JCIT, Bijapur V. Shri. Sadashiva Kaigarika Tarbeti Shikshan Samsthe, Bagalkot Dist.

MA 273/BANG/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6979 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 24-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V ARAVIND STAN DING
• Assessee Lawyers: M V SESHACHALA
• Keywords: Additional evidence; Tax effect
• Section: 133A; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI A.K. GARODIA , ACCOUNTANT MEMBER M.P. NOS.271 TO 277/BANG/2017 [IN I TA NO S . 196 TO 202/BANG/2014] ASSESSMENT YEAR S : 2005 - 06 TO 2010 - 11 THE JOINT COMMISSIONER OF INCOME TAX, VIJAYAPUR RANGE, VIJAYAPUR. VS. SHRI SADASHIVA KAIGARIKA TARABETI SHIKSHAN SAMSTHE, A/P: BALLUR. TALUK: MUDHOL. DIST. BAGALKOT. PAN: AAAJS 4416J APPLICANT RESPONDENT APPLICANT BY : SHRI K.V. ARAVIND, STAN DING COUNSEL. RE SPONDENT BY : SHRI M.V. SESHACHALA, ADVOCATE. DATE OF HEARING : 20 .0 7 .201 8 DATE OF PRONOUNCEMENT : 24 .08.2018 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THESE ARE MISCELLANEOUS APPLICATIONS FILED BY T HE REVENUE U/S.254(2) OF THE INCOME TAX ACT, 1961 (THE ACT) AL LEGING THAT THERE ARE CERTAIN APPARENT ERRORS IN THE COMMON ORDER DATED 2 2.1.2015 PASSED BY THIS TRIBUNAL IN ITA NOS.196 TO 202/BANG/2014, RELA TING TO ASSESSMENT YEARS 2005-06 TO 2010-11 AND PRAYING FOR RECALLING OF THE ORDER OF THE TRIBUNAL AND FOR HEARING THE APPEALS AFRESH. 2. THE ABOVE APPEALS WERE APPEALS OF THE REVENUE AG AINST THE ORDER OF FIRST APPELLATE AUTHORITY, VIZ., CIT(A) CANCELLING IMPOSITION OF PENALTY ON THE M.P. NO.271/BANG/2017 PAGE 2 OF 12 ASSESSEE FOR THE FOLLOWING AYS EITHER U/S.271D OR 2 71E OF THE ACT, AS REFLECTED IN THE FOLLOWING CHART:- ITA NOS. A.Y. SECTION UNDER WHICH PENALTY LEVIED PENALTY AMOUNT NATURE 196/B/2014 2005-06 271D (VIOLATION OF 269SS) 6,50,000 ACCEPTING CASH LOAN FROM ONE SHRI ASHOK BHIMAPPA NAIK 197/B/2014 2006-07 271E (VIOLATION OF 269T) 3,50,000 REPAYING LOANS IN CASH TO SHRI ASHOK BHIMAPPA NAIK 198/B/2014 2007-08 271E (VIOLATION OF 269T) 6,75,000 199/B/2014 2007-08 271D (VIOLATION OF 269SS) 6,45,000 ACCEPTING CASH LOAN FROM SHRI ASHOK BHIMAPPA NAIK 200/B/2014 2008-09 271D (VIOLATION OF 269SS) 5,00,000 201/B/2014 2009-10 271D (VIOLATION OF 269SS) 6,40,000 202/B/2014 2010-11 271D (VIOLATION OF 269SS) 11,83,000 3. THE ASSESSEE IS A SOCIETY RUNNING EDUCATION INST ITUTION FOR B.ED. & D.ED. COURSES. THERE WAS A SURVEY U/S.133A OF THE ACT CARRIED OUT AT THE OFFICE OF THE ASSESSEE BY THE REVENUE ON 6.10.2010. THE CASE OF THE REVENUE WAS THAT THE DOCUMENTS IMPOUNDED AT THE TIM E OF SURVEY SHOWED THAT THERE WERE ACCEPTANCE AND REPAYMENT OF LOANS B Y THE ASSESSEE IN CASH BEYOND THE PRESCRIBED LIMIT U/S.269SS AND 269T OF THE ACT AND IN VIOLATION OF THOSE PROVISIONS WHICH CALLS FOR IMPOS ITION OF PENALTY U/S.271D AND 271E OF THE ACT, RESPECTIVELY. ACCORDING TO T HE REVENUE, IN THE PENALTY PROCEEDINGS U/S.271D AND 271E OF THE ACT BEFORE THE OFFICER IMPOSING PENALTY, THE ASSESSEE DID NOT TAKE ANY STAND THAT A S PER THE IMPOUNDED M.P. NO.271/BANG/2017 PAGE 3 OF 12 DOCUMENTS THERE WAS NO ACCEPTANCE OR REPAYMENT OF L OANS IN CASH. EVEN IN THE ORIGINAL GROUNDS OF APPEAL FILED BEFORE THE CIT(A) SUCH A STAND WAS NOT TAKEN BY THE ASSESSEE. HOWEVER, A STAND WAS TA KEN FOR THE FIRST TIME IN THE COURSE OF HEARING BEFORE THE FIRST APPELLATE AU THORITY BY FILING REVISED CONSOLIDATED RECEIPTS AND PAYMENT ACCOUNT BASED ON THE IMPOUNDED DOCUMENTS THAT THERE WAS NO ACCEPTANCE OF LOAN AND ITS REPAYMENT IN CASH SO AS TO ATTRACT THE PROVISIONS OF SEC.269SS AND 26 9T OF THE ACT. SINCE THE REVISED CONSOLIDATED RECEIPTS AND PAYMENTS FILED BY THE ASSESSEE BASED ON THE IMPOUNDED DOCUMENTS CONSTITUTED ADDITIONAL E VIDENCE FILED BEFORE THE FIRST APPELLATE AUTHORITY, THE FIRST APPELLATE AUTHORITY CALLED FOR A REMAND REPORT FROM THE OFFICER IMPOSING PENALTY ON THE COR RECTNESS OF THE CLAIM MADE BY THE ASSESSEE. THE OFFICER IMPOSING PENALTY IN HIS REMAND REPORT ON THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BE FORE THE FIRST APPELLATE AUTHORITY STATED AS FOLLOWS:- THE CONTENTION OF THE ASSESSEE WAS PURSUED ALONG WITH IMPOUNDED MATERIALS AND THE SUBMISSIONS MADE BEFORE YOUR GOODSELF AND THE FINDINGS ARE AS UNDER- (A) THE EXACT DATE OF RECEIVING AND REPAYMENT OF L OAN, IS NOT ASCERTAINABLE FROM THE MATERIAL IN POSSESSION OF TH E DEPARTMENT. AGAIN THIS IS EVIDENCED BY THE ORDER PASSED BY THE THEN AO LEVYING PENALTY WHEREIN NO EXACT DATE OF RECEIVING AND PAYMENT OF LOAN HAS BEEN MENTIONED IN THE PENALTY ORDER FOR ALL THE AYS. (B) THE BOOKS OF ACCOUNT PREPARED FRESH AND CLAIME D TO BE CORRECT BY THE ASSESSEE ARE TEST CHECKED FOR THEIR CORRECTNESS VIS- -VIS IMPOUNDED MATERIALS AND ARE FOUND TO BE IN OR DER. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE APPE AL MAY BE DECIDED ON MERITS. 4. ON A CONSIDERATION OF THE ABOVE REMAND REPORT OF THE OFFICER IMPOSING PENALTY, THE FIRST APPELLATE AUTHORITY VIZ ., CIT(A) CANCELLED THE ORDERS IMPOSING PENALTY, HOLDING THAT THERE WAS NOT HING TO SHOW IN THE M.P. NO.271/BANG/2017 PAGE 4 OF 12 IMPOUNDED DOCUMENTS THAT THE ASSESSEE ACCEPTED OR R EPAID LOANS IN CASH CONTRARY TO THE PROVISIONS OF SEC.269SS AND 269T OF THE ACT. 5. THE REVENUE FILED APPEAL BEFORE THE TRIBUNAL AGA INST THE ORDER OF THE FIRST APPELLATE AUTHORITY AND THE TRIBUNAL IN ITS O RDER DATED 22.1.2015 WAS PLEASED TO UPHOLD THE ORDER OF THE FIRST APPELLATE AUTHORITY, HOLDING AS FOLLOWS:- 12. A READING OF THE REMAND REPORT CLEARLY SHOWS T HAT THE AO HAD VERIFIED THE REVISED FINANCIAL STATEMENTS FURNI SHED BY THE ASSESSEE BEFORE THE CIT(A). IN THE REMAND PROCEED INGS IT IS MENTIONED THAT THE REVISED STATEMENTS WERE TALLYING WITH THE BOOKS OF ACCOUNT AND OTHER IMPOUNDED MATERIAL. IT IS ALSO MENTIONED THAT DATE OF RECEIPT AND PAYMENT OF CASH LOAN, IF ANY, WAS NOT ASCERTAINABLE. FOR LEVY OF PENALTY U/S. 27 1D AS WELL AS 271E, IT IS REQUIRED FOR THE AO TO ESTABLISH THAT A SSESSEE HAD ACCEPTED OR REPAID A LOAN OR DEPOSIT IN CONTRAVENTI ON OF SECTION 269SS/269T, AS THE CASE MAY BE. THIS, IN TURN, REQ UIRES TO BE SHOWN THAT ASSESSEE HAD ACCEPTED LOAN OR DEPOSIT IN CASH WHICH IS RS.20,000 OR ABOVE, OR REPAID SIMILAR AMOUNT IN CAS H. WITHOUT THE DETAILS REGARDING RECEIPTS & PAYMENT, IN OUR OP INION, AO COULD NOT HAVE PROCEEDED SIMPLY BASED ON THE FIGURE S GIVEN IN THE ORIGINAL FINANCIAL STATEMENTS FILED BY THE ASSE SSEE. NOT EVEN A SINGLE INSTANCE HAS BEEN SHOWN BY THE AO FROM THE R ECORDS THAT ANY AMOUNT WAS ACCEPTED BY THE ASSESSEE AS LOAN OR REPAID BY THE ASSESSEE IN CASH, IN EXCESS OF THE LIMITS LAID DOWN U/S. 269SS/269T OF THE ACT. IN SUCH CIRCUMSTANCES, WE A RE OF THE OPINION THAT THE LD. CIT(APPEALS) WAS JUSTIFIED IN DELETING THE PENALTIES LEVIED ON THE ASSESSEE. WE, THEREFORE, D O NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT(APPEALS). 6. IN THIS MISCELLANEOUS APPLICATION, THE REVENUE H AS ALLEGED THAT IN THE PERIOD BETWEEN THE FILING OF THE APPEALS BY THE ASS ESSEE BEFORE THE FIRST APPELLATE AUTHORITY AND THE FILING OF ADDITIONAL EV IDENCE BEFORE THE SAID AUTHORITY, THE ASSESSEE HAS TAMPERED WITH THE DOCUM ENTS THAT WERE IMPOUNDED IN THE COURSE OF SURVEY U/S.133A OF THE A CT BY SUBSTITUTING DOCUMENTS IMPOUNDED WITH DOCUMENTS THAT WOULD SUPPO RT ITS CLAIM THAT M.P. NO.271/BANG/2017 PAGE 5 OF 12 THERE WAS NO ACCEPTANCE OF LOAN IN CASH IN VIOLATIO N OF THE PROVISIONS OF SEC.269SS AND 269T OF THE ACT. THE DATE ON WHICH T HE REVENUE CAME TO KNOW ABOUT SUCH TAMPERING IS NOT SPELT OUT IN THE M ISCELLANEOUS APPLICATION. THE STAND TAKEN BY THE REVENUE IN THI S REGARD IS REPRODUCED FOR THE SAKE OF READY REFERENCE:- 3. SUBSEQUENT TO FILING OF APPEAL BEFORE THE HON' BLE TRIBUNAL, IT WAS NOW DISCOVERED THAT THE IMPOUNDED BOOKS OF A CCOUNT HAVE BEEN TAMPERED WITH. THE DETAILS OF LAPSES FOUND ARE SUBMITTED BELOW:- (1) THE BOOK IMPOUNDED AT SERIAL NO.2 NAMED 'D.ED - INCOME & EXPENDITURE BOOK' HAS BEEN REPLACED WITH ANOTHER BOOK NAMED 'ASSIGNMENT', WHEREIN, NO INVENTORY MARK OF THE ITI IS FOUND. (2) THE BOOK NAMED 'DINACHARI (2007)' (DAY BOOK), IMPOUNDED AT SERIAL NO.10, HAS BEEN REPLACED WITH A 'SUN SIGN DIARY', WITH NO IDENTIFICATION MARK OF ITI ON PAGE NO.5. THIS NEW BOOK IS A CALENDAR DIARY OF 2011 AN OBVIOUS INDICATION OF THE REPLACEMENT AS THE SURVEY TOOK PLACE IN OCTOBER, 2010. (3) THE BOOK IMPOUNDED AT SNO.7, 'TOTAL INCOME 86 EXPENDITURE BOOK', WHILE THE IDENTIFICATION MARK OF THE ITI IS FOUND AT PAGE NO.9, THE PAGES HAVE BEEN TAMPERED WITH, AS THE BOOK HAS BEEN OPENED AND STAPLED, THE PAGES ARE NOT IN SERIAL NUMBER AND PAGES ARE NOT OF ONE COLOUR. THIS STARTLING DISCOVERY CLEARLY INDICATES THAT T HE IMPOUNDED BOOKS HAVE BEEN REPLACED/TAMPERED TO REMO VE ALL EVIDENCE OF HANDLOANS FROM AND TO CHAIRMAN. THESE H ANDLOANS ARE IN THE AUDITED ACCOUNTS, AUDITED BY THE CHARTER ED ACCOUNTANT SRI. D.V. DAGA, MEMBERSHIP NO.213650, WHICH WERE FI LED ALONG WITH THE RETURN OF INCOME, AFTER THE SURVEY. THE CH ARTERED ACCOUNTANT SRI.D.V. DAGA AND SRI.BHIMAPPA B CHANDAR GI, ACCOUNTANT OF THE ASSESSEE, MET THE UNDERSIGNED ON 23.01.2015 AND EXPLAINED THAT THE BOOKS/DOCUMENTS IMPOUNDED DU RING THE COURSE OF SURVEY WERE THE PRIMARY BASIC ACCOUNTS MA INTAINED BY THE PRINCIPAL. THESE WERE THEN WRITTEN FAIR BY THE ACCOUNTANT M.P. NO.271/BANG/2017 PAGE 6 OF 12 SRI.B.B. CHANDARGI AND THEN AUDITED BY THE CHARTERE D ACCOUNTANT SRI.D.V. DAGA. THE FINAL BOOKS OF ACCOUNT BASED ON THESE CARRIED THE SIGNATURES OF THE ACCOUNTANT AND THE AUDITOR. T HESE WERE NOT FOUND DURING THE SURVEY. FROM THIS IT IS CLEAR THAT THE ASSESSEE'S CLAIM THAT PROPER BOOKS OF ACCOUNT WERE NOT BEING M AINTAINED IS INCORRECT. THE AUDITED STATEMENT OF ACCOUNTS ALONG WITH THE AUDIT REPORT BY A CHARTERED ACCOUNTANT ARE FILED WITH THE RETURNS ARE AS BACK AS 2005, 2006, 2007, 2008, 2009 AND 2010. THE FINAL BOOKS OF ACCOUNT WERE PREPARED BY SRI. CHANDRAGI, ACCOUNT ANT AND AUDITED BY SRI. D.V. DAGA, CA EVERY YEAR. THESE BOO KS WERE SIGNED BY THE PRINCIPAL AND THE CHARTERED ACCOUNTAN T WHO HAD AUDITED THE ACCOUNTS. THE FINAL BOOKS OF ACCOUNTS A RE BEING MAINTAINED EVERY YEAR FROM A.Y. 2005-06 ONWARDS. TH E CLAIM OF THE ASSESSEE ABOUT NOT MAINTAINING REGULAR BOOKS OF ACCOUNT HAS BEEN MADE JUST TO JUSTIFY ITS NEED FOR FILING FRESH ACCOUNTS. THE FACT OF THE REPLACEMENT/TAMPERING OF THE PRIM ARY BASIC BOOKS, SUGGESTS THAT THE EVIDENCES THAT SUPPORT THE AUDITED ACCOUNTS HAS BEEN PURPOSELY DESTROYED TO FRAUDULENT LY CLAIM THE REVISED ACCOUNTS AS CORRECT AND THEREBY CHANGE THE VERY FACTS OF THE CASE. THIS FACT WAS NOT KNOWN WHEN THE APPEAL W AS FILED. THE MATTER NEEDS TO BE REMANDED BACK SO THAT A DETAILED EXAMINATION CAN BE MADE. IN THE LIGHT OF THE ABOVE LAPSES, I AM SUBMITTING M ISCELLANEOUS APPLICATION ON THE FOLLOWING GROUNDS:- (1) IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHER EIN, IT HAS BEEN FOUND THAT THE EVIDENCE GATHERED IN THIS CASE HAS BEEN DESTROYED FRAUDULENTLY BY REPLACING/TAMPERING OF SO ME PRIMARY BOOKS OF ACCOUNT WHICH WERE IMPOUNDED DURIN G THE COURSE OF SURVEY UNDER SECTION 133A OF THE I.T. ACT , 1961. (2) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE REPLACEMENT/TAMPERING OF PRIMARY BOOKS OF ACCOUNT C LEARLY INDICATES THAT THE EVIDENCE COLLECTED DURING THE CO URSE OF SURVEY WHICH SUPPORTED THE ASSESSING OFFICER AS WEL L AS JOINT CIT'S FINDINGS ARRIVED AT IN ASSESSMENT ORDER AND PENALTY ORDERS HAS BEEN FRAUDULENTLY DESTROYED FOR THE PURPOSE OF PUTTING FORTH A NEW EXPLANATION OF FACTS WHICH IS NOT IN ACCORDANCE WITH THE AUDITED ACCOUNTS FILED W ITH THE M.P. NO.271/BANG/2017 PAGE 7 OF 12 RETURN OF INCOME. THIS FACT OF REPLACEMENT OF IMPOU NDED BOOKS OF ACCOUNT HAS NOT BEEN EXAMINED BY THE JOINT CIT OR THE CIT(A) AND AS SUCH, THE ORDER PASSED BY THE CIT (A) MAY BE SET ASIDE IN VIEW OF THE NEW FINDINGS OF THIS NE W DISCOVERY. A DETAILED FACTS OF THE CASE ARE ENCLOSED. THEREFORE, IT IS RESPECTFULLY PRAYED THAT THE HON'B LE TRIBUNAL MAY RECONSIDER THE CASE BASED ON THE FACTS DISCOVERED A FTER FILING OF APPEAL AND THE FACTS OF THE CASE. 7. THE ADMITTED CASE OF THE REVENUE IN THIS MA IS T HAT AT THE TIME WHEN THE APPEAL WAS HEARD THEY DID NOT MAKE ANY SUBMISSI ON ABOUT TAMPERING OF THE IMPOUNDED RECORDS. THE APPEALS WERE HEARD B Y THE ITAT ON 4.12.2014 AND THE ORDERS IN THE APPEAL WAS PRONOUNC ED ON 22.1.2015. ON 10.3.2015, AFTER THE ORDER DATED 22.1.2015 PASSED B Y THE TRIBUNAL, THE REVENUE LODGED A COMPLAINT WITH THE POLICE ALLEGING TAMPERING OF THE IMPOUNDED DOCUMENTS. EVEN PRIOR TO THE HEARING OF THE APPEAL I.E., AS EARLY AS 9.5.2014 THE CIT, BELAGAVI VIDE LETTER DAT ED 9.5.2014 ADDRESSED TO THE JCIT, VR VIJAYPUR, WHO WAS THE APPELLANT IN THE APPEALS BEFORE THE TRIBUNAL, INTIMATED THAT IT WAS NOT ASCERTAINABLE A S TO WHO AND WHEN EXACTLY REPLACEMENT OF BOOKS HAD TAKEN PLACE. IN F ACT IN PAGE-3 OF THE POLICE COMPLAINT DATED 10.3.2015 IT HAS BEEN SPECIF ICALLY STATED SO. THEREFORE, THE REVENUE DID NOT BRING TO THE NOTICE OF THE TRIBUNAL ANY OF THE FACTS WITH REGARD TO ALLEGED TAMPERING DESPITE ITS KNOWLEDGE THAT THERE WERE ALLEGATIONS OF TAMPERING. 8. THE LEARNED COUNSEL FOR THE REVENUE REITERATED B EFORE US THE STAND TAKEN BY THE REVENUE IN THE APPLICATION FOR RECTIFI CATION AND REITERATED THE PRAYER MADE BY THE REVENUE IN THIS APPLICATION. TH E PRAYER OF THE REVENUE IN THIS REGARD HAS BEEN EXTRACTED IN THE EARLIER PA RT OF THIS ORDER. IN SHORT, THE PRAYER IS THAT THE ORDER OF THE TRIBUNAL SHOULD BE RECALLED AND MODIFIED BY SETTING ASIDE THE ORDER OF THE CIT(A) CANCELLING PENALTIES IMPOSED ON THE M.P. NO.271/BANG/2017 PAGE 8 OF 12 ASSESSEE AND THE ISSUE OF LEVYING PENALTY SHOULD BE REMANDED TO THE OFFICER IMPOSING PENALTY FOR CONSIDERATION AFRESH I N THE LIGHT OF THE ALLEGATION OF TAMPERING WITH THE IMPOUNDED DOCUMENTS. 9. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHE R HAND MADE THE FOLLOWING SUBMISSIONS:- (I) HE POINTED OUT THAT THAT TAX EFFECT IN ALL THES E APPEALS IS LESS THAN RS.20 LACS AND THE LIGHT OF THE RECENT CBDT CI RCULAR NO.3/2018 DATED 11.07.2018, APPEALS BEFORE THE TRIB UNAL SHOULD NOT BE FILED BY THE REVENUE WHERE THE TAX EF FECT IN THE APPEAL IS LESS THAN RS.20 LACS. THE TAX EFFECT IN EACH OF THE APPEALS IS ADMITTEDLY BELOW THE MONETARY LIMIT OF R S.20 LACS PRESCRIBED IN THE CIRCULAR OF THE CBDT. THE CIRCUL AR SAYS THAT IT APPLIES TO ALL PENDING APPEALS ALSO. THERE FORE, EVEN ASSUMING THAT THE ORDER OF THE TRIBUNAL IS RECALLED , THE APPEALS OF THE REVENUE WILL NOT BE MAINTAINABLE ON THE GROUND OF LOW TAX EFFECT AND THEREFORE THE PRAYER FOR RECA LLING OF THE ORDER OF THE TRIBUNAL, EVEN IF ACCEPTED, WILL ULTIM ATELY RESULT THE APPEALS OF THE REVENUE BEING DISMISSED FOR LOW TAX EFFECT AS NOT MAINTAINABLE. IN THE CIRCUMSTANCES, THE MA SHOULD BE DISMISSED AS INFRUCTUOUS. (II) IT WAS SUBMITTED THAT THE ALLEGATION OF THE RE VENUE ABOUT TAMPERING OF IMPOUNDED DOCUMENTS WAS NEVER PUT FORT H WHEN THE APPEALS OF THE REVENUE WERE HEARD BY THE TRIBUN AL AND MAKING SUCH ALLEGATIONS BY WAY OF MISCELLANEOUS PET ITION AND ALLEGING THAT THERE WAS MISTAKE APPARENT ON THE FAC E OF THE ORDER OF THE TRIBUNAL IS UNSUSTAINABLE. THE ORDER OF THE TRIBUNAL ON THE FACTS PLACED WHEN THE APPEAL WAS HE ARD DID NOT SUFFER FROM ANY MISTAKE APPARENT ON THE FACE OF THE ORDER M.P. NO.271/BANG/2017 PAGE 9 OF 12 AND THEREFORE THE APPLICATION U/S.254(2) OF THE ACT IS NOT MAINTAINABLE. U/S.254(2) OF THE ACT, THE TRIBUNAL HAS LIMITED POWER OF RECTIFYING MISTAKE APPARENT ON THE FACE OF THE RECORD. THERE WAS NO SUCH MISTAKE POINTED OUT IN T HE APPLICATION FOR RECTIFICATION. ON THE OTHER HAND, IT HAS BEEN ADMITTED BY THE REVENUE THAT THERE WAS NO MISTAKE I N THE ORDER OF THE TRIBUNAL BUT FACTS THAT TRANSPIRED SUB SEQUENT TO THE PASSING OF THE ORDER OF THE TRIBUNAL SHOWED THA T THE CONCLUSIONS OF THE TRIBUNAL CONFIRMING THE ORDER OF THE CIT(A) CALLED FOR A REVIEW. U/S.254(2) OF THE ACT, THE TR IBUNAL DOES NOT HAVE POWER TO REVIEW ITS OWN ORDER. THE REVENU E CANNOT IN THE GARB OF A MISCELLANEOUS APPLICATION U/S.254( 2) OF THE ACT, SEEK REVIEW OF THE ORDER OF THE TRIBUNAL. (III) THE MA IS SILENT AS TO WHEN SOME OF THE IMPOU NDED DOCUMENTS WERE TAMPERED AND THAT IT WAS THE ASSESSE E WHO WAS RESPONSIBLE FOR THE ALLEGED TAMPERING. IN ANY EVENT THERE IS NO CONCLUSIVE EVIDENCE TO SHOW THAT THERE WAS IN FACT TAMPERING OF THE RECORDS AND THEREFORE THE MA FILED ON THE GROUND THAT THERE HAD BEEN TAMPERING OF DOCUMENTS I S MISCONCEIVED. FINALLY IT WAS POINTED OUT THAT THE CBI/ACB/BANGALORE IN THE REPORT OF INVESTIGATION CO NDUCTED IN RC 16(A)/2016-CBI/ACB/BANGALORE HAS FILED ITS FINAL REPORT DATED 25.1.2018 IN THE DISTRICT COURT, DHARWAD, IN CR NO.567/18 WHEREIN THEY HAVE RECOMMENDED CLOSURE OF THE CASE ON THE GROUND THAT INVESTIGATION COULD NOT BRI NG OUT CREDIBLE EVIDENCE TO IDENTIFY THE PERSONS RESPONSIB LE FOR TAMPERING OF RECORDS AND OTHER FACTS SUCH AS WHEN, WHERE, WHO AND HOW IT WAS DONE. A COPY OF THE REPORT WAS F ILED BEFORE THE COURT. M.P. NO.271/BANG/2017 PAGE 10 OF 12 10. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS. THE POWER OF THE TRIBUNAL TO RECALL OR RECTIFY ITS ORDE R U/S.254(2) OF THE ACT CAN BE INVOKED ONLY WHEN IT IS SHOWN THAT THERE HAS BEEN E RROR APPARENT ON THE FACE OF THE ORDER OF THE TRIBUNAL. ADMITTEDLY, WHE N THE APPEAL WAS HEARD BY THE TRIBUNAL NO ALLEGATION OF TAMPERING OF RECOR DS WAS EVER PUT FORTH ON BEHALF OF THE REVENUE. WHEN THE APPEAL WAS HEARD B Y THE TRIBUNAL ON 4.12.2014, THERE WAS ALREADY CORRESPONDENCE REGARDI NG TAMPERING OF RECORDS BUT STILL NOTHING WAS BROUGHT TO THE NOTICE OF THE TRIBUNAL WHEN THE APPEAL WAS HEARD. AS RIGHTLY POINTED OUT BY THE LE ARNED COUNSEL FOR THE ASSESSEE, THE MA DOES NOT DISCLOSE AS TO WHEN THE T AMPERING WAS DISCOVERED AND AS TO WHY THE ALLEGATIONS REGARDING TAMPERING WERE NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL WHEN THE APPE ALS WERE HEARD BY THE TRIBUNAL. BESIDES THE ABOVE, THE POSITION AS ON TO DAY IS THAT THERE IS NO MATERIAL TO SHOW THAT THERE WAS IN FACT TAMPERING O F IMPOUNDED MATERIAL AND THEREFORE THE CONCLUSION OF THE CIT(A) THAT THE RE WAS NO ACCEPTANCE OF LOANS IN CASH OR REPAYMENT OF LOANS IN CASH IN THE CASE OF THE ASSESSEE VIOLATING THE PROVISIONS OF SEC.269SS & 269T OF THE ACT HOLDS GOOD. FURTHER THERE IS ALSO NO EVIDENCE TO SHOW AS TO WHO WAS RESPONSIBLE FOR TAMPERING OF THE RECORDS. IN THIS SCENARIO, IT IS DIFFICULT TO PROCEED ON THE ASSUMPTION THAT THE FINDINGS OF THE CIT(A) THAT THE RE WAS NO ACCEPTANCE OF LOANS IN CASH OR REPAYMENT OF LOANS IN CASH IN THE CASE OF THE ASSESSEE VIOLATING THE PROVISIONS OF SEC.269SS & 269T OF THE ACT EMANATING FROM THE IMPOUNDED DOCUMENTS IS INCORRECT. WE ALSO AGREE WI TH THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THE GA RB OF A MISCELLANEOUS APPLICATION U/S.254(2) OF THE ACT, ONE CANNOT SEEK REVIEW OF THE ORDER OF THE TRIBUNAL. THE TRIBUNAL DOES NOT HAVE POWERS TO REV IEW ITS OWN ORDERS U/S.254(2) OF THE ACT AND THE POWER U/S.254(2) OF T HE ACT IS ONLY TO RECTIFY MISTAKES APPARENT ON THE FACE OF THE RECORD. THE A LLEGATIONS IN THE MA AND THE MATERIAL ON RECORD DO NOT SUGGEST THAT THERE WA S ANY MISTAKE APPARENT M.P. NO.271/BANG/2017 PAGE 11 OF 12 ON THE FACE OF THE ORDER OF THE TRIBUNAL. THEREFOR E, WE ARE OF THE VIEW THAT THE PRESENT MA IS DEVOID OF ANY MERIT. 11. BESIDES THE ABOVE, WE ALSO FIND THAT THE TAX EF FECT IN THESE APPEALS ARE BELOW THE MONETARY LIMIT LAID DOWN IN THE RECEN T CIRCULAR NO.3/2018 DATED 11.07.2018 AND WOULD THEREFORE NEED TO BE WIT HDRAWN BY THE REVENUE. EVEN IF THE ORDER OF THE TRIBUNAL IS RECAL LED FOR FRESH ADJUDICATION, THE APPEALS OF THE REVENUE WOULD HAVE TO BE DISMISS ED AS NOT MAINTAINABLE. THEREFORE, EVEN ON THIS GROUND THIS MA IS LIABLE TO BE DISMISSED. 12. WE HOWEVER MAKE IT CLEAR THAT THE REVENUE IS NO T PRECLUDED FROM PURSUING ANY OTHER REMEDY, IT MAY HAVE IN LAW, IN T HE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. OUR CONCLUSIONS ARE BAS ED ONLY ON THE LIMITED SCOPE OF POWERS OF THE TRIBUNAL U/S.254(2) OF THE A CT. 13. FOR THE REASONS GIVEN ABOVE, WE FIND NO MERITS IN THESE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE AND THE SAME ARE DISMISSED. 14. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS A RE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF AUGUST, 2018. SD/- SD/- ( A.K. GARODIA ) ( N.V. VASUDEVAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 24TH AUGUST, 2018. / D ESAI S MURTHY / M.P. NO.271/BANG/2017 PAGE 12 OF 12 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.