ASST CIT CEN CIR-1, V. GOPAL SHYAM & BROS,

MA 284/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9498 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2002-2003
• Appeal Filed On: 11-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR K SHIVARAM
• Keywords: Question of law; Tax effect; Revised return
• Section: 5(2); 153A; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE S/SHRI DINESH KUMAR AGARWAL, JM D. KARUNAKARA RAO, AM M.A. NO. 284/MUM/2012 ARISING OUT OF ITA NO. 707/MUM/2010 ASSESSMENT YEAR 2002-03 M.A. NO. 285/MUM/2012 ARISING OUT OF ITA NO. 278/MUM/2010 ASSESSMENT YEAR 2004-05 M.A. NO. 286/MUM/2012 ARISING OUT OF ITA NO. 279/MUM/2010 ASSESSMENT YEAR 2005-06 M.A. NO. 287/MUM/2012 ARISING OUT OF ITA NO. 280/MUM/2010 ASSESSMENT YEAR 2006-07 M.A. NO. 288/MUM/2012 ARISING OUT OF ITA NO. 708/MUM/2010 ASSESSMENT YEAR 2006-07 ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIR. -1, 2 ND FLOOR, PAWAR INDUSTRIAL ESTATE, EDULJI ROAD, CHARAI, THANE 400 601. M/S GOPAL SHYAM & BROS., BELOW LIC, KARNIK ROAD, KALYAN(W), MUMBAI 421 301. PAN AABFG0402H APPLICANT V/S RESPONDENT DATE OF HEARING : 09- 11-2012 DATE OF PRONOUNCEMENT : 23-11-201 2 APPLICANT BY : DR. K. SHIVARA M & SHRI RAHUL HAK ANI RESPONDENT BY : SHRI MANOJ KUM AR O R D E R PER DINESH KUMAR AGARWAL (JM) ALL THESE MISC. PETITIONS FILED BY THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY THE TRIBUNAL IN ITA NOS. 707 & 708/MUM/2010 FOR ASSESSMENT YEARS 2002-03 & 2006-07, ITA NOS. 278, 2 79 & 280/MUM/2010 FOR ASSESSMENT YEARS 2004-05 TO 2006-07. SINCE FACT S ARE IDENTICAL AND ISSUE MA NOS.284 TO 288/M/12 2 INVOLVED IS COMMON, ALL THESE MISC. PETITIONS FILED BY THE REVENUE ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE . 2. THE MISC. PETITION DTD. 7-5-2012 FILED BY THE R EVENUE READS AS UNDER:- THE HONBLE ITAT G BENCH MUMBAI VIDE COMMON ORDER NO. ITA NOS. 278TO280/ MUM/2010 & 707 & 708/MUM 2010 DATED 29/10 /2010 HAS DISMISSED THE APPEAL FILED BY THE DEPARTMENT FOR A. Y. 2006-07. HOWEVER IT IS SEEN THAT WHILE DISPOSING OF THE APPEAL FILED BY TH E REVENUE, THE HONBLE TRIBUNAL HAS NOT CONSIDERED THE FOLLOWING BINDING J UDICIAL PRECEDENTS:- SHERATON APPAREALS V. ACIT (2002) 256 ITR 20 (BOM ) LNDUS ENGINEERING CO. V. ACIT (2010) 323 TR 302 ( BOM) THERE IS ANOTHER DECISION IN THE CASE OF ACIT V. KI RIT DAHYABHAI PATEL (2009) 121 LTD 159 (AHD.) (TM) DEALING WITH APPLICABILITY OF EXPLANATION 5 TO SECTION 271(1)(C) WHICH WAS DECIDED FOLLOWING INTERALIA THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SHERATON APPARELS BUT WHI CH NOT BROUGHT TO THE KIND NOTICE OF THE HONBLE TRIBUNAL AT THE TIME OF HEARI NG. THE SAID THIRD MEMBER DECISION HAS BEEN FOLLOWED BY VARIOUS BENCHES OF TH E TRIBUNAL IN DCIT V. OMKARESHWAR R. KALANTRI & ORS 42 DTR (PUNE) (TRIB) 489, AJIT B. ZOTA V. ACIT 40 SOT 543 (MUM) & MAHENDRA MITTAL V. ACIT 132 LTD 80 (MUM). IN VIEW OF THESE BINDING PRECEDENTS AND OTHER DECIS IONS REFERRED ABOVE THE ORDER UNDER REFERENCE PASSED BY THE HONBLE TRIBUNA L SUFFERS FROM A MISTAKE APPARENT FROM THE RECORD WHICH NEEDS TO BE RECTIFIE D U/S. 254 (2) OF THE ACT. CONSIDERING THE FACTS OF THE CASE AS DISCUSSED ABOV E THIS MISCELLANEOUS APPLICATION IS BEING MADE FOR RESTORATION OF THIS A PPEAL FOR A.Y. 2002-03. FURTHER IT IS PRAYED THAT THE COMMON ORDER OF THE H ONBLE ITAT PASSED VIDE NO.(S) 707 &708/MUM/10 FOR THE A.Y. 2002-03 & 2006- 07 AND 278, 279 & 280/MUM/10 FOR THE A.Y.(S) 2004-05 TO 2006-07 DATED 29/10/2010 BE SET ASIDE AND THE APPEAL FILED BY THE REVENUE BE RESTOR ED. 3. AT THE TIME OF HEARING THE LD. D.R. WHILE RELYI NG ON THE MISC. PETITION FILED BY THE REVENUE SUBMITS THAT NON-CONSIDERATION OF THE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT WOULD CONSTITUTE A RECTIFIABLE MISTAKE AND FOR THIS PROPOSITION THE RELIANCE WAS ALSO PLACED O N THE DECISION OF THE HONBLE SUPREME COURT IN ACIT VS. SAURASHTRA KUTCH STOCK EX CHANGE LTD. (2008) 305 ITR 227 (SC), SUHRID GEIGY LTD. V. COMMISSIONER OF SURTAX (1999) 237 ITR 834 (GUJ.) AND CIT VS. PARK TRUST (2012) 18 TAXMANN.COM 135 (MAD.). HE FURTHER SUBMITS THAT SINCE THE ASSESSEE HAS NOT MADE THE DI SCLOSURE ACCORDING TO MA NOS.284 TO 288/M/12 3 EXPLANATION 5(2) OF SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT), THEREFORE, IN VIEW OF THE DECISION IN ACIT VS. KIRI T DAHYABHAI PATEL (2009) 121 ITD 159(AHD.)(TM) AND OTHER DECISIONS AS STATED IN THE MISC. PETITION, THE ORDER PASSED BY THE TRIBUNAL WITHOUT CONSIDERING TH OSE BINDING DECISIONS SUFFERS FROM MISTAKE APPARENT FROM RECORD WHICH NEE DS TO BE RECTIFIED U/S 254(2) OF THE ACT AND, THEREFORE, THE ORDER PASSED BY THE TRIBUNAL BE RECALLED. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE AT THE OUTSET SUBMITS THAT IN THE MISC PETITIONS FILED BY THE ASS ESSEE, IT HAS BEEN CLEARLY STATED THAT BINDING PRECEDENTS WERE NOT CITED AT TH E TIME OF HEARING, THEREFORE, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AN D THE MISC. PETITIONS FILED BY THE REVENUE DESERVES TO BE DISMISSED AND FOR THIS P ROPOSITION THE RELIANCE WAS ALSO PLACED IN CIT VS. ITAT & ORS (2006) 195 TAXATI ON 288 (DEL.) WHEREIN IT HAS BEEN HELD THAT IF THE TRIBUNAL FAILS TO NOTICE A DECISION NOT CITED BY THE PARTIES IT WILL NOT AMOUNT TO MISTAKE APPARENT ON R ECORD. 5. IN HIS WRITTEN SUBMISSIONS, THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT NON-CONSIDERATION OF THE DECISION OF H ONBLE BOMBAY HIGH COURT IN SHERATON APPARELS VS. ACIT (2002) 256 ITR 20 (BO M) AND INDUS ENGINEERING CO. AND ANR. VS. ACIT (INVESTIGATION) A ND OTHERS (2010) 323 ITR 302 NOT CITED BY EITHER PARTY WILL NOT AMOUNT TO MI STAKE APPARENT ON RECORD AS THE RATIO LAID DOWN IN THOSE CASES WOULD NOT APP LY TO THE FACTS AND ISSUE INVOLVED IN THE PRESENT CASE. THE DECISION IN SHERA TON APPARELS (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE FOR FOL LOWING REASONS: A) THE ISSUE INVOLVED IN ABOVE CASE WAS RELATING TO CLAUSE (1) OF EXPLANATION 5 TO S. 271(1 )(C) WHEREAS IN THE FACTS OF THE PRESENT CASE IMMUNITY WAS INVOKED UNDER CLAUSE (2) OF EXPLANATIO N 5TO S. 271(1)(C). IN FACT THE ISSUE WAS REFRAMED BY THE HIGH COURT AND WAS MA DE LIMITED TO THE ISSUE WHETHER DIARIES CAN BE REGARDED AS BOOKS OF ACCOUNT S. THE HIGH COURT HAS MA NOS.284 TO 288/M/12 4 APPRECIATED ONLY SCOPE OF CLAUSE (1) AND HAS NOT GI VEN ANY FINDING ON CLAUSE (2). B) ALSO THE ITAT IN ITS ORDER IN PARA 13 PAGE 11 HA S HELD THAT IT HAS CONSIDERED CASE LAW IN DEPT GROUND OF APPEAL I.E. T HE SUPREME COURT DECISION IN K.P. MADHUSUDAN VS. CIT (2001) 251 ITR 99 (SC). THE SAID DECISION WAS CONSIDERED IN SHERATON APPARELS (SUPRA). HENCE IT C ANNOT BE SAID THAT SHERATON APPAREALS IS NOT CONSIDERED AT ALL. C) THE LD. COUNSEL FOR THE ASSESSEE WHILE RELYING O N THE DECISION IN CIT VS. SUN ENGINEERING WORKS P. LTD. (1992) 198 ITR 297 (S C) SUBMITS THAT A DECISION OF THE SUPREME COURT TAKES ITS COLOUR FROM THE QUESTIONS INVOLVED IN THE CASE IN WHICH IT IS RENDERED AND WHILE APP1YING THE DECISION TO A LATER CASE, COURTS MUST CAREFULLY TRY TO ASCERTAIN THE T RUE PRINCIPLE LAID DOWN BY THE DECISION. 6. THE DECISION IN INDUS ENGINEERING CO. AND ANR. ( SUPRA) IS ALSO NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE FOR THE FOLLOWING REASONS: A) IN THE FACTS OF THE CASE BEFORE THE HIGH COURT, REVISED RETURN DID NOT INCLUDE UNDISCLOSED INCOME. WHEREAS IN THE FACTS OF THE PRESENT CASE, RETURN FILED PURSUANT TO NOTICE U/S. 153A DISCLOSED UNDISC LOSED INCOME. B) THE HIGH COURT HELD THAT EXPLANATION 5 WAS NOT A PPLICABLE AS THE MANNER IN WHICH UNDISCLOSED INCOME WAS EARNED WAS N OT DISCLOSED. WHEREAS IN THE FACTS OF THE PRESENT CASE THE MANNER IN WHIC H UNDISCLOSED INCOME WAS EARNED WAS DISCLOSED IN THE STATEMENT U/S. 132(4) ( UNRECORDED SALES). 7. THE DECISION IN KIRIT DAHYABHAI PATEL (SUPRA) IS ALSO NOT APPLICABLE FOR THE FOLLOWING REASONS:- A) THE DECISION HAS NO BINDING EFFECT ON THE MUMBAI BENCH AND HENCE NON CONSIDERATION OF THE ABOVE DECISION MORESO WHEN IT WAS NOT CITED BY EITHER OF THE PARTIES CANNOT AMOUNT TO MISTAKE APPARENT ON RE CORD AND FOR THIS PROPOSITION THE RELIANCE WAS ALSO PLACED ON THE DEL HI TRIBUNAL IS SAIPEM S.P.A. V. DY. CIT (2003) 86 LTD 572 (DELHI) (TRIB.) B) THE FACT THAT REFERENCE IS MADE TO THIRD MEMBER IN THE ABOVE CASE CLEARLY SHOWS THAT THE `ISSUE IS A DEBATABLE ISSU E AND HENCE IF A POSSIBLE VIEW IS TAKEN BY THE TRIBUNAL IT CANNOT BE SAID TO BE A MISTAKE APPARENT ON RECORD. C) LEARNED THIRD MEMBER WAS FOLLOWING THE VIEW ALRE ADY TAKEN BY THE TRIBUNAL IN THE GROUP CASE OF RUPESH BHOLIDAS PATEL REPORTED IN (2009) 309 ITR (AT) 217 (AHD.) WHICH UPHELD THE VIEW THAT IMMU NITY FROM PENALTY UNDER EXPLANATION 5 TO SEC. 271(1 )(C) IS NOT AVAILABLE F OR THE EARLIER YEARS. IN FACT LD. THIRD MEMBER CLEARLY OBSERVED IN HIS ORDER THAT HE IS NOT DEVIATING FROM THE EARLIER VIEW ON ACCOUNT OF JUDICIAL DISCIPLINE AND MORE PARTICULARLY BECAUSE THAT VIEW HAD ALREADY BEEN TAKEN BY AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF THE SAME GROUP. IT IS FURTHER SUBMITTED THA T THE DECISION OF RUPESH BHOLIDAS PATEL REPORTED IN (2O09) 309 ITR (AT) 217 (AHD.) IS NOT APPLICABLE AS THE SAID DECISION RELIED ON THE DECISION OF BOMBAY HIGH COURT IN SHERATON MA NOS.284 TO 288/M/12 5 APPARELS REPORTED IN (2002) 256 ITR 20 (BORN) WHICH DID NOT DECIDE THE ISSUE OF IMMUNITY UNDER CLAUSE (2) OF EXPLANATION 5 TO S. 271(1)(C). D) THE CALCUTTA TRIBUNAL IN DCIT VS. AVINASH CH. GU PTA ITA NO. 414 & 4L5/KOL./2009 DTD. 30/06/2010 EXPLAINED THE DECISIO N IN KIRIT DAHYABHAI PATEL (SUPRA) AND SHERATON APPARELAS (SUPRA) AND F OLLOWED THE MADRAS AND RAJASTHAN HIGH COURT. THE COPY OF WHICH IS APPEARIN G AT PAGE 35 TO 40 OF THE ASSESSEES PAPER BOOK. THIS BEING THE LATER DECISIO N THE SAME MAY BE FOLLOWED. IN THE FACTS OF THE PRESENT CASE THE TRIBUNAL HAS A LSO RELIED ON THE DECISION OF THE HIGH COURT AND TAKEN A POSSIBLE VIEW AND HENCE IT CANNOT BE SAID THAT THERE IS A MISTAKE APPARENT ON RECORD. THE VIEW HEL D BY CALCUTTA TRIBUNAL IS FURTHER AFFIRMED BY THE CALCUTTA HIGH COURT IN CIT VS. RAMESH CHAND GOYAL IN GA NO. 2347 OF 2010 & ITAT NO. 181 OF 2010 DTD. 11- 8-2010, COPIES OF WHICH ARE APPEARING AT PAGES 29-40 OF THE ASSESSEES PAPE R BOOK. THEREFORE, THE DECISIONS OF CO-ORDINATE BENCH HOLDING CONTRARY VIE W ARE BAD IN LAW. 8. HE FURTHER SUBMITS THAT THE PRESENT CASE AS THE TRIBUNAL HAS DECIDED THAT THERE IS NO CONCEALMENT OF INCOME OR FURNISHIN G OF INACCURATE PARTICULARS OF INCOME, THE ISSUE OF IMMUNITY UNDER CLAUSE 2 OF EXPLANATION 5 TO S. 271(1)(C) IS ONLY AN ALTERNATIVE ISSUE AND EVEN IF IT IS HELD THAT ASSESSEE WAS NOT ENTITLED TO IMMUNITY UNDER CLAUSE 2 OF EXPLANAT ION 5 TO S. 271(1)(C) STILL NO PENALTY IS LEVIABLE. HE FURTHER SUBMITS THAT THE ARGUMENT OF THE ASSESSEE RELATING TO PENALTY ON INCOME DISCLOSED IN RETURN F ILED PURSUANT TO S. 153A HAD TWO LIMBS AS UNDER: A) THERE IS NO CONCEALMENT OF INCOME AS ASSESSEE H AD FILED REVISED RETURN WHICH WAS ACCEPTED BY THE ASSESSING OFFICER AND HEN CE THERE WAS NO CONCEALMENT OF INCOME. B) THAT EVEN IF EXPLANATION 5 WAS APPLICABLE, CASE OF ASSESSEE WAS COVERED UNDER CLAUSE (2) OF EXPLANATION 5 TO SECTION 271(L) (C). C) THE LEARNED CIT(A) IN HIS ORDER HAS DECIDED BOTH THE LIMBS IN FAVOUR OF ASSESSEE ,INTER ALIA, PLACING RELIANCE ON THE DECIS ION OF CIT VS. SURESH CHANDRA MITTAL (2001) 251 ITR 99 (SC) AND FOR DECIDING THE SECOND LIMB RELIANCE WAS PLACED ON VARIOUS DECISIONS OF HIGH COURT ON EXPLAN ATION 5 TO S. 271(1)(C). 9. HE FURTHER SUBMITS THAT THE TRIBUNAL WHILE DELET ING THE PENALTY RELIED ON THE DECISION OF HONBLE SUPREME COURT IN CIT VS. RE LIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 158(SC) HELD THAT THERE WAS NO CONCEALMENT OF INCOME AND HENCE CASE LAWS STATED IN GROUND NO. 1 TO 3 OF DEPARTMENT APPEAL DID NOT MA NOS.284 TO 288/M/12 6 MAKE ANY DIFFERENCE TO THE PRESENT CASE. HE FURTHER SUBMITS THAT ACCORDING TO THE TRIBUNAL INCOME DISCLOSED DURING SEARCH WAS ADM ITTED IN THE RETURN OF INCOME UNDER SECTION 153A AND ON TAKING HOLISTIC VI EW OF THE FACTS OF THE CASE THERE WAS NO CONCEALMENT OF INCOME IN VIEW OF SUPRE ME COURT DECISION IN RELIANCE PETROPRODUCTS PVT. LTD. (SUPRA). THE ITAT ALSO DECIDED HE ISSUE OF APPLICATION OF CLAUSE (2) OF EXP. 5 TO S. 271(1)(C) TO THE FACTS OF THE PRESENT CASE IN FAVOUR OF THE ASSESSEE AS REVENUE WAS UNABL E TO CONTROVERT THE FINDING OF CIT(A) BEFORE THE ITAT. HENCE, REVENUE CANNOT NO W CONTROVERT THE SAME BY FILING A MISCELLANEOUS APPLICATION BUT CAN DO SO ON LY BY FILING APPEAL BEFORE THE HIGH COURT. EVEN OTHERWISE, THE ISSUE OF IMMUN ITY UNDER EXPLANATION 5 WAS ONLY AN ALTERNATIVE ARGUMENT AND AS THE MAIN AR GUMENT OF CONCEALMENT OF INCOME IS DECIDED IN FAVOUR OF THE ASSESSEE, THE SAID ALTERNATIVE ARGUMENT BECOMES ONLY AN ACADEMIC ISSUE AND WOULD MAKE NO DI FFERENCE TO THE FINAL OUTCOME OF THE MATTER. 10. HE FURTHER SUBMITS THAT THE IMPUGNED ORDER OF T RIBUNAL IS IN LINE WITH RECENT DECISION OF THE DELHI TRIBUNAL IN ACIT VS. A SHOK RAJ NATH (ITAT DELHI) (ITA NO. 2970/DEL/2012, COPY OF WHICH IS APPEARING AT PAGES 57-68 OF THE ASSESSEES PAPER BOOK WHEREIN IT WAS HELD THAT DESP ITE ISSUE OF NOTICE U/S 143(2), REVISED ROI SAVES FROM PENALTY UNDER SECTIO N 271(1)(C). MERELY BECAUSE A NOTICE U/S 143(2) HAD ALREADY BEEN ISSUED AND THE ASSESSEE FILED REVISED RETURN THEREAFTER DISCLOSING ADDITIONAL INC OME TOWARDS CAPITAL GAINS, WHICH WAS NOT CORRECTLY SHOWN IN THE ORIGINAL RETUR N DOES NOT TANTAMOUNT TO DETECTION OF CONCEALMENT OF INCOME U/S 271(1)(C) OF THE ACT (SURESH CHANDRA MITTAL 251 ITR 99 (SC) WAS FOLLOWED). MA NOS.284 TO 288/M/12 7 11. HE FURTHER SUBMITS THAT M.A. NOS. 285 TO 287/M/ 2012 IN ITA NO. 278- 280 RESPECTIVELY FOR ASSESSMENT YEARS 2004-05 TO 20 06-07 RELATE TO ASSESSEES APPEAL AND HENCE NOT MAINTAINABLE AS THEY DO NOT DE AL WITH EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT. HE FURTHER SUBMITS T HAT DEPARTMENT APPEALS FOR ASSESSMENT YEARS 2002-03 AND 2006-07 ARE ALSO NOT M AINTAINABLE AS THE TAX EFFECT IS LESS THAN RS. 3,00,000/-. RELIANCE IS PL ACED ON DECISION OF CIT VS. VIRENDRA & CO. IN ITA NO. 987 OF 2000 DTD. 20-7-201 2 WHEREIN IT IS HELD THAT INSTRUCTION NO. 3/2011 DTD. 9-2-2011 PRESCRIBING LI MIT OF RS. 3,00,000/- FOR ITAT WILL APPLY TO PENDING APPEALS. 12. HE FURTHER SUBMITS THAT RECENTLY THE HONBLE DE LHI HIGH COURT IN CIT VS. M/S MARUTI INSURANCE DISTRIBUTION SERVICES LTD. IN WRIT PETITION (C) 106/2012 DTD. 4-9-2012 HELD THAT POWER U/S 254(2) I S EXTREMELY LIMITED. IT DOES NOT EXTEND TO CORRECTING ERRORS OF LAW, OR RE- APPRECIATE FACTUAL FINDINGS AS THAT WOULD AMOUNT TO A REVIEW. HE FURTHER SUBMITS THAT THERE ARE CONTRARY TRIBUNAL DECISIONS ON THE ISSUE OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT AND, HENCE, THE SAID ISSUE IS A DEBATABLE ISSUE AND , THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD IN VIEW OF THE DECISIO N ION CIT VS. BHAGWATI DEVELOPERS (P.) LTD. (2003) 261 ITR 658 (CAL.). TH E RELIANCE WAS ALSO PLACED IN CIT VS. RAMESH ELECTRIC AND TRADING CO. (1993) 203 ITR 497 (BOM) WHEREIN IT HAS BEEN HELD THAT THE POWER OF THE TRIBUNAL U/S 25 4(2) OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECOR D, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. HE, MA NOS.284 TO 288/M/12 8 THEREFORE, SUBMITS THAT THE MISC. APPLICATION FILED BY THE REVENUE BE DISMISSED. 13. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THERE IS NO DISPUTE THAT THE TRIBUNAL WHILE DECIDING THE IMPUGNED APPEALS HA S RECORDED THE CORRECT FACTS OF THE CASE AND HAS CONSIDERED ALL THE DECISI ONS RELIED ON BY THE PARTIES. FURTHER IT IS ALSO NOT IN DISPUTE THAT ALL THE DECI SIONS MENTIONED IN THE MISC. APPLICATIONS FILED BY THE REVENUE WERE NOT CITED BY THE LD. D.R. AT THE TIME OF HEARING OF THE APPEALS. 14. WE FURTHER FIND THAT THE TRIBUNAL WHILE DECIDIN G THE APPEALS AFTER RELYING ON THE DECISION OF HONBLE SUPREME COURT IN RELIANCE PETROPRODUCTS PVT. LTD. (SUPRA) HAS HELD AS UNDER:- 10. IN ORDER TO APPLY THE PROVISIONS OF SECTION 271 (1)(C), THERE HAS TO BE CONCEALMENT OF PARTICULARS OF INCOME OF THE ASSESSE E, SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF INCOM E. 11. IN A RECENT JUDGMENT OF THE HONBLE APEX COURT IN CIT VS. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 158, THEIR L ORDSHIPS, AFTER CONSIDERING VARIOUS DECISIONS INCLUDING DILIP N. SHROFF VS. JCI T (2007) 291 ITR 519 (SC) AND UNION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSO RS (2008) 306 ITR 2. (SC) HAVE OBSERVED AND HELD (PAGE 158 HEADNOTES) AS UNDE R: A GLANCE AT THE PROVISIONS OF SECTION 271(1 )(C) O F THE INCOME TAX ACT, 1961, SUGGESTS THAT IN ORDER TO BE COVERED BY IT, THERE H AS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY , THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD PARTICULARS USED IN SECTION 271(1 )(C) WOULD EMBR ACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS F OUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CANNOT BE HELD GUILTY OF F URNISHING INACCURATE PARTICULARS. IN ORDER TO (EXPOSE THE ASSESSEE TO PE NALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CAN NOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAM OUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THA T EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY INCOME. WHEN SUCH PARTICULARS ARE FOUND TO BE INACCURATE, THE LIABILI TY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NO T BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. MA NOS.284 TO 288/M/12 9 WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THE RE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO F URNISHING INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. RESPECTFULLY FOLLOWING THE ABOVE DECISION AND KEEPI NG IN VIEW THAT IT IS NOT THE CASE OF REVENUE THAT UNRECORDED PURCHASES WERE FOUN D DURING THE COURSE OF SEARCH OR THE ASSESSEE HAS RECORDED SUCH PURCHASES NOT DISCLOSED TO THE DEPARTMENT, WE ARE OF THE VIEW THAT THERE IS NO CON CEALMENT ON THE PART OF THE ASSESSEE WHICH MAY CALL FOR LEVY OF PENALTY UNDER S ECTION 271(1)(C) OF THE ACT. ACCORDINGLY, THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A) IS DELETED. THE GROUNDS TAKEN B Y THE ASSESSEE ARE, THEREFORE, ALLOWED. THE TRIBUNAL HAS FURTHER HELD IN PARA 13 AS UNDER:- 13. AFTER HEARING THE RIVAL PARTIES AND PERUSING T HE MATERIAL AVAILABLE ON RECORD WE FIND THAT THE FINDING BY THE LEARNED CIT( A) THAT PENALTY ON THE INCOME DISCLOSED DURING THE SEARCH AND SUBSEQUENTLY ADMITTED IN THE RETURN OF INCOME UNDER SECTION 153A WITH PAYMENT OF TAXES AND INTEREST IS UNJUSTIFIED AND UNWARRANTED IN VIEW OF CLAUSE (2) OF EXPLN. 5 T O SECTION 271(1)(C), WAS NOT CONTROVERTED BY THE REVENUE EVEN AT THIS STAGE. TH ERE IS NO QUARREL ON THE RATIO OF THE DECISIONS CITED BY THE REVENUE IN THE GROUNDS OF APPEAL, HOWEVER, IN VIEW OF THE RATIO OF RECENT DECISION OF HONBLE APEX COURT IN RELIANCE PETROPRODUCTS PVT. LTD. (SUPRA) AND THE FACTS OF TH E PRESENT CASE, THE SAME ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THIS BEING SO AND KEEPING IN VIEW OF OUR FINDING RECORDED IN A SSEZSSEES APPEAL FOR THE ASST. YEAR 2004-05 IN PARA 8 TO 11 OF THE ORDER, WE HOLD THAT THE PENALTY IS NOT LEVIABLE ON THE INCOME DISCLOSED DURING THE SEARCH AND SUBSEQUENTLY ADMITTED IN THE RETURN OF INCOME FILED UNDER SECTION 153A AN D ALSO ON THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF 8UNRECO RDED PURCHASES LEADING TO SUPPRESSION OF SALES. ACCORDINGLY, THE GROUNDS TAK EN BY THE ASSESSEE IN ITS APPEALS ARE ALLOWED AND THE GROUNDS TAKEN BY THE RE VENUE IN THEIR APPEALS ARE REJECTED. 15. THE HONBLE SUPREME COURT IN SAURASHTRA KUTCH S TOCK EXCHANGE LTD. (SUPRA) HAS HELD AS UNDER (HEADNOTE) : WHERE AFTER THE APPELLATE TRIBUNAL RENDERED ITS DE CISION ON APPEAL, A MISCELLANEOUS APPLICATION WAS FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, STATING THAT A DECISION OF TH E JURISDICTIONAL HIGH COURT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL : HEL D, THAT THERE WAS A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRED REC TIFICATION. MA NOS.284 TO 288/M/12 10 16. IN SHERATON APPARELS (SUPRA) THE FOLLOWING QUES TION OF LAW AROSE (PAGE 25) :- WHETHER, ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND LAW, THE DIARIES, ON THE BASIS OF WHICH THE ADDITIONS WERE M ADE COULD BE REGARDED AS BOOKS OF ACCOUNT FOR THE PURPOSES OF CLAUSE (1) OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT, SO AS TO PROVIDE IMMUNITY TO THE APPELLANTS ? IT HAS BEEN OBSERVED AND HELD AS UNDER (PAGE 33) : N OW, TURNING TO THE FACTS OF THE CASES IN HAND, PRIV ATE DIARIES MAY HAVE BEEN MOST REGULARLY MAINTAINED, IT MAY HAVE BEEN EX HIBITING RECORD OF THE FACTUAL FACTS, CONTEMPORANEOUSLY MADE BUT THEY WERE NEVER MAINTAINED FOR THE PURPOSES OF THE INCOME-TAX ACT TO DRAW THE SOURCE O F INCOME OR FOR THE COMPUTATION OF TOTAL INCOME TO OFFER INCOME CALCULA TED THEREFROM FOR THE PURPOSES OF TAXATION. SUCH BOOKS OR DIARIES CAN HAR DLY BE DESIGNED OR ACCEPTED AS BOOKS OF ACCOUNT FOR THE PURPOSES OF EX PLANATION 5 OF SECTION 271(1)(C) OF THE ACT, SO AS TO AFFORD IMMUNITY FROM PENALTY. NONE OF THE CASES CITED BY THE APPELLANTS WERE CLOSE TO THE FACTS FOU ND HEREIN, HENCE NO REFERENCE THERETO IN OUR OPINION, IS NECESSARY. THE TRIBUNAL WAS PERFECTLY JUSTIFIED IN UPHOLDING T HE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 17. IN INDUS ENGINEERING CO. (SUPRA) IT HAS BEEN HE LD (HEADNOTE) : HELD, DISMISSING THE PETITION, THAT THE COMMISSION ER HAD RECORDED A FINDING OF FACT THAT THE TRANSACTIONS WERE DISCLOSE D IN THE COURSE OF SEARCH. THE INCOME WAS IN RESPECT OF THE ASSESSMENT YEAR 1985-8 6. THE SEARCH WAS CONDUCTED ON JUNE 30, 1987. APART FROM THAT, THE CO MMISSIONER NOTED THAT NEITHER IN THE ORIGINAL RETURN NOR IN THE REVISED R ETURN THE PETITIONER HAD DISCLOSED THE INCOME. IT WAS, THEREFORE, A CLEAR CA SE OF CONCEALMENT OF INCOME. SECTION 132(4) WAS NOT APPLICABLE BECAUSE THE ASSES SEE DID NOT DISCLOSE THE MANNER IN WHICH SUCH INCOME HAD BEEN DERIVED. THE P ENALTY COULD NOT BE WAIVED. 18. IN DY. CIT VS. AVINASH CHAND GUPTA IN ITA NO. 4 14 & 415/KOL/2009 FOR A.Y. 2005-06 & 2006-07 ORDER DTD. 30-6-2010 IT HAS BEEN OBSERVED AND HELD IN PARA 5 OF THE ORDER AS UNDER:- ..WE FIND THAT IN THE CASE OF SHERATON APPARELS VS. ACIT (SUPRA) THE FOLLOWING SUBSTANTIAL QUESTION OF LAW AROSE : WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE AND LAW, THE DIARIES, ON THE BASIS OF WHICH THE ADDITIONS WERE MADE COULD BE REGARDED AS BOOKS OF ACCOUNT FOR THE PURPOSES OF CL AUSE (1) OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT, SO A S TO PROVIDE IMMUNITY TO THE APPELLANT. MA NOS.284 TO 288/M/12 11 THUS THE ISSUE BEFORE THE HONBLE BOMBAY HIGH COURT WAS WHETHER DIARIES CAN BE REGARDED AS BOOKS OF ACCOUNT AND THE COURT HELD THAT THE DIARIES CANNOT BE CONSIDERED AS BOOKS OF ACCOUNTS FOR THE PURPOSE OF EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT AND IN THAT VIEW OF THE MATTER PENALTY FOR CONCEALMENT WAS CONFIRMED. ADMITTEDLY, THE FACTS OF THE INSTANT C ASE ARE ENTIRELY DIFFERENT AND, THEREFORE, THE RATIO AS LAID DOWN IN THAT CASE IS N OT APPLICABLE TO THE FACTS OF THIS CASE. SIMILARLY, WE FIND THAT THE DECISION OF THE LD. 3 RD MEMBER IN ACIT VS. KIRIT DAHYABHAI PATEL REPORTED IN 121 ITD 159 ( AHD) TM, THE LD. THIRD MEMBER FOLLOWING THE VIEW ALREADY TAKEN BY THE TRIB UNAL IN THE GROUP CASE OF RUPESH BHOLIDAS PATEL UPHELD THE VIEW THAT IMMUNITY FROM PENALTY UNDER EXPLANATION 5 TO SECTION 271(1)(C) IS NOT AVAILABL E FOR THE EARLIER YEARS. THE LD. THIRD MEMBER CLEARLY OBSERVED IN HIS ORDER THAT HE IS NOT DEVIATING FROM THE EARLIER VIEW ON ACCOUNT OF JUDICIAL DISCIPLINE AND MORE PARTICULARLY BECAUSE THAT VIEW HAD ALREADY BEEN TAKEN BY AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASES OF THE SAME GROUP ON IDENTICAL FACTS AND CIRC UMSTANCES. WE FURTHER FIND THAT IN THE CASE OF RUPESH BHOLIDAS PATEL, REPORTED IN (2009) 309 ITR (AT)217 (AHD.), THE AHMEDABAD BENCH OF THE TRIBUNAL PREFERR ED TO FOLLOW THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN SHERATON APPARE LS REPORTED IN (2002) 256 ITR 20 (BOM.). WE HAVE ALREADY OBSERVED THAT T HE RATIO LAID DOWN IN THIS CASE IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE FURTHER FIND THAT THE HONBLE MADRAS HIGH COURT IN SDV CHANDRUS CASE, CI TED SUPRA, AS WELL AS HONBLE RAJASTHAN HIGH COURT IN KANHAIYALALS CASE AFTER CONSIDERING THE PROVISIONS CONTAINED IN EXPLANATION 5 TO SECTION 27 1(1)(C) OF THE ACT HELD IN FAVOUR OF THE ASSESSEE TO THE EFFECT THAT THE IMMUN ITY UNDER EXPLANATION 5 TO SECTION 271(1)(C) OF THE ACT IS AVAILABLE EVEN IN R ESPECT OF INCOME DISCLOSED FOR THE YEARS EARLIER TO THE DATE OF SEARCH. WE FURTHE R FIND THAT THERE IS NO DECISION ON THIS ISSUE BY THE JURISDICTIONAL HIGH C OURT. SINCE TWO DECISIONS OF THE HONBLE MADRAS HIGH COURT AS WELL AS THE HONBL E RAJASTHAN HIGH COURT ARE IN FAVOUR OF THE ASSESSEE, WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A) AND THE SAME IS HEREBY UPHELD AS THE LAW IS WELL SETTLED THAT EVEN WHEN TWO VIEWS ARE POSSIBLE, THE VIEW WHICH IS FAVO URABLE TO THE ASSESSEE BE TAKEN. THE REVENUE APPEALS ARE DISMISSED. 19. FOR THE REASONS AS STATED IN THE TRIBUNAL ORDER IN AVINASH CHAND GUPTA (SUPRA) AND KEEPING IN VIEW THAT THE FACTS AND ISSU E OF THE PRESENT CASE ARE ENTIRELY DIFFERENT, WE ARE OF THE VIEW THAT THE RAT IO LAID DOWN IN ALL THE CASES RELIED ON BY THE LD. D.R. ARE DISTINGUISHABLE AND N OT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 20. IN CIT VS. ITAT & ORS. (2006) 195 TAXATION 288 (DEL.) IT HAS BEEN HELD VIDE PARA 7, PAGE 291 & 292 AS UNDER: MA NOS.284 TO 288/M/12 12 THAT BEING THE LEGAL POSITION, THE TRIBUNAL WAS NOT IN OUR OPINION JUSTIFIED IN RECALLING THE ORDER PSSSED BY IT IN TOTO AND SETTIN G THE MATTER DOWN FOR A FRESH HEARING. JUST BECAUSE A PRONOUNCEMENT MADE ON THE SUBJECT EITHER BY THE TRIBUNAL OR BY ANY OTHER COURT WAS NOT NOTICED BY T HE TRIBUNAL WHILE TAKING A PARTICULAR VIEW ON THE MERIT 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 MIST AKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. MORE IMPORTANTLY JUST BECAUSE A POINT IS DEBATABLE (WHICH IS ONE OF THE R EASONS GIVEN BY THE TRIBUNAL IN THE INSTANT CASE) COULD HARDLY PROVIDE A JUSTIFI CATION 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 UNDER SECTION 158 BFA BEING STATUTORY IN NATURE WITH NO P OWER VESTED IN ANY AUTHORITY OR TRIBUNAL TO CONDONE THE SAME, BUT THE VERY FACT THAT THE TRIBUNAL HAS MADE THOSE OBSERVATIONS WOULD NOT RENDER VALID THE ORDER OF RECALL PASSED BY IT. THE NET RESULT OF THE ORDER MADE BY THE TRI BUNAL CONTINUES TO REMAIN THE SAME VIZ. THE APPEAL HAS TO BE HEARD AGAIN SIM PLY BECAUSE ONE OF THE ISSUES DECIDED BY THE TRIBUNAL IS DEBATABLE OR THE TRIBUNAL HAS NOT NOTICED AN EARLIER DECISION RENDERED BY ANOTHER BENCH. BOTH T HESE REASONS WERE INSUFFICIENT TO JUSTIFY THE ORDER OF RECALL MADE BY THE TRIBUNAL. 21. IN SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) IT HAS BEEN LAID DOWN (PLACITUM 37 AT PAGE 239) : IN OUR JUDGMENT, THEREFORE, A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE O R ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TR AVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR A PPARENT ON THE FACE OF THE RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKIN G AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS WHER E THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR SHOULD 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 ONE OF POSSIBLE V IEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. 22. RESPECTFULLY FOLLOWING THE RATIO OF THE ABOVE D ECISIONS, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN RELIANCE P ETROPRODUCTS PVT. LTD. (SUPRA). THE REVENUE WANTS REVIEW, WHICH IS NOT PE RMISSIBLE UNDER THE SCHEME OF SECTION 254(2) OF THE ACT. ACCORDINGLY, THE MISC. PETITIONS FILED BY THE REVENUE FOR THE ABOVE ASSESSMENT YEARS ARE REJE CTED. MA NOS.284 TO 288/M/12 13 23. IN THE RESULT, THE MISC. PETITIONS FILED BY TH E REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (D. KARUNAKARA RAO) (DINESH KUMAR AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED : 23-11-2012 RK.: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT , CONCERNED, MUMBAI 4. CIT(A) CONCERNED, MUMBAI 5. DR G BENCH 6. GUARD FILE. BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI