH (PAN : ACEPA 6229 R). (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 22.02.2013 DATE OF PRONOUNCEMENT : 28.02.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION (M.A.) HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER OF THIS TRIBUNAL DATED 04.04.2012 PASSED IN ITA NO.39/AGR/2011. 2. THE ASSESSEE HAS FILED ADJOURNMENT APPLICATION W HICH WAS REJECTED BECAUSE ON THE FIRST DATE OF HEARING ON 18.01.2013 IT WAS C LEARLY DIRECTED THAT NO FURTHER ADJOURNMENT SHALL BE GRANTED ON ANY REASON. ON APP LICATION DATED 17.01.2013, IT 2 M.A. NO.23/AGR/2012 HAS BEEN STATED BY THE ASSESSEE THAT HIS UNCLE HAS EXPIRED AND UTHAWANI IS EXPECTED TOMORROW I.E. ON 18.01.2013 AND ON THAT GROUND THE ASSESSEE SOUGHT ADJOURNMENT. ON THE DATE OF HEARING DATED 14.01.2013 THE ASSESSE E SOUGHT ADJOURNMENT ON THE GROUND THAT THE ASSESSEE WAS SERIOUSLY ILL AND, THE REFORE, COULD NOT ATTEND THE HEARING. HOWEVER, THE CASE WAS ADJOURNED TO 18.01. 2013 WITH LAST OPPORTUNITY OF HEARING. THUS, ON PERUSAL OF ORDER SHEET, IT REVEA LS THAT THE ASSESSEE IS SEEKING ADJOURNMENTS OF HEARING FOR ONE OR OTHER REASONS. SINCE ON EARLIER DATE OF HEARING I.E. 18.01.2013 THE CASE WAS ADJOURNED WITH DIRECTI ON THAT NO FURTHER ADJOURNMENT WILL BE GRANTED ON ANY REASON, UNDER THE CIRCUMSTAN CES, THE ADJOURNMENT APPLICATION FOR THE HEARING DATED 22.02.2013 IS REJ ECTED AND WE PROCEED TO DECIDE THE MISCELLANEOUS APPLICATION ON MERIT. 3. THE LD. DEPARTMENTAL REPREHENSIVE SUBMITTED THAT THE ASSESSEE WANTS TO REVIEW THE EARLIER ORDER FOR WHICH THE I.T.A.T. HAS NO POWER UNDER SECTION 254(2) OF THE INCOME TAX AC, 1961. THE LD. DEPARTMENTAL R EPREHENSIVE IN SUPPORT OF HIS CONTENTION RELIED UPON A JUDGMENT OF HONBLE AP EX COURT IN THE CASE OF T.S. BALRAM, ITO VS. VOLKART BROTHERS & OTHERS, 82 ITR 5 0 (SC). 4. THE ASSESSEE IN ITS M.A. HAS STATED THAT THE I. T.A.T. HAS REFERRED THE DECISION OF HONBLE APEX COURT IN 291 ITR 278. THE OBSERVATION OF THE I.T.A.T. 3 M.A. NO.23/AGR/2012 THAT THE AMOUNT OF RS.15,40,000/- IS NOT EXPLAINED IS CONTRARY TO THE FACTS AND EVIDENCES ON RECORD ON WHICH THE I.T.A.T. HAS RELIE D UPON. THE FACTS OF THE CASE OF 291 ITR 278 ARE ALSO NOT IDENTICAL TO THE FACTS OF THE ASSESSEES CASE. THAT RELYING UPON THE INCORRECT FACTS NOT BORN OUT FROM THE RECO RD AND RELYING UPON THE DECISION OF WHICH THE FACTS ARE NOT IDENTICAL TO WITH THE CA SE OF THE ASSESSEE ARE MISTAKES APPARENT FROM RECORD WITHIN THE MEANING OF 254(2) O F THE ACT. THAT WHILE DECIDING THE APPEAL, THE I.T.A.T. HAS OBSERVED AT PAGE NO.22 & 23 OF THE ORDER THAT THE AMOUNT OF GIFT AT RS.15,40,000/- IS NOT EXPLAINED W ITH REFERENCE TO THE EVIDENCES AND DOCUMENTS FILED BEFORE THE AUTHORITIES BELOW WI THIN THE MEANING OF SECTION 68, WHILE THE AMOUNT OF GIFT HAS DULY BEEN EXPLAINED WI TH REFERENCE TO DOCUMENTS/ARGUMENTS FORWARDED BEFORE THE I.T.A.T. A THE TIME OF HEARING, WHICH HAVE ESCAPED THE ATTENTION OF THE BENCH. ESCAPING THE ATTENTION OF THE CORRECT FACTS AMOUNTS TO MISTAKE APPARENT FROM RECORD. 5. ON PERUSAL OF RECORD, WE FIND THAT THE ASSESSEE HAS RAISED AS MANY AS FOUR GROUNDS IN HIS APPEAL ITA NO.39/AGR/2011 FOR THE A. Y. 2006-07 WHICH WAS PERTAINING TO ADDITION OF RS.15,40,000/- MADE UNDER SECTION 68 OF THE ACT IN RESPECT OF GIFT RECEIVED FROM SMT. ANJALI CONSUL. DURING THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THERE WAS CREDIT ENTRY OF RS.15,40,000/- IN CAPITAL ACCOUNT. SINCE THE ASSESSEE HAS FAILED TO PROVE THE CREDITWORTHINESS OF THE 4 M.A. NO.23/AGR/2012 AMOUNT OF RS.15,40,000/-, THE A.O. MADE THE ADDITIO N UNDER SECTION 68 OF THE ACT. BEFORE THE CIT(A), IT WAS CLAIMED BY THE ASSESSEE T HAT HE AMOUNT CREDITED IN THE CAPITAL ACCOUNT WAS THE AMOUNT OF GIFT RECEIVED FRO M REAL SISTER SMT. ANJALI CONSUL WHO IS RESIDENT OF SINGAPORE. THE CIT(A) CONFIRMED THE ORDER OF THE A.O. AFTER HEARING THE LD. REPRESENTATIVES OF THE PARTIES, THE I.T.A.T. HAS HELD AS UNDER :- (PARAGRAPH NOS.11 TO 11.8, PAGE NOS.10 TO 27 OF ITA T ORDER) 11. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE P ARTIES AND RECORDS PERUSED. IN THE CASE UNDER CONSIDERATION THE ISSUE IS IN RESPECT OF GIFT OF RS.15,40,000/- FROM YOUNGER SISTER OF THE ASSESSEE. TO EXAMINE THE ISSUE LET US SEE WHAT IS MEANING OF THE GIFT. THE ORDINARY M EANING OF THE GIFT IS A TRANSFER BY ONE PERSON TO ANOTHER OF ANY EXISTING M OVABLE OR IMMOVABLE PROPERTY MADE VOLUNTARILY OR WITHOUT CONSIDERATION OF MONEY OR MONEY WORTH. IN LEGAL EFFECT, THERE CANNOT BE A GIFT WI THOUT A GIVING AND TAKING. THE GIVING AND TAKING ARE THE TWO CONTEMPORANEOUS R ECIPROCAL ACTS WHICH CONSTITUTE A GIFT. IN ORDER TO MAKE A VALID GIFT, THERE MUST BE PERFECT KNOWLEDGE IN THE MIND OF THE PERSON MAKING THE GIFT OF THE EXTENT OF THE BENEFICIAL INTEREST INTENDED TO BE CONFERRED, AND O F WHICH MAKING IT. DONOR GIVES GIFT IN MONEY OR MONEYS WORTH AND TAKING LOV E AND AFFECTION FROM DONEE. TO EXAMINE THE ISSUE FROM POINT OF VIEW OF T HE PROVISIONS OF INCOME TAX ACT WE ARE TO SEE THE NATURE OF THE TRANSACTION . GIFT, ITS NATURE IS CREDIT IN THE HANDS OF THE DONEE BECAUSE DONEE CREDITED GI FT AMOUNT HIS/HER CAPITAL ACCOUNT AND BEING TREATED AS OWN MONEY/CAPITAL. NOR MALLY SUCH CREDIT ENTRY IN CAPITAL ACCOUNT CAN BE MADE ONLY OF THE TRANSITI ON WHICH HAS BEEN PROCESSED THROUGH THE PROVISIONS OF THE INCOME TAX ACT. IT APPEARS FROM READING OF SECTION 68 OF THE ACT THAT WHENEVER A SU M IS FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE THEN, IRRESPECTIVE OF THE COLOUR OR THE NATURE OF THE SUM RECEIVED WHICH IS SOUGHT TO BE GI VEN BY THE ASSESSEE, THE INCOME-TAX OFFICER HAS THE JURISDICTION TO ENQUIRE FROM THE ASSESSEE THE NATURE AND SOURCE OF THE SAID AMOUNT. WHEN AN EXPL ANATION IN REGARD THERETO IS GIVEN BY THE ASSESSEE THEN, IT IS FOR TH E INCOME-TAX OFFICER TO BE SATISFIED WHETHER THE SAID EXPLANATION IS CORRECT O R NOT. IT IS IN THIS REGARD THAT ENQUIRIES ARE USUALLY MADE IN ORDER TO FIND O UT AS TO WHETHER, FIRSTLY THE PERSONS FROM WHOM MONEY IS ALLEGED TO HAVE BEEN RE CEIVED ACTUALLY EXISTED 5 M.A. NO.23/AGR/2012 OR NOT. SECONDLY DEPENDING UPON THE FACTS OF EACH CASE, THE INCOME-TAX OFFICER MAY EVEN BE JUSTIFIED IN TRYING TO ASCERTAI N THE SOURCE OF THE DEPOSITOR, ASSUMING HE IS IDENTIFIED, IN ORDER TO D ETERMINE WHETHER THAT DEPOSITOR IS A MERE NAME LENDER OR NOT. BE THAT AS IT MAY, IT IS CLEAR THAT THE INCOME-TAX OFFICER HAS JURISDICTION TO MAKE ENQUIRI ES WITH REGARD TO THE NATURE AND SOURCE OF A SUM CREDITED IN THE BOOKS OF ACCOUNT OF AN ASSESSEE AND IT WOULD BE IMMATERIAL AS TO WHETHER THE AMOUNT SO CREDITED IS GIVEN THE COLOUR OF A LOAN OR A SUM REPRESENTING THE SALE PRO CEEDS OR EVEN RECEIPT OF GIFT. THE USE OF THE WORDS ANY SUM FOUND CREDITED IN THE BOOKS IN SECTION 68 INDICATES THAT THE SAID SECTION IS VERY WIDELY W ORDED AND AN INCOME-TAX OFFICER IS NOT PRECLUDED FROM MAKING AN ENQUIRY AS TO THE TRUE NATURE AND SOURCE THEREOF EVEN IF THE SAME IS CREDITED AS GIFT . WHAT IS CLEAR, HOWEVER, IS THAT SECTION 68 CLEARLY PERMITS AN INCOME-TAX OFFIC ER TO MAKE ENQUIRIES WITH REGARD TO THE NATURE AND SOURCE OF ANY OR ALL THE S UMS CREDITED IN THE BOOKS OF ACCOUNT OF THE COMPANY IRRESPECTIVE OF THE NOMEN CLATURE OR THE SOURCE INDICATED BY THE ASSESSEE. IN OTHER WORDS, THE TRUT HFULNESS OF THE ASSERTION OF THE ASSESSEE REGARDING THE NATURE AND THE SOURCE OF THE CREDIT IN ITS BOOKS OF ACCOUNT CAN BE GONE INTO BY THE INCOME-TAX OFFICER. THERE IS NO QUARREL WITH THE PROPOSITION THAT A MERE IDENTIFICATION OF THE D ONOR AND SHOWING THE MOVEMENT OF THE GIFT AMOUNT THROUGH BANKING CHANNEL S IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT AND SINCE THE CLA IM OF A GIFT IS MADE BY THE ASSESSEE THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE DONOR BUT HIS CAPACITY TO MAKE SUCH A GIFT. THE ASSESSEE IS REQUIRED TO PROVE THREE IMPORTANT CONDITIONS, NAMELY, (I) THE IDENTITY OF T HE CREDITOR, (II) THE CAPACITY OF THE CREDITOR TO ADVANCE THE MONEY, AND (III) THE GENUINENESS OF THE TRANSACTION. WHAT EVIDENCE WOULD BE SUFFICIENT TO E STABLISH THE SAID CONDITIONS OR WHAT MATERIAL WOULD BE RELEVANT IN A PARTICULAR CASE, WOULD DEPEND ON THE FACTS OF EACH CASE. THERE CANNOT BE ONE GENERAL GUIDING YARDSTICK IN THE MATTER. 11.1 THE ASSESSEE HAS FURNISHED SOME MATERIAL/ EVIDENCE LIKE BANK ACCOUNT, COPY OF PASSPORT, GIFT LETTER AND OTHERS, TO APPRECIATE THOSE MATERIAL/EVIDENCES WE WOULD LIKE REFER ONE OF THE J UDGMENT OF THE APEX COURT IN THE CASE OF CIT V DURGA PRASAD MORE 82 ITR 540 (SC) WHEREIN THE COURT HELD THAT SCIENCE HAS NOT YET INVENTED ANY IN STRUMENT TO TEST THE RELIABILITY OF THE EVIDENCE PLACED BEFORE A COURT O R TRIBUNAL. THEREFORE, THE COURTS AND TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEF ORE THEM BY APPLYING THE TEST OF HUMAN PROBABILITIES. IT HAS BEEN FURTHER H ELD AS UNDER:- 6 M.A. NO.23/AGR/2012 IT IS TRUE THAT AN APPARENT MUST BE CONSIDERED REA L UNTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL. IN A CASE OF THE PRESENT KIND A PARTY WHO RELIES ON A RECITAL IN A DEED HAS TO ESTABLISH THE TRUTH OF T HOSE RECITALS, OTHERWISE IT WILL BE VERY EASY TO MAKE SELF-SERVING STATEMENTS IN DOCUMENTS EITHER EXECUTED OR TAKEN BY A PARTY AND R ELY ON THOSE RECITALS. IF ALL THAT AN ASSESSEE WHO WANTS TO EVAD E TAX IS TO HAVE SOME RECITALS MADE IN A DOCUMENT EITHER EXECUT ED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEF T WIDE OPEN TO EVADE TAX. A LITTLE PROBING WAS SUFFICIENT IN THE P RESENT CASE TO SHOW THAT THE APPARENT WAS NOT THE REAL. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM. THEY WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE IN THOSE DOCUMENTS. 11.2 THE APEX COURT IN THE CASE OF COMMISSIONER O F INCOME-TAX V. P MOHANAKALA 291 ITR 278 (SC) HAS LAID DOWN CERTAIN G UIDELINES IN RESPECT OF THE GENUINENESS OF A GIFT. IN THIS CASE FOLLOWI NG QUESTIONS HAVE BEEN ANSWERED BY THE HIGH COURT IN FAVOR OF THE ASSESSEE AND AGAINST THE REVENUE: (A) WHETHER, IN THE FACTS AND CIRCUMSTANCES, THE INCOME-TAX APPELLATE TRIBUNAL WAS CORRECT IN LAW TO ACCEPT THE PRINCIPLE OF PREPONDERANCE OF PROBABILITIES IN HOLDING THAT THE CLAIM OF THE A PPELLANT THAT THE SUM OF RS. 15,62,500 RECEIVED HIM BY WAY OF GIFTS THROU GH NORMAL BANKING CHANNELS WAS NOT GENUINE AND THAT IT WAS LIABLE TO BE ASSESSED UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 ? (B) WHETHER, IN THE LIGHT OF THE LAW ESTABLISHED AND BASED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED INCOM E-TAX APPELLANT TRIBUNAL IS LEGALLY JUSTIFIED IN CONCLUDING THAT BU RDEN OF PROOF CAST ON THE APPELLANT UNDER SECTION 68 OF THE INCOME-TAX AC T, 1961 HAS NOT BEEN DISCHARGED AND THE INGREDIENTS FOR INVOKING SE CTION 68 OF THE INCOME-TAX ACT ARE PRESENT? (C) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CONCLUSION OF THE TRIBUNAL THAT THE CLAIM OF GIFT IS NOT GENUINE IS REA SONABLE AND BASED ON RELEVANT MATERIAL AND NOT PERVERSE ? 7 M.A. NO.23/AGR/2012 11.3 THE DISPUTE IN ALL THESE APPEALS RELATES TO TH E ADDITION MADE BY THE ASSESSING OFFICER IN RESPECT OF SEVERAL FOREIGN GIF TS STATED TO HAVE BEEN RECEIVED BY THE ASSESSEES FROM ONE COMMON DONOR NAM ELY SAMPATH KUMAR. THE GIFTS RECEIVED WERE FROM ONE ARIAVAN THOTAN AND SUPROTOMAN. IT IS DURING THE ENQUIRY BY THE REVENUE IT IS ASSERTED TH AT THEY WERE THE ALIASES OF SAMPATHKUMAR. THESE GIFTS WERE MADE TO A. SRINIVASA N AND HIS WIFE, SMT. S. KALAVATHY, HIS SON, S. BALAJI MANIKANDAN AND TO ONE OF HIS BROTHERS, RAJENDRAN AND SMT. MOHANAKALA.IN ALL THE AGGREGATE GIFTS RECEIVED BY THE ASSESSEES IS TO THE EXTENT OF RS.1,79,27,703. THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION OFFERED BY THE RESPECTIVE AS SESSEES THAT THE AMOUNT OF CREDIT IS A GIFT FROM NRI AND PROCEEDED TO ADD IT A S THE INCOME OF THE ASSESSEES FROM UNDISCLOSED SOURCES. THE CREDIT ENTR IES HAVE BEEN MADE DURING THE PERIOD FROM JULY 8, 1992 TO OCTOBER 19, 1995. THERE IS NO DISPUTE THAT THE PAYMENTS WERE MADE BY INSTRUMENTS ISSUED B Y A FOREIGN BANK AND CREDITED INTO THE RESPECTIVE ASSESSEES ACCOUNT BY NEGOTIATION THROUGH A BANK IN INDIA. MOST OF THE CHEQUES SENT FROM ABROAD WERE DRAWN ON CITIBANK, N.A. SINGAPORE. THE ASSESSING OFFICER DEA LT WITH THE CONTROVERSY AS REGARDS THE CASH CREDIT ENTRIES RECEIVED FROM TH E FOREIGN DONOR. HE NOTICED THAT THE GIFTS HAVE BEEN SENT IN THE NAME O F ARIAVAN THOTTAN AND RECEIVED BY A. SRIN IVASAN AND OTHERS WHO ARE ALL H IS FAMILY MEMBERS. EACH ONE OF THEM IS AN INDIVIDUAL ASSESSEE. ALL THE ASSE SSEES WERE SUMMONED AND THEIR STATEMENTS HAVE BEEN RECORDED BY THE ASSESSIN G OFFICER. SRINIVASAN WHO IS THE KEY PERSON IN HIS STATEMENT SAID THAT HE KNEW SAMPATHKUMAR FOR THE LAST 20 YEARS AND HE HAD BEEN HELPING SAMPATHKU MAR PRIOR TO 1985 BY PAYING RS. 100 TO 200 EVERY MONTH AS HE HAD NO SOUR CE OF INCOME TO GET HIMSELF EDUCATED. SAMPATHKUMAR IN HIS OWN STATEMENT STATED THAT HE WAS IN INDONESIA UP TO THE YEAR 1992 AND EMPLOYED AS AN EN GINEER. THEREAFTER, HE SHIFTED TO ENGLAND AND STARTED CONSULTANCY PROFESSI ON THERE. LATER IN THE END OF THE YEAR 1994-95, HE JOINED NEW CENTURY MACHINE RY LTD., CHESHIRE, SK 16 4XS AND BECAME ITS DIRECTOR IN 1996. IT IS IN H IS STATEMENT THAT HE IS PAYING TAXES IN ENGLAND FROM HIS INCOME EARNED IN E NGLAND. AS FAR AS HIS INDIAN INCOME IS CONCERNED, HE STATED THAT HE FILED THE RETURNS FOR THE ASSESSMENT YEARS 1996-97 AND 1997-98 BEFORE THE INC OME-TAX OFFICER, WARD 1(4), CBE ONLY ON OCTOBER 23, 1997. HIS INVESTMENT IN INDIAN COMPANIES ACCORDING TO HIM WILL BE AROUND RS. 5 CRORES AND MA DE OUT OF HIS INCOME EARNED IN THE FOREIGN COUNTRIES. HE DID NOT REVEAL THE DETAILS OF HIS BANK ACCOUNT IN INDIA AND STATED THAT HE WOULD BE SUBMIT TING THE DETAILS THROUGH HIS AUDITOR WHICH HE DID NOT. EXCEPT THE SELF SERVI NG STATEMENT THERE IS NO MATERIAL EVIDENCE AS REGARDS HIS FINANCIAL STATUS. HE STATED FROM 1972-73 HE KNEW SRINIVASAN, RAJENDRAN AND THEIR FAMILIES. HIS FATHER WAS A TAXI DRIVER, 8 M.A. NO.23/AGR/2012 AND WAS VERY POOR. SRINIVASAN AND HIS FAMILY MEMBER S WERE SUPPORTING HIM WHEN HE WAS IN INDIA. TO A POINTED QUERY AS TO WHET HER THERE IS ANY EVIDENCE TO SHOW THAT HE WAS ALSO KNOWN BY ANY OTH ER NAME OTHER THAN SAMPATHKUMAR, HE STATED THAT NO EVIDENCE. ONLY MR. SRINIVASAN USED TO CALL ME AS SUPROTOMAN. 11.4 THE ASSESSING OFFICER IN THE CIRCUMSTANCES CAM E TO THE CONCLUSION THAT THE GIFTS THOUGH APPARENT ARE NOT REAL AND ACC ORDINGLY TREATED ALL THOSE AMOUNTS CREDITED IN THE BOOKS OF THE ASSESSEE AS TH E INCOME OF THE ASSESSEE. ON APPEAL THE COMMISSIONER OF INCOME-TAX CONCLUDED THAT THE STORY SET UP BY THE ASSESSEE IS UNACCEPTABLE AND HARD TO BELIEVE AND THE PREPONDERANCE OF PROBABILITIES, THE COMMON COURSE OF HUMAN LIVING S POINT TO THE CONTRARY. THE APPEALS WERE ACCORDINGLY DISMISSED. THE ITAT C ONCURRED WITH THE FINDINGS AND CONCLUSIONS ARRIVED AT BY THE ASSESSIN G OFFICER AND THE COMMISSIONER OF INCOME-TAX. THE TRIBUNAL NOTICED TH AT THE LETTERS EXCHANGED BY THE PER- SON WHO HAD SENT FOREIGN EXC HANGE TO THE ASSESSEE ONLY INDICATE THAT THERE IS NO LOVE AND AFFECTION B ETWEEN THEM AND THAT HE IS CLEARLY MATERIALISTIC AND HIS STATEMENT OF ACCEPTIN G A RECIPROCATION IS ALSO AN INDICATION TO THE FACT THAT HE IS NOT DOING ANYT HING FREE BUT CLEARLY THE COMPENSATION WAS A ROUNDABOUT MANNER OF SHOWING OF HE HAVING BEEN COMPENSATED EITHER IN INDIA OR ABROAD. THE TRIBUNA L ALSO TOOK NOTE OF THE VARIOUS OTHER ATTENDING CIRCUMSTANCES AND FOUND IT DIFFICULT TO ACCEPT THE EXPLANATION OFFERED BY THE ASSESSEE. THE HIGH COUR T CAME TO THE CONCLUSION THAT THE REASONS ASSIGNED BY THE TRIBUNAL AND OTHER AUTHORITIES ARE IN THE REALM OF SURMISES, CONJECTURES AND SUSPICIONS . . . THE AUTHORITIES UNDER THE ACT HAVE FAILED TO DRAW THE ONLY CONCLUSION THAT IS POSSIBLE LEGALLY AND LOGICALLY. 11.5 THE APEX COURT HELD AS UNDER :- EXPLANATION OFFERED WAS NOT SATISFACTORY. THE ASSE SSEES DID NOT TAKE THE PLEA THAT EVEN IF THE EXPLANATION IS NOT ACCEPTABLE THE MATERIAL AND ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD DO NOT JUSTIFY THE SUM FOUND CREDITED IN THE BOOKS TO BE TREATED AS A RECEIPT OF AN INCOME NATURE. THE BU RDEN IN THIS REGARD WAS ON THE ASSESSEES. NO SUCH ATTEMPT HAS BE EN MADE BEFORE ANY AUTHORITY. ALL THE DECISIONS CITED AND R EFERRED TO 9 M.A. NO.23/AGR/2012 HEREINABOVE ARE REQUIRED TO BE APPRECIATED AND UNDE RSTOOD IN THE LIGHT OF THE LAW DECLARED BY THIS COURT IN SUMA TI DAYAL [1995] SUPP 2 SCC 453. WHETHER THE HIGH COURT WAS JUSTIFIED IN INTERFERIN G WITH THE CONCURRENT FINDING OF FACT ARRIVED AT BY ALL TH E AUTHORITIES INCLUDING THE TRIBUNAL? THE ASSESSING OFFICER FOUND THAT ALL THE SO-CALLED GIFTS CAME FROM ARIAVAN THOTAN AND SUPROT OMAN. THE ASSESSEES DID NOT DECLARE THAT THEY ARE THE ALIASES OF SAMPATHKUMAR. IT IS ONLY AN AFTERTHOUGHT THEY HAVE COME FORWARD WITH THE SAID PLEA. THE ASSESSING OFFICER A LSO FOUND THAT THE GIFTS WERE NOT REAL IN NATURE. VARIOUS SUR ROUNDINGS CIRCUMSTANCES HAVE BEEN RELIED UPON BY THE ASSESSIN G OFFICER TO REJECT THE EXPLANATION OFFERED BY THE ASSESSEES. THE COMMISSIONER OF APPEALS CONFIRMED THE FINDINGS AND CONCLUSION DRAWN BY THE ASSESSING OFFICER. THE TRIB UNAL SPEAKING THOUGH ITS SENIOR VICE PRESIDENT CONCURRED WITH THE FINDINGS OF FACT. THE FINDINGS IN OUR CONSIDERED OP INION ARE BASED ON THE MATERIAL AVAILABLE ON RECORD AND NOT O N ANY CONJECTURES AND SURMISES. THEY ARE NOT IMAGINARY AS SOUGHT TO BE CONTENDED. RELYING ON THE DECISIONS OF THIS COURT IN BEJOY GOP AL MUKHERJI V. PRATUL CHANDRA GHOSE, AIR 1953 SC 153 AND ORIENT DISTRIBUTORS V. BANK OF INDIA LTD. AIR 1979 SC 867, SHRI IYER, LEARNED SENIOR COUNSEL CONTENDED THAT TH E ISSUE RELATING TO THE PROPRIETY OF THE LEGAL CONCLUSION T HAT COULD BE DRAWN ON THE BASIS OF PROVED FACTS GIVES RISE TO A QUESTION OF LAW AND, THEREFORE, THE HIGH COURT IS JUSTIFIED IN INTERFERING IN THE MATTER SINCE THE AUTHORITIES BELOW FAILED TO D RAW A PROPER AND LOGICAL INFERENCE FROM THE PROVED FACTS. WE AR E UNABLE TO PERSUADE OURSELVES TO ACCEPT THE SUBMISSION. THE FI NDINGS OF FACT ARRIVED AT BY THE AUTHORITIES BELOW ARE BASED ON PROPER APPRECIATION OF THE FACTS AND THE MATERIAL AVAILABL E ON RECORD AND SURROUNDING CIRCUMSTANCES. THE DOUBTFUL NATURE OF THE TRANSACTION AND THE MANNER IN WHICH THE SUMS WERE FOUND CREDITED IN THE BOOKS OF ACCOUNTS MAINTAINED BY TH E ASSESSEE HAVE BEEN DULY TAKEN INTO CONSIDERATION BY THE AUTH ORITIES BELOW. THE TRANSACTIONS THOUGH APPARENT WERE HELD T O BE NOT REAL ONES. MAY BE THE MONEY CAME BY WAY OF BANK CH EQUES AND 10 M.A. NO.23/AGR/2012 WAS PAID THROUGH THE PROCESS OF BANKING TRANSACTION BUT THAT ITSELF IS OF NO CONSEQUENCE. NO QUESTION OF LAW MUCH LESS ANY SUBSTANTIAL QUEST ION OF LAW HAD ARISEN FOR CONSIDERATION OF THE HIGH COURT. THE HIGH COURT MISDIRECTED ITSELF AND COMMITTED AN ERROR IN DISTURBING THE CONCURRENT FINDINGS OF FACT. 11.6 DELHI HIGH COURT IN THE CASE OF RAJEEV TANDON VS. ACIT, 294 ITR 488 (DELHI) HELD AS UNDER :- HAVING HEARD LEARNED COUNSEL FOR THE ASSESSEE, WE FIND THAT THE TRIBUNAL CONSIDERED THE ENTIRE CASE LAW ON THE SUBJECT INCLUDING SEVERAL DECISIONS OF THE SUPREME COURT AN D THIS COURT. REFERENCE HAS BEEN MADE TO CIT V. DURGA PRA SAD MORE [1971] 82 ITR 540, WHEREIN THE SUPREME COURT OBSERV ED THAT THE TAXING AUTHORITIES WERE ENTITLED TO LOOK INTO T HE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REAL AND FACTUAL POSI TION. SIMILARLY, THIS COURT IN SAJAN DASS AND SONS V. CIT [2003] 264 ITR 435 TOOK THE VIEW THAT NOT ONLY MUST THE ASSESS EE ESTABLISH THE IDENTITY OF THE DONOR AND HIS CAPACITY TO MAKE THE GIFT, BUT HE MUST ALSO ESTABLISH THAT THE AMOUNT RECEIVED BY HIM WAS IN FACT A GIFT. WE MAY NOTE THAT VERY RECENTLY, THE SUPREME COURT D EALT WITH A SOMEWHAT SIMILAR SITUATION IN CIT V. P. MOHA NAKALA [2007] 291 ITR 278. WHILE DEALING WITH SECTION 68 OF THE ACT, THE SUPREME COURT HELD THAT : (I) THERE HAS TO BE A CREDIT OF THE AMOUNT IN THE B OOKS MAINTAINED BY THE ASSESSEE. (II) SUCH CREDIT HAS TO BE OF A SUM DURING THE PREV IOUS YEAR. (III) THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH CREDIT FOUND IN THE BOOKS, OR IF THE ASSESSEE OFFERS AN EXPLANATION THEN, IN THE OPINION OF THE A SSESSING OFFICER, IT IS NOT SATISFACTORY. 11 M.A. NO.23/AGR/2012 IT IS ONLY THEN THAT THE SUM SO CREDITED MAY BE CHA RGED TO INCOME-TAX AS THE INCOME OF AN ASSESSEE. THE SUPREME COURT CONSIDERED THE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION AND OBSERVED THAT W HAT IT MEANS IS THAT THE ASSESSEE OFFERS NO PROPER, REASON ABLE AND ACCEPTABLE EXPLANATION IN THE OPINION OF THE ASSESS ING OFFICER, FORMED OBJECTIVELY WITH REFERENCE TO THE MATERIAL A VAILABLE ON RECORD. 11.7 PUNJAB& HARYANA HIGH COURT IN THE CASE OF YASH PAL GOEL V. CIT(A), 310 ITR 75 (P&H) UNDER THE CIRCUMSTANCES HE LD THAT GIFT TRANSACTION WAS NOT GENUINE. THE COURT ALSO OBSERV ED AS UNDER:- THE SO-CALLED GIFT SET UP BY THE APPELLANT WAS NOT BONA FIDE TRANSACTION. THE UNSCRUPULOUS USE EVERY GIMMI CK TO AVOID PAYING INCOME-TAX. IF THE STATE EXCHEQUER IS MADE THE TARGET OF DECEIT AND THE REVENUE COMES DOWN, THE DEVELOPMENT OF THE COUNTRY WILL BE A CASUALTY. IT IS REPREHENSIBLE TH AT SAME CITIZENS SPEND ON LITIGATION AND UNNECESSARILY BRIN G MATTERS BEFORE COURTS THAN TO PAY TAX ON THEIR INCOME. THE TENDENCY NEEDS TO BE DISCOURAGED AND CURBED. THIS COURT IS CONSTRAINED TO FEEL THAT THE DEPARTMENT OF INCOME-TAX HAS UNNEC ESSARILY BEEN DRAGGED IN THIS LITIGATION AND THE TIME OF THE COURT HAS ALSO BEEN WASTED. THEREFORE, RS.30,000/- IS IMPOSE D AS COSTS ON THE APPELLANT. THE AMOUNT SHALL BE DEPOSITED BY THE APPELLANT WITHIN 45 DAYS FROM TODAY FAILING WHICH T HE INCOME- TAX AUTHORITIES SHALL RECOVER IT FROM HIM AS ARREAR S OF INCOME- TAX. 11.8 IN THE LIGHT OF ABOVE LAW LAID DOWN BY T HE APEX COURT IN THE CASE OF CIT V DURGA PRASAD MORE 82 ITR 540 (SC), IN THE CAS E OF COMMISSIONER OF INCOME-TAX V. P MOHANAKALA 291 ITR 278 (SC) AND OT HER DECISIONS AS DISCUSSED ABOVE IF WE CONSIDER THE FACTS OF THE CAS E UNDER CONSIDERATION AND THE SURROUNDING CIRCUMSTANCES, PREVAILING PRACTICE/ CUSTOMS IN THE SOCIETY, WE FIND THAT IN THE CASE UNDER CONSIDERATION CLAIM OF THE ASSESSEE TO RECEIVE GIFT FROM YOUNGER SISTER WHICH IS AGAINST WHOLE PHI LOSOPHY, TRADITION AND RECOGNIZED SOCIAL CUSTOM AND RELIGIOUS. IN INDIA IT IS OLD AGE ACCEPTED FACT THAT ELDER BROTHER NEVER TAKES ANYTHING FROM HIS YO UNGER SISTER, EVEN 12 M.A. NO.23/AGR/2012 DRINKING WATER FROM HIS YOUNGER SISTER. RELATION OF BROTHER AND SISTER IS HOLLY RELATION AND BROTHER IS ALWAYS PROTECTING SIS TER AN ALL ASPECT OF THE MATTER INCLUDING FINANCIAL MATTER BUT GIFT FROM YOU NGER SISTER IS AN UNUSUAL CIRCUMSTANCES WHICH IS UNBELIEVABLE. IT MAY BE AN O LD CUSTOMS BUT THIS CONCEPT HAS TO TAKE INTO CONSIDERATION FOR PEACEFUL , AND GRACE FULL RUNNING OF A CIVIL SOCIETY AND IF SOME HAS TRIED TO DEMOLISH S UCH ACCEPTED SOCIAL CUSTOM SUCH ACTION IS REQUIRED TO QUASH AT THE FIRST SAGE ITSELF, OTHERWISE EXISTENCE OF CIVIL SOCIETY ITSELF WILL BE IN DANGER. A CONSENT O F SUCH ACTION OF A PERSON CANNOT BE GIVEN WHILE RECORDING FACTS OF THE CASE F OR THE PURPOSE OF EVEN IN INCOME TAX PROCEEDING. THE CONTENTION OF THE LD. AUTHORISED REPRESENTATIVE WAS THAT THE ASSESSEE HAS FURNISHED NECESSARY EXPLA NATION AND EVIDENCE BEFORE THE ASSESSING OFFICER, CONTRARY TO THAT, THE ASSESSING OFFICER NOTED IN HIS ORDER THAT NO EVIDENCE WAS FURNISHED. THE CIT( A) SURPRISED TO NOTE THAT EVEN SUCH A SIMPLE EXPLANATION THAT THE AMOUNT WAS GIFTED BY THE ASSESSEES SISTER WAS NOT POINTED OUT TO THE ASSESSING OFFICER NOR SUCH EXPLANATION WAS FURNISHED BEFORE THE ASSESSING OFFICER. RULE 10 OF ITAT RULES PROVIDES THAT WHERE A FACT WHICH CANNOT BE BORNE OUT BY, OR IS CO NTRARY TO, THE RECORD IS ALLEGED, IT SHALL BE STATED CLEARLY AND CONCISELY A ND SUPPORTED BY A DULY SWORN AFFIDAVIT. THE ASSESSEE DID NOT FILE SUCH SW ORN AFFIDAVIT STATING THAT THE ASSESSING OFFICER HAS RECORDED CONTRARY FACTS I N HIS ORDER. NOT ONLY THIS, BUT IT IS ALSO FACT THAT THE ASSESSEE FAILED TO FUR NISH ANY EVIDENCE TO SUPPORT THAT THESE DOCUMENTS WERE FILED BEFORE THE ASSESSIN G OFFICER. HOWEVER, IN THE INTEREST OF JUSTICE, WHATEVER PAPERS WERE FILED IN PAPER BOOK AND POINTED OUT BY THE LD. AUTHORISED REPRESENTATIVE, IF WE CON SIDER IT ON MERIT, ON PERUSAL OF COPY OF STATEMENT OF SYNDICATE BANK ACCO UNT OF ALIGARH MAIN BRANCH WHICH HAS BEEN PLACED AT PAGE NO.8 OF ASSESS EES PAPER BOOK, IT HAS BEEN NOTICED THAT CREDIT BALANCE IN THE SAID ACCOUN T UP TO 09.07.2005 WAS RS.13,582/-. ON 15.10.2005, IT IS MENTIONED AS CLO SE TRF-VCC 42493 RS.9,06,167/-. NEXT ENTRY IS DATED 09.11.2005 NARR ATING CLOSE TRF-VCC 42551 RS.3,07,744/-. NEXT ENTRY IS DATED 17.11.200 5 CLG RS.17,770/-, THEN ENTRY DATED 19.11.2005 CLG RS.2,96,949.26, THEN ENT RY DATED 02.01.2006 TO ALOK AGARWAL CHEQUE NO.869326 RS.15,40,000/- SHOWN AS DEBIT AMOUNT. AFTER THAT DEBIT AMOUNT OF RS.15,40,000/-, THE BALA NCE AMOUNT REMAINED IN THE BANK ACCOUNT WAS RS.2,212.82. ON A PERUSAL OF PAGE 11 OF THE PAPER BOOK WHERE SUPPORTING DOCUMENT FROM SYNDICATE BANK IN RESPECT OF VIKAS CASH CERTIFICATE HAS BEEN PLACED, IT HAS BEEN NOTIC ED THAT THE DATE OF MATURITY OF THE SAID VCC WAS 10.10.2005 FOR RS.9,07 ,067/- WHICH HAS BEEN CREDITED IN ASSESSEES SAVINGS BANK ACCOUNT ON 15.1 0.2005 RS.9,06,167/-. THE OTHER VCC OF WHICH COPY HAS BEEN PLACED AT PAGE NO.10 OF ASSESSEES PAPER BOOK WHICH BEARING NO.33339 36160, THE DATE O F MATURITY OF THIS VCC 13 M.A. NO.23/AGR/2012 WAS 07.11.2004 FOR RS.3,07,589/- WHEREAS IN BANK AC COUNT THE ENTRY IS DATED 09.11.2005 VCC 42551 FOR RS.3,07,744/-.. IN THIS E NTRY, NEITHER THE DATE OF MATURITY NOR THE VCC OR AMOUNT IS TALLIED AS PER TH E ENTRY IN S.B. ACCOUNT AND A COPY OF VCC WHICH HAS BEEN PLACED IN THE PAPE R BOOK AT PAGE 10. THE ASSESSEE DID NOT POINT OUT ANY EXPLANATION IN R ESPECT OF THESE DISCREPANCIES. IN RESPECT OF ENTRY DATED 17.11.200 5 FOR RS.17,770/-, IT WAS EXPLAINED THAT IT WAS INCOME TAX REFUND BUT NO EVID ENCE HAS BEEN FURNISHED. THE ASSESSEE HAS FAILED TO EXPLAIN ENTRY OF RS.2,96 ,949.26 DATED 19.11.2005. HOWEVER, THE ASSESSEE POINTED OUT THAT THIS IS OUT OF MATURITY AMOUNT FROM UNIT TRUST OF INDIA OF WHICH COPY PLACED AT PAGE NO .9 OF ASSESSEES PAPER BOOK. ON PERUSAL OF PAGE NO.9 OF PAPER BOOK, WE NO TICED THAT THE UNIT WHICH WAS AMOUNTING RS.96,949.26 OF WHICH ISSUE DAT E IS 07.11.2005 AND VALID UPTO 06.01.2006. SIMILARLY, OTHER UNIT OF RS .1,00,000/- OF WHICH ISSUE DATED IS 07.11.2005 AND VALID UPTO 06.01.2006. DAT ES AND AMOUNTS OF THE SAID UNITS DO NOT MATCH WITH THE ENTRY SHOWN IN S.B . ACCOUNT DATED 19.11.2005. FROM THE ABOVE FACTS NOTED AND ON PERU SAL OF RELEVANT RECORDS, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF RS.15,40,000/- WHICH WAS ALLEGEDLY STATED TO BE GIVEN AS GIFT TO THE ASSESSEE. THE ASSESSEE HAS ALSO FAILED TO FURNISH THE COMPLETE CIRCLE OF ALL THESE TRANSACTIONS THAT WHEREFROM ORIGINAL MONEY CA ME TO THE ACCOUNT OF SMT. ANJALI CONSUL WHICH WAS INVESTED IN UNITS AS W ELL AS IN BANKS IN THE FORM OF FIXED DEPOSITS AND OTHERS. UNLESS THE ASSE SSEE FURNISHES THE COMPLETE CHAIN OF FUNDS OR MONEY THAT THE MONEY REC EIVED BY SMT. ANJALI CONSUL, NRI, WAS IN ACCORDANCE WITH RESERVE BANK OF INDIA PROCEDURES, SMT. ANJALI CONSUL BEING NRI AND STRICT RULES ARE T O BE COMPLIED WITH FOR SENDING MONEY TO INDIA BY ANY NRI OR OTHERS, THE AS SESSEE HAS FAILED TO POINT OUT ANY SINGLE PAPER THAT THE ORIGINAL INVESTMENT M ADE BY SMT. ANJALI CONSUL IN THE UNITS AND F.D. IN BANKS WERE CAME FRO M OUT OF INDIA IN ACCORDANCE WITH RULES AND REGULATIONS FRAMED BY THE RESERVE BANK OF INDIA. IN ABSENCE OF SUCH MATERIAL, IT CANNOT BE HELD THAT THE ORIGINAL AMOUNT INVESTED BELONGS TO SMT. ANJALI CONSUL AND IN FACT THE AMOUNT GIFTED WAS FROM OUT OF INDIA. EVEN OTHERWISE, CONSIDERING THE FACT THAT THIS MAY BE THE INVESTMENT IN UNITS AND FD OUT OF INCOME EARNED IN INDIA, SUCH EXEMPTION OR EXPLANATION IS ALSO NOT ACCEPTABLE. THE REVENUE AU THORITIES HAS NOTED THAT THE DONOR SMT. ANJALI CONSUL IS FILING RETURN SHOWI NG MEAGER AMOUNT OF INCOME. FOR EXAMPLE, IN ASSESSMENT YEAR 2006-07, I T WAS RS.36,564/- ONLY. THUS, THE GIFT OF RS.15,40,000/- CANNOT BE SAID TO BE GIVEN BY SUCH MEAGER INCOME. CAN IT BELIEVABLE FACT THAT A YOUNGER SISTER RECEIV ED HER OLD INVESTMENT ON MATURITY AND GIVE ENTIRE MONEY AS GIF T HER ELDER BROTHER. AFTER THE AMOUNT GIFTED, RS.15,40,000/-, THE BALANC E AMOUNT REMAINED IN THE 14 M.A. NO.23/AGR/2012 BANK ACCOUNT WAS RS.2,212.82THUS THERE ARE REASONS TO BELIEVE THAT THE GIFT IS NOT THE REAL. THE TRANSACTIONS THOUGH MAY BE AP PARENT BUT CANNOT HOLD TO BE REAL. THE ASSESSEE RELIED UPON ON A GIFT LETTER THAT TOO IS IN DOUBT FULL, IT WILL BE VERY EASY TO MAKE SELF-SERVING GIFT LETTER EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECITALS. THE GIFT LETTER E XECUTED ON A LETTER HEAD OF HOTEL, HOTEL RAJHANS HOW DONOR AND DONEE BOTH WERE AVAILABLE ON SAME PLACE IN INDIA ON 15.12.2005, NO RELEVANT SATISFACT ORY EXPLANATION IS ON RECORD. THEREFORE, IF ALL THAT AN ASSESSEE WHO WANT S TO EVADE TAX IS TO HAVE SOME RECITALS MADE IN A DOCUMENT EITHER EXECUTED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OPEN TO EVAD E TAX. A LITTLE PROBING WAS SUFFICIENT IN THE PRESENT CASE TO SHOW THAT THE APP ARENT WAS NOT THE REAL. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLIN KERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM. THEY WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY O F THE RECITALS MADE IN THOSE DOCUMENTS. IN SUCH TYPE OF CASES RECIPIENTS M ADE CASH PAYMENTS OR INCURRED EXPENDITURES ON BEHALF OF NRI WHILE THE NR I VISITED INDIA AND AGAINST THAT AMOUNT RECEIVED THROUGH DDS. OR CHEQUE S IN INDIA. UNDER THE CIRCUMSTANCES IT IS NOT UNREASONABLE TO TAKE NOTE O F THE COMMON PHENOMENON THAT GIFT RECEIVED IN THIS MANNER IS COM MON MODE OF MONEY LAUNDERING. UNDER THE ALLEGED CIRCUMSTANCES GIFT RE CEIVED BY THE ASSESSEE IS NOT A GENUINE GIFT. WHEN GIFT IS NOT GENUINE, THE A DDITION U/S 68 IS WARRANTED. FURTHER, AS SAID ABOVE THOSE TWO ELEMENTS ARE ESSEN TIAL IN THE GIFT, GIVING AND TAKING. IN THE CASE UNDER CONSIDERATION, THE A SSESSEE HAS FAILED TO ESTABLISH SECOND PART OF THAT ELEMENT I.E. GIVING A NY LOVE AND AFFECTION TO DONOR AS DISCUSSED ABOVE. ONE OF THE ASPECTS OF THE GIFT IS THAT UNLESS IT IS IN FAVOR OF A RELATIVE, A DISPOSITION CAN BE SAID TO O PERATE AS A GIFT ONLY IF IT CAN BE SHOWN TO CONTAIN SOME ELEMENT OF BOUNTY. THE BUR DEN IS ON THE ASSESSEE TO PROVE SOME ELEMENT OF BOUNTY. BUT THE ASSESSEE H AS FAILED IN THIS REGARD. THE BURDEN IS ON ASSESSEE THAT NOT ONLY MUST THE AS SESSEE ESTABLISH THE IDENTITY OF THE DONOR AND HIS CAPACITY TO MAKE THE GIFT, BUT HE MUST ALSO ESTABLISH THAT THE AMOUNT RECEIVED BY HIM WAS IN FA CT A GIFT. THE ASSESSEE FAILED TO DISCHARGE HIS DUTY IN THIS REGARDS. IN TH E CASE OF CIT V. P. MOHANAKALA [2007] 291 ITR 278, THE SUPREME COURT CO NSIDERED THE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION AND OBSERVED THAT WHAT IT MEANS IS THAT THE ASSESSEE OFFERS NO PROPER, REASON ABLE AND ACCEPTABLE EXPLANATION IN THE OPINION OF THE ASSESSING OFFICER , FORMED OBJECTIVELY WITH REFERENCE TO THE MATERIAL AVAILABLE ON RECORD. WE F IND THAT THE ASSESSEE HAS FAILED TO FURNISH EXPLANATION AS REQUIRED IN THIS R EGARDS. HERE IT IS TO RELEVANT TO REFER OBSERVATION OF PUNJAB & HARYANA H IGH COURT IN THE CASE OF YASH PAL GOEL V. CIT(A), 310 ITR 75 (P&H) WHERE THE COURT OBSERVED 15 M.A. NO.23/AGR/2012 THAT THE SO-CALLED GIFT SET UP BY THE APPELLANT WAS NOT BONA FIDE TRANSACTION. THE UNSCRUPULOUS USE EVERY GIMMICK TO AVOID PAYING INCOME-TAX. IF THE STATE EXCHEQUER IS MADE THE TARGET OF DECEIT AND TH E REVENUE COMES DOWN, THE DEVELOPMENT OF THE COUNTRY WILL BE A CASUALTY. IT IS REPREHENSIBLE THAT SAME CITIZENS SPEND ON LITIGATION AND UNNECESSARILY BRING MATTERS BEFORE COURTS THAN TO PAY TAX ON THEIR INCOME. THE TENDEN CY NEEDS TO BE DISCOURAGED AND CURBED. THE COURT IS CONSTRAINED T O FEEL THAT THE DEPARTMENT OF INCOME-TAX HAS UNNECESSARILY BEEN DRA GGED IN THIS LITIGATION AND THE TIME OF THE COURT HAS ALSO BEEN WASTED .THE ABOVE OBSERVATION OF THE COURT IS FULLY APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERATION. IN THE LIGHT OF ABOVE DISCUSSIONS AND UNDER THE CIRCUMSTAN CES OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT THE AO HAS RIGHTLY MADE TH E ADDITION U/S 68 OF THE ACT AS GIFT WAS NOT A GENUINE GIFT AND THE CIT(A) RIGHTLY CONFIRMED THE ACTION OF THE AO IN THIS REGARDS. 6. THE ASSESSEE FILED MISCELLANEOUS APPLICATION UND ER SECTION 254(2) OF THE ACT. FOR THE PURPOSE OF READY REFERENCE, THE SAID SECTION IS REPRODUCED AS BELOW:- 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WIT HIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RE CTIFYING ANY MISTAKE APPARENT FROM RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB- ACTION(1), AND SHALL MAKE SUCH AMENDMENT IF THE MIS TAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-S ECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEAD: [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1 ST DAY OF OCTOBER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES] 16 M.A. NO.23/AGR/2012 7. TO EXAMINE THE SCOPE OF SECTION 254(2), WE WOULD LIKE TO REFER THE FOLLOWING JUDGEMENTS :- IN THE CASE OF CIT VS. KARAMCHAND THAPAR & BROS (P) LTD., 176 ITR 535(SC), IT WAS HELD AS UNDER:- (PAGE 540 - 541) IT IS EQUALLY SETTLED THAT THE DECISION OF THE TRI BUNAL HAS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER S OME INCIDENTAL FACT WHICH APPEARS ON RECORD HAS NOT BEEN NOTICED BY THE TRIBU NAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NO T TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE , THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE.. KEEPING THESE P RINCIPLES IN MIND IN THE PRESENT CASE, WE FIND THAT THE TRIBUNAL HAS TAK EN NOTE OF ALL THE RELEVANT CIRCUMSTANCES WHICH APPEAR ON RECORD AND WHICH WERE REFERRED TO BY THE DEPARTMENTAL REPRESENTATIVES BEFORE THE TRIBUNAL. I T HAS NOT TAKEN INTO ACCOUNT ANY MATERIAL WHICH COULD BE SAID TO BE IRRE LEVANT IN ARRIVING AT ITS CONCLUSIONS. IN CONSIDERING WHETHER THE SHARES OF B HARAT STARCH & CHEMICALS LTD. AND GREAVES COTTON & CO. LTD. WERE H ELD BY THE ASSESSEE AS STOCK-IN-TRADE OR AS CAPITAL, THE TRIBUNAL HAS TAKE N INTO ACCOUNT THE FACT THAT THE ASSESSEE WAS EARLIER TREATED BY THE DEPARTMENT AS A DEALER IN SHARES, AS POINTED OUT BY MR. MANCHANDA, BUT THAT CIRCUMSTANCE CANNOT BE REGARDED AS IRRELEVANT IN VIEW OF THE DECISION TO WHICH WE HAVE ALREADY REFERRED. IT IS ALSO NOT POSSIBLE TO SAY THAT THE DECISION OF THE T RIBUNAL IS PERVERSE. MR. MANCHANDA STRONGLY CONTENDED BEFORE US THAT THE TRI BUNAL HAS NOWHERE STATED IN TERMS THAT IT HAS TAKEN INTO CONSIDERATIO N THE TOTALITY OF CIRCUMSTANCES OR THE CUMULATIVE EFFECT OF THE CIRCU MSTANCES POINTED OUT TO THE TRIBUNAL AND HENCE THE MATTER SHOULD BE REMANDE D TO THE TRIBUNAL. IN OUR VIEW, THERE IS NO SUBSTANCE IN THIS SUBMISSION. IT IS TRUE THAT THE TRIBUNAL HAS NOT STATED IN TERMS THAT IT HAS CONSIDERED THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES POINTED OUT TO THE TRIBUNAL, BUT, ON THE OTHER HAND, A PLAIN READING OF THE JUDGMENT OF THE TRIBUNAL MAKES IT CL EAR THAT THE TRIBUNAL HAS, IN FACT, TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT O F THE CIRCUMSTANCES ON RECORD BEFORE THE TRIBUNAL. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN ITS JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT H AS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSI DERED THE TOTALITY OF FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT 17 M.A. NO.23/AGR/2012 HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERF ERE WITH THE DECISION OF THE TRIBUNAL. IN OUR OPINION, THERE IS NO MERIT IN THIS APPEAL AND IT MUST FAIL. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. RAMESH ELECTRIC AND TRADING CO., 203 ITR 497 (BOMB) HELD A S UNDER:- (PAGES 500 AND 501) UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAK E APPARENT FROM THE RECORD', AMEND ANY ORDER PASSED BY IT UNDER SUB-SEC TION (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 UN DER THE PROVISIONS OF THE INCOME-TAX ACT, 1961. THE ONLY POWER WHICH THE TRIB UNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPAR ENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE EXTENT OF THIS POWER OF RECTIFICATION WAS CONSIDERED BY THE SUPREME COURT A S FAR BACK AS IN 1971 IN THE CASE OF T. S. BALARAM, ITO V. VOLKART BROTHERS [1971] 82 ITR 50 . THE SUPREME COURT SAID (HEAD NOTE) : A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOU S AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. THIS VIEW OF THE SUPREME COURT HAS HELD THE FIELD F OR A LONG TIME, AND HAS BEEN FOLLOWED BY OTHER HIGH COURTS. THUS, FOR E XAMPLE, IN THE CASE OF V. P. MINOCHA, ITO V. ITAT [1977] 106 ITR 691 , THE GUJARAT HIGH COURT RELYING UPON BALARAM'S CASE [1971] 82 ITR 50 (SC), SAID THAT A DECISION GIVEN BY THE TRIBUNAL ON A DEBATABLE POINT OF LAW C ANNOT BE SUBSEQUENTLY CONSIDERED AS SHOWING ANY MISTAKE APPARENT FROM THE RECORD WHICH THE TRIBUNAL COULD CONSEQUENTLY RECTIFY. SIMILARLY, THE MADRAS HIGH COURT IN THE CASE OF CIT V. R. CHELLADURAI [1979] 118 ITR 108 , SAID THAT THE TRIBUNAL'S POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EAR LIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFYING ANY ERROR APPARE NT FROM THE RECORD. THE HONBLE M.P. HIGH COURT IN THE CASE OF COMMISSI ONER OF INCOME-TAX VS. K.D. WIRES P. LTD. (MP) 323 ITR 257 (MP) HELD AS UNDER :- (PAGE 259-260). 18 M.A. NO.23/AGR/2012 FROM A PERUSAL OF THE SECTION 254(2), IT IS LUCULE NT THAT RECTIFICATION UNDER THAT SECTION IMPLIES AMENDMENT IF THE MISTAKE IS BR OUGHT TO THE NOTICE OF THE TRIBUNAL BY THE ASSESSEE OR THE ASSESSING OFFICER. LEARNED COUNSEL HAS ALSO BROUGHT TO OUR NOTICE THE JUDGMENT OF THIS COURT IN DR. HUKUMCHAND MAROTHI V. CIT [2002] 254 ITR 602 TO THE EFFECT THAT SCOPE OF THE PROCEEDINGS UNDER ARTICLE 254(2) OF THE INCOME-TAX ACT IS LIMITED AND IS NARROWER THAN THE PROCEEDINGS FOR REVIEW. ATTENTION HAS ALSO BEEN INV ITED TO THE DECISION OF THE DELHI HIGH COURT IN CIT V. HONDA SIEL POWER PRODUCT S LTD. [2007] 293 ITR 132 THAT POWER OF RECTIFICATION UNDER SECTION 254(2 ) OF THE INCOME-TAX ACT DOES NOT IMPLY THE POWER TO RECALL OR REVIEW THE OR DER. IT IS NOT DISPUTED BEFORE US THAT ON AN APPLICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT HAVING BEEN FILED, THE TRIBUNAL SET ASIDE ITS OWN ORDER IN ITS ENTIRETY FOR PASSING AN ORDER AFRESH. THIS WAS TANT AMOUNT TO REVIEWING THE ORDER AND NOT RECTIFYING IT. UNDER THESE CIRCUMSTAN CES, THE ORDER OF THE TRIBUNAL PASSED UNDER THE PROVISIONS OF SECTION 254 (2) OF THE INCOME-TAX ACT AND THE SUBSEQUENT FRESH ORDER PASSED ON APRIL 23, 2004, CANNOT BE SUSTAINED THE HONBLE DELHI HIGH COURT IN THE CASE OF CO MMISSIONER OF INCOME-TAX VS. HONDA SIEL POWER PRODUCTS LTD., 293 ITR 132 (DE LHI) HELD AS UNDER:- (PAGE NOS.136 TO 146) A PLAIN READING OF THE ABOVE PROVISION INDICATES T HAT IN ORDER TO EXERCISE THE POWER VESTED IN IT UNDER SECTION 254(2) OF THE ACT, THE TRIBUNAL HAS TO ENSURE THAT THE FOLLOWING FACTORS ARE PRESENT : ( A )THE APPLICATION IS MADE WITHIN 4 YEARS FROM TH E DATE OF THE ORDER SOUGHT TO BE RECTIFIED. ( B )THERE IS A MISTAKE APPARENT FROM THE RECORD WH ICH IS BROUGHT TO ITS NOTICE BY EITHER THE ASSESSEE OR THE ASSESSING OFFI CER. AS REGARDS THE PROCEDURE TO BE FOLLOWED, IF THE AME NDMENT SOUGHT HAS THE EFFECT OF ENHANCING THE ASSESSMENT OR REDUCING A RE FUND OR INCREASING THE LIABILITY OF THE ASSESSEE, THE TRIBUNAL HAS TO GIVE PRIOR NOTICE TO THE ASSESSEE AND ALSO ALLOW THE ASSESSEE A REASONABLE OPPORTUNIT Y OF BEING HEARD. IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIES OF 19 M.A. NO.23/AGR/2012 THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIB LE THAT THE PRE-REQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD), BY ITS VERY NATURE THE POWER TO RECTIFY A MISTAKE C ANNOT RESULT IN THE RECALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED. OTHERWI SE, WHAT CANNOT BE DONE DIRECTLY BY SEEKING A REVIEW OF AN ORDER CAN BE ACH IEVED INDIRECTLY, BY SEEKING A RECTIFICATION OF THAT ORDER. THIS IS EVEN MORE SI GNIFICANT IN LIGHT OF THE FACT THAT UNDER THE ACT THERE IS NO EXPRESS POWER GIVEN TO THE TRIBUNAL TO REVIEW ITS OWN ORDERS. A REFERENCE MAY BE MADE TO THE OBSERVAT ION OF THE HONBLE SUPREME COURT IN S. NAGARAJ V. STATE OF KARNATAKA [ 1993] SUPPL. 4 SCC 595 THAT 'RECTIFICATION OF AN ORDER STEMS FROM THE FUND AMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR A ND NOT FOR DISTURBING FINALITY. THE FIRST SIGNIFICANT DECISION IN THIS REGARD IS K. L. BHATIAS CASE ( SUPRA ). THE FACTS OF THAT CASE WERE THAT THE ASSESSEE FILED AN APPLICATION BEFORE THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT STATING TH AT CERTAIN MATERIAL FACTS WERE NOT CORRECTLY NOTED BY THE TRIBUNAL IN ITS ORD ER DATED 27-6-1985 IN WHICH IT CONCLUDED THAT THE PROPERTY CLAIMED BY THE ASSES SEE AS BELONGING TO HIS WIFE, IN FACT BELONGED TO HIM AND THAT THE WIFE WAS ONLY A BENAMIDAR. THE TRIBUNAL ACCEPTED THIS APPLICATION AND CAME TO THE CONCLUSIO N THAT THERE WAS A MISTAKE IN THE EARLIER ORDER DATED 27-6-1985 AND AS SUCH TH E ORDER WAS REQUIRED TO BE RECALLED. ONE OF THE QUESTIONS RAISED IN THE APPEAL BEFORE THIS COURT WAS WHETHER THE TRIBUNAL HAD ANY POWER TO RECALL ITS EA RLIER ORDER. THIS COURT CATEGORICALLY HELD THAT THE TRIBUNAL HAD NO POWER T O RECALL ITS ORDER ON MERITS IN EXERCISE OF ITS POWERS UNDER SECTION 254 OF THE ACT. THE COURT HELD AS UNDER :- AS WE HAVE ALREADY OBSERVED, THE TRIBUNAL IS A CRE ATION OF THE STATUTE. IT IS AN ADMITTED CASE, AND IT IS NOW WELL-SETTLED, THAT THOUGH THE TRIBUNAL HAS NO INHERENT POWER OF REVIEWING ITS ORDER ON MERITS, TH E TRIBUNAL HAS INCIDENTAL OR ANCILLARY POWERS WHICH CAN BE EXERCISED BY IT. B UT SUCH POWER CANNOT BE INVOKED TO REHEAR A CASE ON MERITS. THE TRIBUNAL CA N, AFTER DISPOSING OF THE APPEAL UNDER SECTION 254(1), (PAGE138) REHEAR THE M ATTER ON MERITS ONLY WITHIN THE PURVIEW OF SECTION 254(2). THE SUPREME C OURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI A IR 1970 SC 1273, THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MU ST BE CONFERRED BY LAW EITHER SPECIALLY OR BY NECESSARY IMPLICATION. IT DO ES NOT STAND TO REASON THAT, IF THE POWER OF REVIEW IS NOT PRESENT WITH THE TRIB UNAL, IT, NEVERTHELESS, CAN EXERCISE SUCH POWER INDIRECTLY WHEN IT CANNOT DO SO DIRECTLY. IF THE CONTENTION OF LEARNED COUNSEL FOR THE RESPONDENT IS CORRECT, THEN IT COULD 20 M.A. NO.23/AGR/2012 MEAN THAT, EVEN ON MERITS, THE TRIBUNAL CAN RECALL ITS EARLIER ORDER AND THEN HEAR THE CASE AFRESH AND PASS A DIFFERENT ORDER. IF THIS IS SO, IT WOULD AMOUNT TO THE TRIBUNAL EXERCISING POWER OF REVIEW WHEN IT DOES NOT HAVE ANY SUCH POWER. TO GIVE AN EXAMPLE, UNDER THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE, ORDER 47 PROVIDES THE CIRCUMSTANCES IN W HICH A JUDGMENT MAY BE REVIEWED. IF THE CONTENTION OF LEARNED COUNSEL F OR THE RESPONDENT IS CORRECT, THEN, APPLYING THE SAME ANALOGY TO A CIVIL CASE, IT WOULD BE OPEN TO A COURT TO RECALL ITS JUDGMENT IN A CASE WHERE THE PROVISIONS OF ORDER 47 ARE NOT APPLICABLE, AND THEN TO REHEAR THE CASE. WITH R ESPECT, WE SEE NO WARRANT FOR THIS IN LEGAL JURISPRUDENCE. THE APPELLATE COUR T CAN HEAR A CASE AND DECIDE IT ON MERITS, ONCE FOR ALL, AND CANNOT KEEP ON REHEARING THE SAME APPEAL OVER AND OVER AGAIN. FULL EFFECT HAS TO BE G IVEN TO THE PROVISIONS OF SECTION 254(4) WHICH SPECIFICALLY PROVIDES THAT A D ECISION OF THE TRIBUNAL PASSED IN APPEAL IS FINAL. THIS DECISION IS FINAL N OT ONLY FOR THE ASSESSEE BUT ALSO FINAL AS FAR AS THE TRIBUNAL ITSELF IS CONCERN ED. (P. 367) IN THE COURSE OF THE JUDGMENT IN K.L. BHATIAS CASE (SUPRA) IT WAS OBSERVED : THE INCOME-TAX ACT IS A SELF-CONTAINED CODE. THE I NCOME-TAX APPELLATE TRIBUNAL IS A CREATION OF THE STATUTE AND ITS POWERS ARE CIRCUMSCRIBED BY THE PROVISIONS OF THE ACT. APPEALS ARE FILED BEFORE IT UNDER SECTION 253 OF THE ACT. SECTION 254(1) CONTEMPLATES DISPOSAL OF THE SAID APPEAL AFTER GIVING AN OPPORTUNITY TO BOTH THE PART IES OF BEING HEARD. SUB- SECTION (2) OF SECTION 254 ENABLES THE TRIBUNAL TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. SUB-SECTION (4) OF SECTIO N 254 SPECIFIES THAT SAVE AS PROVIDED IN SECTION 256, THE ORDER PASSED BY THE APPELLATE TRIBUNAL ON APPEAL ARE FINAL. A READING OF SECTION 254 SHOWS THAT THE ORDERS WHIC H ARE PASSED UNDER SECTION 254 ARE FINAL EXCEPT UNDER TWO CIRCUMSTANCE S : (1) IF A RECTIFICATION IS CALLED FOR, THEN SUCH AN ORDER CAN BE PASSED UND ER SECTION 254(2), AND (2) A REFERENCE CAN BE MADE ON QUESTIONS OF LAW ARISING OUT OF THIS ORDER UNDER THE PROVISIONS OF SECTION 256. AS FAR AS THE TRIBUN AL IS CONCERNED, SECTION 254(4) PROVIDES THAT THE ORDERS PASSED BY IT ON APP EAL ARE FINAL. (P. 364- 65) 21 M.A. NO.23/AGR/2012 IMPORTANTLY THIS COURT IN K.L. BHATIAS CASE ( SUPR A ) DREW A DISTINCTION BETWEEN THE POWER UNDER SECTION 35 OF THE INDIAN IN COME-TAX ACT, 1922 (1922 ACT) (WHICH WAS THE CORRESPONDING PROVISION RELATING TO RECTIFICATION OF ORDERS) AND THE PRESENT SECTION 254 OF THE 1961 ACT. REFERRING TO THE JUDGMENT OF THE HONBLE SUPREME COURT IN CIT V. MTT . AR. S. AR. ARUNACHALAM CHETTIAR [1953] 23 ITR 180 THIS COURT I N K.L. BHATIAS CASE ( SUPRA ) OBSERVED AS UNDER: ... ARUNACHALAM CHETTIARS CASE [1953] 23 ITR 180 , WAS ONE WHERE THE SUPREME COURT DECIDED THAT, IF AN APPLICATION HAD N OT BEEN DECIDED UNDER THE PROVISIONS OF SECTION 33(4) OF THE INCOME-TAX A CT, THEN A REFERENCE UNDER SECTION 66(1) OF THE INDIAN INCOME-TAX ACT, 1922, W AS NOT MAINTAINABLE. THE SUPREME COURT DID NOT, IN THAT CASE, HOLD WHETHER T HE MISCELLANEOUS APPLICATION HAD BEEN FILED AND DECIDED UNDER THE PR OVISIONS OF SECTION 35 OF THE INDIAN INCOME-TAX ACT, 1922, OR NOT. THE REASON FOR THAT WAS THAT FROM AN ORDER PASSED UNDER SECTION 35 OF THE 1922 ACT, N O REFERENCE APPLICATION COULD BE FILED UNDER SECTION 66 OF THE 1922 ACT. TH E POSITION IN LAW HAS NOW CHANGED WITH THE ENACTMENT OF THE 1961 ACT WHERE EV EN FROM AN ORDER OF RECTIFICATION, A REFERENCE APPLICATION UNDER SECTIO N 256 CAN BE FILED. (P. 366) THE NEXT IMPORTANT DECISION IS MS. DEEKSHA SURI V. ITAT [1998] 232 ITR 395 1 (DELHI). IN THE SAID CASE, THE ASSESSEES HAD MOVED AN APPLICATION UNDER RULE 29 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULE S, 1963 (RULES), SEEKING ADMISSION BY WAY OF ADDITIONAL EVIDENCE BEF ORE THE TRIBUNAL. THE TRIBUNAL, AFTER HEARING THE APPEAL ON MERITS, DISMI SSED IT BY ORDER DATED 3- 1-1997. ON 5-2-1997 THE ASSESSEES MOVED AN APPLICAT ION UNDER SECTION 254(2) STATING THAT VERY SERIOUS ERRORS OR MISTAKES HAD CREPT INTO THE FINAL ORDER OF THE TRIBUNAL. THEY POINTED OUT THAT THE TR IBUNAL HAD OVERLOOKED ITS EARLIER ORDER DATED 23-10-1996 DIRECTING THE APPLIC ATION UNDER RULE 29 TO BE DISPOSED OF FIRST. THE TRIBUNAL REJECTED THE RECTIF ICATION APPLICATION OBSERVING: 'IT WAS INDEED THE DUTY OF THE COUNSEL T O ADDRESS THIS BENCH FIRST ON THE RULE 29 APPLICATION IF AT ALL THE SAME WAS D ESIRED TO BE PRESSED OR ARGUED. ADMITTEDLY NOT HAVING DONE SO IT CANNOT NOW BE ATTRIBUTED AS A MISTAKE APPARENT FROM RECORD TO THE TRIBUNAL.' THE TRIBUNAL CONCLUDED: 22 M.A. NO.23/AGR/2012 14.7 IN THE CIRCUMSTANCES, THE APPELLANTS HAVING A RGUED ON MERITS, NOT HAVING HIGHLIGHTED/ARGUED PETITION UNDER RULE 29 AN D THE TRIBUNAL IN ITS ORDER HAVING DEALT WITH IN EXTENSO THE LETTER DATED 21-2-1995, THERE IS NO MISTAKE APPARENT FROM RECORD CALLING FOR RECTIFICAT ION UNDER SECTION 254(2) OF THE ACT AND RESTRICTING THE APPELLANT TO THE MAT ERIAL ON RECORD SANS ADDITIONAL EVIDENCE, WAS IN ORDER AND NOT A MISTAKE APPARENT FROM RECORD. WE, THEREFORE, FIND NO MERIT IN THESE APPLICATIONS AND DISMISS THE SAME. (P. 406) BEFORE THIS COURT, THE QUESTION THAT AGAIN AROSE WA S WHETHER THE TRIBUNAL HAD ERRED IN REJECTING THE APPLICATIONS FOR RECTIFI CATION. THIS COURT FORMULATED THE QUESTION AND ANSWERED IT AS UNDER: COULD ANY RELIEF HAVE BEEN ALLOWED TO THE PETITION ERS IN EXERCISE OF JURISDICTION CONFERRED BY SECTION 254(2) OF THE ACT AMENDING THE ORDER PASSED BY THE TRIBUNAL WITH A VIEW TO RECTIFY ANY M ISTAKE APPARENT FROM THE RECORD? THE LANGUAGE OF THE PROVISIONS IS CLEAR. TH E FOUNDATION FOR EXERCISING THE JURISDICTION IS WITH A VIEW TO RECT IFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. THE POWER SO CONFERRED DOES NOT CONTEMPLATE A REHEA RING WHICH WOULD HAVE THE EFFECT OF REWRITING AN ORDER AFFECTING THE MERI TS OF THE CASE. EVEN THERE WOULD BE NO DISTINCTION BETWEEN A POWER TO REVIEW A ND A POWER TO RECTIFY A MISTAKE. WHAT IS NOT PERMITTED TO BE DONE BY THE ST ATUTE HAVING DELIBERATELY OMITTED TO CONFER REVIEW JURISDICTION ON THE TRIBUN AL, CANNOT BE INDIRECTLY ACHIEVED BY RECOURSE TO SECTION 254(2) OF THE ACT. (P. 415) FOLLOWING THE DECISION IN K.L BHATIAS CASE ( SUPRA ) THIS COURT IN DEEKSHA SURIS CASE ( SUPRA ) DISMISSED THE APPEALS OF THE ASSESSEE HOLDING THAT THE TRIBUNAL WAS RIGHT IN DISMISSING THE RECTIFICATION APPLICATION. THE THIRD IMPORTANT DECISION IS J.N. SAHNIS CASE ( SUPRA ), AGAIN BY A DIVISION BENCH OF THIS COURT. IN THAT CASE, THE TRIBUNAL ENTERTAIN ED THE APPLICATIONS FILED BY THE REVENUE SEEKING RECTIFICATION OF AN ORDER ON TH E GROUND THAT THERE WERE CERTAIN MISTAKES APPARENT FROM THE RECORD. THE TRIB UNAL THEN PROCEEDED TO RECALL THE ENTIRE ORDER AND FIXED THE APPEALS FOR R E-HEARING. THE ASSESSEE THEN MOVED THIS COURT BY WAY OF AN APPEAL AND PLACI NG RELIANCE UPON THE DECISIONS IN DEEKSHA SURIS CASE ( SUPRA ) AND K.L BHATIAS CASE ( SUPRA ), URGED THAT THE TRIBUNAL HAD EXCEEDED ITS JURISDICTI ON UNDER SECTION 254(2) OF 23 M.A. NO.23/AGR/2012 THE ACT AND COULD NOT HAVE POSSIBLY RECALLED THE EN TIRE ORDER. AFTER REFERRING TO THE CASE LAW, THIS COURT REITERATED THAT THE POW ER ENTRUSTED UNDER SECTION 254(2) COULD NOT BE USED TO RECALL THE ORDER ITSELF . REFERENCE WAS MADE TO THE DECISION IN SMT. BALJEET JOLLYS CASE ( SUPRA ) , WHERE IT WAS CATEGORICALLY HELD THAT 'AMENDMENT OF AN ORDER DOES NOT MEAN OBLI TERATION OF AN ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORD ER'. THIS COURT EXPRESSLY DISSENTED FROM THE DECISION OF THE RAJASTHAN HIGH C OURT IN CIT V. RAMESH CHAND MODI [2001] 249 ITR 323 WHERE IT HAD BEEN HEL D THAT WHERE THE TRIBUNAL FAILS TO DECIDE SOME OF THE QUESTIONS RAIS ED BEFORE IT INADVERTENTLY OR BY OVERSIGHT, IT COULD EXERCISE THE POWER UNDER SECTION 254(2) TO RECTIFY SUCH A MISTAKE. THIS COURT IN J.N. SAHNIS CASE ( S UPRA ) OBSERVED : WITH UTMOST RESPECT WE ARE UNABLE TO SUBSCRIBE TO THE AFOREMENTIONED VIEW. THE TRIBUNAL IN THE ABSENCE OF ANY EXPRESS PO WER CANNOT BE SAID TO HAVE A POWER OF SUBSTANTIVE REVIEW. THE TRIBUNAL HA S MERELY THE POWER TO AMEND ITS ORDER. WHILE EXERCISING THE SAID POWER IT CANNOT RECALL ITS ORDER. THE EXPRESSION AMENDMENT MUST BE ASSIGNED ITS TRU E MEANING. WHILE AN ORDER OF AMENDMENT IS PASSED, THE ORDER REMAINS BUT WHEN AN ORDER IS RECALLED IT STANDS OBLITERATED. IT IS WELL-SETTLED THAT WHAT CANNOT BE DONE DIRECTLY, CANNOT BE DONE INDIRECTLY. THE REVIEW OF ITS OWN ORDER BY THE TRIBUNAL IS FORBIDDEN IN LAW, IT CANNOT BE PERMITTE D TO ACHIEVE THE SAME OBJECT BY EXERCISING ITS POWER UNDER SUB-SECTION (2 ) OF SECTION 254. THE INCOME-TAX APPELLATE TRIBUNAL DOES NOT HAVE AN INHE RENT POWER OF REVIEW. (P. 21) IN VICHTRA CONSTRUCTION (P.) LTD.S CASE (SUPRA), T HE TRIBUNAL DECIDED TO RECALL THE EARLIER ORDER IN ITS ENTIRETY WHILE A CCEPTING THE APPLICATION FOR RECTIFICATION. THIS COURT HELD THAT SUCH AN ORDER B Y THE TRIBUNAL WAS BEYOND THE SCOPE OF THE SECTION 254(2). IT WAS HELD AS UND ER: IN VIEW OF THE PROVISIONS AND JUDICIAL PRONOUNCEME NT INDICATED HEREINABOVE, WE ARE OF THE VIEW THAT THE POWER TO R ECTIFY A MISTAKE UNDER SECTION 254(2) CANNOT BE USED FOR RECALLING T HE ENTIRE ORDER. NO POWER OF REVIEW HAS BEEN GIVEN TO THE TRIBUNAL UNDE R THE INCOME-TAX ACT. THUS, WHAT IT CANNOT DO DIRECTLY, CANNOT BE AL LOWED TO BE DONE INDIRECTLY. IF THE ASSESSEE WAS AGGRIEVED, IT WAS O PEN FOR HIM TO APPROACH THE APPROPRIATE FORUM BUT THE TRIBUNAL COU LD NOT HAVE 24 M.A. NO.23/AGR/2012 REVIEWED THE ENTIRE JUDGMENT DELIVERED BY IT EARLIE R IN THE GARB OF EXERCISING ITS POWER UNDER SECTION 254(2). ACCORDIN GLY, THE ANSWER IS REQUIRED TO BE GIVEN IN FAVOUR OF THE REVENUE AND A GAINST THE ASSESSEE. (P. 374) RECENTLY, IN CIT V. ITAT [2006] 155 TAXMAN 378 A DI VISION BENCH OF THIS COURT WAS CONSIDERING A CASE WHERE THE TRIBUNA L HAD RECALLED THE EARLIER ORDER ON THE GROUND THAT IT HAD FAILED TO N OTE OF A DECISION RENDERED BY A THREE MEMBER BENCH OF THE TRIBUNAL AT ALLAHABA D. THE REVENUE IN APPEAL BEFORE THIS COURT CONTENDED THAT THIS COULD HARDLY BE A GROUND FOR THE RECALL OF THE ENTIRE ORDER IN TERMS OF SECTION 254(2) OF THE ACT. IN PARAS 6 AND 7 THIS COURT IN ITATS CASE ( SUPRA ) HELD AS U NDER : 6. IT IS EVIDENT FROM THE ABOVE THAT THE POWER AVA ILABLE TO THE TRIBUNAL IS NOT IN THE NATURE OF A REVIEW AS IS UND ERSTOOD IN LEGAL PARLANCE. THE POWER IS LIMITED TO CORRECTION OF MIS TAKES APPARENT FROM THE RECORD. WHAT IS SIGNIFICANT IS THAT THE SE CTION ENVISAGES AMENDMENT OF THE ORIGINAL ORDER OF THE TRIBUNAL AND NOT A TOTAL SUBSTITUTION THEREOF. THAT POSITION IS FAIRLY WELL- SETTLED BY TWO DECISIONS OF THIS COURT IN MS. DEEKSHA SURI V. ITAT [1998] 232 ITR 395/ 100 TAXMAN 573 AND KARAN & CO. V. ITAT [2002] 253 ITR 131/[2001] 118 TAXMAN 473 . THIS COURT HAS IN BOTH THESE DECISIONS HELD THAT THE FOUNDATION FOR THE EXERCISE OF THE JU RISDICTION LIES IN THE RECTIFICATION OF A MISTAKE APPARENT FROM THE RECORD WHICH OBJECT IS ENSUED BY AMENDING THE ORDER PASSED BY THE TRIBUNAL . THE SAID POWER DOES NOT, HOWEVER, CONTEMPLATE A REHEARING OF THE A PPEAL FOR A FRESH DISPOSAL. DOING SO WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAKES AND THE POWER TO REVIEW THE ORD ER MADE BY THE TRIBUNAL. THE FOLLOWING PASSAGE FROM THE DECISION O F THIS COURT IN KARAN & CO.S CASE ( SUPRA ) ELUCIDATES THE DIFFERE NCE BETWEEN REVIEW AND RECTIFICATION OF AN ORDER MADE BY THE TRIBUNAL : THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254( 2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. WE SHALL FIRST DEAL WITH THE QUESTION OF TH E POWER OF THE TRIBUNAL TO RECALL AN ORDER IN ITS ENTIRETY. RECALL ING THE ENTIRE ORDER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. THAT DOES NOT APPEAR 25 M.A. NO.23/AGR/2012 TO BE THE LEGISLATIVE INTENT. THE ORDER PASSED BY T HE TRIBUNAL UNDER SECTION 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED UNDER SECTION 254(2) EITHER ALLOWI NG THE AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMENDED OR REMAINING UNAMENDED IS THE EFFE CTIVE ORDER FOR ALL PRACTICAL PURPOSES. THE SAME CONTINUES TO BE AN ORDER UNDER SECTION 254(1). THAT IS THE FINAL ORDER IN THE APPE AL. AN ORDER UNDER SECTION 254(2) DOES NOT HAVE EXISTENCE DE HORS THE ORDER UNDER SECTION 254(1). RECALLING OF THE ORDER IS NOT PERMISSIBLE U NDER SECTION 254(2). RECALLING OF AN ORDER AUTOMATICALLY NECESSITATES RE -HEARING AND READJUDICATION OF THE ENTIRE SUBJECT-MATTER OF APPE AL. THE DISPUTE NO LONGER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OR RULE 2 4 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963, AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR B EING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED E X PARTE. THIS POSITION WAS HIGHLIGHTED BY ONE OF US (JUSTICE ARIJ IT PASAYAT, CHIEF JUSTICE) IN CIT V. ITAT [1992] 196 ITR 640 (ORI). J UDGED IN THE ABOVE BACKGROUND, THE ORDER PASSED BY THE TRIBUNAL IS INDEFENSIBLE. (P.136) 7. THAT BEING THE LEGAL POSITION, THE TRIBUNAL WAS NOT IN OUR OPINION JUSTIFIED IN RECALLING THE ORDER PASSED BY IT IN TO TO AND SETTING THE MATTER DOWN FOR A FRESH HEARING. JUST BECAUSE A PRONOUNCEM ENT MADE ON THE SUBJECT EITHER BY THE TRIBUNAL OR BY ANY OTHER COUR T WAS NOT NOTICED BY THE TRIBUNAL WHILE TAKING A PARTICULAR VIEW ON THE MERI TS OF THE CONTROVERSY MAY CONSTITUTE AN ERROR THAT WOULD CALL FOR CORRECTION IN AN APPROPRIATE APPEAL AGAINST THE ORDER. ANY SUCH ERROR MAY HOWEVER FALL SHORT OF CONSTITUTING A MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. MORE IMPORTANTLY JUST BECAUSE A POINT IS D EBATABLE (WHICH IS ONE OF THE REASONS GIVEN BY THE TRIBUNAL IN THE INSTANT CA SE) WOULD HARDLY PROVIDE A JUSTIFICATION FOR RECALLING THE ORDER AND FIXING THE APPEAL FOR A DE NOVO HEARING. WHILE DOING SO, THE TRIBUNAL HAS NO DOUBT MADE CERTAIN OBSERVATIONS IN REGARD TO THE LEVY OF INTEREST UNDE R SECTION 158BFA BEING STATUTORY IN NATURE WITH NO POWER VESTED IN ANY AUT HORITY OR TRIBUNAL TO CONDONE THE SAME, BUT THE VERY FACT THAT THE TRIBUN AL HAS MADE THOSE OBSERVATIONS WOULD NOT RENDER VALID THE ORDER OF RE CALL PASSED BY IT. THE NET RESULT OF THE ORDER MADE BY THE TRIBUNAL CONTINUES TO REMAIN THE SAME VIZ., 26 M.A. NO.23/AGR/2012 THE APPEAL HAS TO BE HEARD AGAIN SIMPLY BECAUSE ONE OF THE ISSUES DECIDED BY THE TRIBUNAL IS DEBATABLE OR THE TRIBUNAL HAS NO T NOTICED AN EARLIER DECISION RENDERED BY ANOTHER BENCH. BOTH THESE REAS ONS WERE INSUFFICIENT TO JUSTIFY THE ORDER OF RECALL MADE BY THE TRIBUNAL. (P. 381) TURNING TO THE FACTS OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT IT MAKES NO DIFFERENCE WHETHER THE ENTIRE ORDE R IS SOUGHT TO BE RECALLED OR THE ORDER PASSED BY THE TRIBUNAL ON INDIVIDUAL G ROUNDS IS SOUGHT TO BE RECALLED IN ENTIRETY. IN OTHER WORDS, IF THE TRIBUN AL HAS GIVEN ITS DECISION ON SAY GROUNDS 3 AND 4 IN A PARTICULAR WAY IN ITS FIRS T ORDER WHILE DEALING WITH TEN SEPARATE GROUNDS AND PURSUANT TO A RECTIFICATIO N APPLICATION, IT RECALLS ITS DECISION ON GROUNDS 3 AND 4 AND GIVES A COMPLET ELY DIFFERENT DECISION ON THE SAID GROUNDS, THEN IT WOULD CERTAINLY AMOUNT TO RECALL AND REVIEW OF ITS ENTIRE ORDER IN RESPECT OF THOSE GROUNDS. WE ARE UN ABLE TO PERSUADE OURSELVES TO ACCEPT THE SUBMISSION OF MR. SYALI THA T WHAT THE DECISION IN K.L BHATIAS CASE ( SUPRA ) AND OTHER DECISIONS THAT HA VE FOLLOWED IT, FORBIDS IS ONLY A RECALL OF THE TRIBUNALS ENTIRE DECISION ON ALL THE TEN GROUNDS AND NOT TO THE RECALL AND REVIEW OF ONLY TWO OUT OF THE TEN GROUNDS. THERE IS NO BASIS FOR SUCH A DISTINCTION EITHER FROM THE LANGUAGE OF SECTION 254(2) OF THE ACT OR OF THE DECISIONS OF THIS COURT IN THE NUMEROUS C ASES NOTICED HEREINABOVE. THE DECISIONS CITED BY MR. SYALI IN K. VENKATACHALA MS CASE ( SUPRA ), S.A.L. NARAYAN ROWS CASE ( SUPRA ) TURNED ON THEIR OWN FACTS. K. VENKATACHALAM PERTAINED TO THE POWER UNDER SECTION 35 OF THE 1922 ACT. AS OBSERVED BY DIVISION BENCH OF THIS COURT IN K.L. BH ATIAS CASE ( SUPRA ) SECTION 35 OF THE 1922 ACT DID NOT PROVIDE FOR A FU RTHER REFERENCE TO THE HIGH COURT AGAINST THE DECISION THEREUNDER WHEREAS UNDER THE PRESENT ACT A REFERENCE UNDER SECTION 256 IS PERMISSIBLE IN RESPE CT OF A DECISION UNDER SECTION 254. IN S.A.L. NARAYAN ROWS CASE ( SUPRA ) A SUBSEQUENT LEGISLATIVE CHANGE RELATED BACK TO THE ASSESSMENT PERIOD COVERE D BY THE ASSESSMENT ORDER IN QUESTION NECESSITATING ITS RECALL. THIS WA S NOT AN INSTANCE OF A MISTAKE ON RECORD. KARAMCHAND PREMCHAND (P.) LTD.S CASE ( SUPRA ) INVOLVED SECTION 256(1) OF THE COMPANIES (PROFITS) SURTAX ACT AND NOT SECTION 254(2) OF THE INCOME-TAX ACT, 1961. NOT SUR PRISINGLY, THEREFORE, THE SAID DECISION IN KARAMCHAND PREMCHAND (P.) LTD.S C ASE ( SUPRA ) DOES NOT REFER TO ANY OF THE DECISIONS DISCUSSED HEREINABOVE AND IS, THEREFORE, DISTINGUISHABLE ON THAT GROUND ITSELF. 27 M.A. NO.23/AGR/2012 MR. SYALI PLACED CONSIDERABLE RELIANCE ON THE DECIS ION OF THE GUJARAT HIGH COURT IN SAURASHTRA KUTCH STOCK EXCHANGE LTD. S CASE ( SUPRA ) WHERE IT WAS HELD : THE PROPOSITION THAT A CONTENTION RAISED BUT NOT D EALT WITH BY THE TRIBUNAL SHOULD BE HELD TO HAVE BEEN NEGATIVED IS C ORRECT ONLY UP TO A STAGE. ONCE A PARTY BRINGS TO THE NOTICE OF THE TRI BUNAL THAT AN IMPORTANT POINT OR CONTENTION RAISED BY THE PARTY H AS NOT BEEN DEALT WITH IT WOULD BE WITHIN THE JURISDICTION AND POWERS OF THE TRIBUNAL TO DECIDE WHETHER THE SAME CONSTITUTES A MISTAKE APPAR ENT FROM THE RECORD AND THEREAFTER, IF NECESSARY, REOPEN THE APP EAL. SUCH A POWER IS INHERENT IN THE TRIBUNAL, AS A PARTY HAS SUFFERE D PREJUDICE DUE TO A LAPSE ON THE PART OF THE TRIBUNAL AND NOT ON ACCOUN T OF ANY FAULT OF SUCH A PARTY. AN ACT OF THE TRIBUNAL SHOULD NOT PRE JUDICE A PARTY SO AS TO FORCE THE PARTY INTO UNWARRANTED LITIGATION. (P . 155) IT WAS FURTHER OBSERVED IN THE ABOVE DECISION THAT 'AFTER THE MISTAKE IS CORRECTED, CONSEQUENTIAL ORDER MUST FOLLOW, AND THE TRIBUNAL HAS POWER TO PASS ALL NECESSARY CONSEQUENTIAL ORDERS'. MR. SYALI ACCORDINGLY ADVOCATES FOR A SIMILAR WIDER INTERPRETATION OF THE SCOPE OF THE POWER UNDER SECTION 254(2) OF THE ACT BY THIS COURT, IN THE PECULIAR FA CTS OF THIS CASE. WE ARE UNABLE TO AGREE WITH THIS SUBMISSION OF MR. SYALI. ONE INSTANCE OF A MISTAKE APPARENT FROM THE RECORD IS I NDICATED IN RULE 24 OF THE INCOME-TAX APPELLATE TRIBUNAL RULES AND THAT MISTAK E IS PERMISSIBLE TO BE CORRECTED BY RECALLING THE ORDER. HOWEVER, IN ORDER TO INVOKE THE POWER UNDER SECTION 254(2) THE MISTAKE WOULD HAVE TO BE S HOWN TO BE A MISTAKE APPARENT FROM THE RECORD. THE TRIBUNAL, IN THE PRES ENT CASE RECORDS IN PARA 5 OF THE IMPUGNED ORDER DATED 10-9-2003 THAT ADMITT EDLY, A DECISION OF THE CO-ORDINATE BENCH WAS CITED AND PLACED ON RECORD BU T THE SAME HAS ESCAPED THE ATTENTION OF THIS BENCH. WE HAVE ALREAD Y HELD THIS CAN HARDLY BE CONSTRUED AS A MISTAKE APPARENT FROM THE RECORD. AS POINTED OUT BY THIS COURT IN CIT V. ITAT [2006] 155 TAXMAN 378 THIS MIG HT BE A GOOD GROUND FOR AN APPEAL BUT NOT FOR A RECTIFICATION. A DISTIN CTION AS RIGHTLY BEEN DRAWN IN SEVERAL DECISIONS OF THIS COURT BETWEEN THE SCOP E OF THE POWER OF REVIEW AND RECALL AND THAT OF RECTIFICATION. IN THE CIRCUM STANCES WE ARE, WITH 28 M.A. NO.23/AGR/2012 RESPECT, UNABLE TO SUBSCRIBE TO THE BROAD-BRUSH APP ROACH OF THE GUJARAT HIGH COURT. WE MAY ADD THAT UNDER SECTION 254(2) THE LIMITATION FOR FILING AN APPLICATION FOR RECTIFICATION IS AN UNUSUALLY LONG PERIOD OF FOUR YEARS. CONTRASTED WITH FAR LESSER PERIODS OF LIMITATION FO R FILING APPEALS, IT UNDERSCORES THE NEED FOR THE TRIBUNAL TO BE CIRCUMS PECT ABOUT THE INSTANCES WHERE IT WILL ENTERTAIN APPLICATIONS FOR RECTIFICAT ION. IT MUST BE REMEMBERED THAT THIS IS NOT A POWER OF REVIEW BUT IS RESTRICTE D TO RECTIFYING MISTAKES 'APPARENT FROM THE RECORD'. A LIBERAL APPROACH MIGH T CONSTITUTE AN INVITATION TO PARTIES TO ALLOW THE PERIOD FOR FILIN G AN APPEAL TO EXPIRE, ANTICIPATE A CHANGE OF CORAM OF THE BENCH THAT HEAR D THE APPEAL IN THE FIRST INSTANCE, AND THEN AT THEIR OWN SWEET WILL TAKE A CHANCE BY FILING A RECTIFICATION APPLICATION ON ANY FANCY IMAGINED 'MI STAKE APPARENT FROM THE RECORD' AT ANY TIME BEFORE THE EXPIRY OF FOUR YEARS . THE LIKELIHOOD OF INGENUOUS LAWYERING RESULTING IN THE ABUSE OF THE P ROVISION CANNOT BE RULED OUT. IN THE CIRCUMSTANCES, WE WOULD CAUTION AGAINST THE TRIBUNAL INTERPRETING THE NARROW POWER OF RECTIFICATION WIDE R THAN WHAT IT IS. IN CONCLUSION, WE ARE OF THE VIEW THAT THE IMPUGNED ORDER OF THE TRIBUNAL DATED 10-9-2003 BY WHICH IT RECALLED AND R EVERSED ITS EARLIER DECISION DATED 2-4-2002 ON GROUNDS 2 AND 3, IS IMPE RMISSIBLE AND UNSUSTAINABLE IN LAW. WE REITERATE THAT IN THE FACT S OF THE PRESENT CASE IT MAKES NO DIFFERENCE WHETHER THE ENTIRE ORDER IS SOU GHT TO BE RECALLED OR THE ORDER PASSED BY THE TRIBUNAL ON INDIVIDUAL GROUNDS IS SOUGHT TO BE RECALLED IN ITS ENTIRETY. NEITHER IS PERMISSIBLE UNDER THE G ARB OF RECTIFICATION . 8. FROM ABOVE JUDICIAL PRONOUNCEMENTS WE FIND THAT RECTIFICATION OF AN ORDER STEAMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND NOT FOR DISTURBING FINALITY. I T IS AN ADMITTED CASE, AND IT IS NOW WELL-SETTLED, THAT THOUGH THE TRIBUNAL HAS NO INHER ENT POWER OF REVIEWING ITS ORDER ON MERITS, THE TRIBUNAL HAS INCIDENTAL OR ANCILLARY POWERS WHICH CAN BE EXERCISED 29 M.A. NO.23/AGR/2012 BY IT. BUT THE SAID POWER DOES NOT, HOWEVER, CONTEM PLATE A REHEARING OF THE APPEAL FOR A FRESH DISPOSAL. DOING SO WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAKES AND THE POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. IT IS EQUALLY SETTLED THAT THE DECISION OF THE TRIBUNAL H AS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERELY FOR REVIEW EARLIER ORDER OR TO REHEAR AND TO GET A SECOND ORDER IN THE GARB OF APPLICATION UNDER SECTION 254 (2) OF THE ACT. THE MAIN QUESTION, THEREFORE, IS: WHAT IS A MISTAKE APPARENT FROM THE RECORD? NOW, A SIMILAR EXPRESSION ERROR APPARENT ON THE FACE OF THE RECOR D CAME UP FOR CONSIDERATION BEFORE COURTS WHILE EXERCISING CERTIORARI JURISDICT ION UNDER ARTICLES 32 AND 226 OF THE CONSTITUTION. IN T.S. BALARAM V. VOLKART BROTHE RS, BOMBAY, (1971) 2 SCC 526, THE COURT HELD THAT ANY MISTAKE APPARENT FROM THE RECORD IS UNDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRI T PETITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECORD. IT WAS , HOWEVER, CONCEDED IN ALL LEADING CASES THAT IT IS VERY DIFFICULT TO DEFINE AN ERROR APPARENT ON THE FACE OF THE RECORD PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. IN TH E CASE OF HARI VISHNU KAMATH V. SYED AHMAD ISHAQUE, (1955) 1 SCR 1104, THE CONSTITU TION BENCH OF THE APEX COURT QUOTED THE OBSERVATIONS OF CHAGLA, C.J. IN BA TUK K. VYAS V. SURAT MUNICIPALITY, ILR 1953 BOM 191 : AIR 1953 BOM 133 T HAT NO ERROR CAN BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF IT IS NOT MANIFEST OR SELF-EVIDENT AND REQUIRES AN EXAMINATION OR ARGUMENT TO ESTABLISH IT . THE COURT ADMITTED THAT THOUGH 30 M.A. NO.23/AGR/2012 SAID TEST MIGHT APPLY IN MAJORITY OF CASES SATISFAC TORILY, IT PROCEEDED TO COMMENT THAT THERE MIGHT BE CASES IN WHICH IT MIGHT NOT WOR K INASMUCH AS AN ERROR OF LAW MIGHT BE CONSIDERED BY ONE JUDGE AS APPARENT, PATEN T AND SELF- EVIDENT, BUT MIGHT NOT BE SO CONSIDERED BY ANOTHER JUDGE. THE COURT, T HEREFORE, CONCLUDED THAT AN ERROR APPARENT ON THE FACE OF THE RECORD CANNOT BE DEFINED EXHAUSTIVELY THERE BEING AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY N ATURE AND MUST BE LEFT TO BE DETERMINED JUDICIALLY ON THE FACTS OF EACH CASE. 9. A PATENT MANIFEST AND SELF-EVIDENT ERROR WHICH D OES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRE CTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPAREN T ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE FACE OF THE RECORD MEANS AN E RROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED LONG- DRAWN-OUT PROCESS O F REASONING ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR S HOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS O NE OF THE POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPAR ENT ON THE FACE OF THE RECORD. 31 M.A. NO.23/AGR/2012 10. IN THE LIGHT OF ABOVE DISCUSSION AND IF WE CONS IDER THE MISCELLANEOUS APPLICATION OF THE ASSESSEE, THE ASSESSEE WANTS THA T THE I.T.A.T. SHOULD REVIEW ITS ORDER WHICH WAS PASSED AFTER ELABORATE DISCUSSION. THE APEX COURT IN THE CASE OF CIT VS. KARAMCHAND THAPAR & BROS (P) LTD., 176 ITR 535 (SC) WHEREIN THE APEX COURT CLEARLY HELD THAT IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN ITS JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRI BUNAL. 11. THE HONBLE APEX COURT IN ANOTHER JUDGMENT IN T HE CASE OF HOMI JEHANGIR GHEESTA VS. CIT, 41 ITR 135 (SC) WHEREIN IT HAS BEE N HELD THAT IT IS NOT REQUIRED TO READ ORDER OF HE TRIBUNAL SENTENCE BY SENTENCE, THR OUGH A MICROSCOPE AS IT WERE, SO AS TO DISCOVER A MINOR LAPSE HERE OR AN INCAUTIOUS OPINION THERE TO BE USED AS A PEG ON WHICH TO HANG AN ISSUE OF LAW. IN THE ABOVE JUD ICIAL PRONOUNCEMENT, IT HAS ALSO BEEN HELD THAT FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD ALTHOUGH IT MAY BE AN ERROR OF JUDGEMENT. THE TRIBUNAL HAD NO JURI SDICTION UNDER SECTION 254(2) TO PASS THE SECOND ORDER. 32 M.A. NO.23/AGR/2012 12. ON PERUSAL OF THE ORDER OF I.T.A.T., WE NOTICE THAT THE I.T.A.T. HAS CONSIDERED ALL THE RELEVANT FACTS, CIRCUMSTANCES AN D EVEN HUMAN PROBABILITY OF THE ISSUE AND DECIDED THE CASE ON MERIT. THE SO-CALLED MISTAKES POINTED OUT IN THE MISCELLANEOUS APPLICATION ARE NOT THE MISTAKES WHIC H CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. THE ASSESSEE WANTS A SE COND ORDER ON THE SAME SET OF FACTS WHICH IS NOT IN THE POWER OF I.T.A.T. UNDER S ECTION 254(2) OF THE ACT. SINCE THERE IS NO APPARENT MISTAKE IN THE ORDER OF I.T.A. T., IN THE LIGHT OF THE FACT, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 13. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY