LOKESH GOEL HUF, V. ITO 15(1)(3),

MA 287/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8163 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 19-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: RAM UPADHYAY
• Keywords: Gift; Depreciation; Rectification of order; Principle of natural justice
• Section: 133A; 68; 148; 263

Judgement Text

MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 1 OF 13 IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI D.K.AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A.NO.287/MOM/2011 (ARISING OUT OF ITA NO.5725/MUM/2006) (ASSESSMENT YEAR: 2003-04) LOKESH GOEL (HUF) VS INCOME TAX OFFICER 2/6 NEW SION CHS LTD 15(1)(3) MATRU MANDIR NEAR ALLAHABAD BANK 1 ST FLOOR, TARDEO ROAD MUMBAI 400001 MUMBAI 400 008 PAN AAAHL 9397 M (APPLICANT) (RESPONDENT) APPLICANT BY: MR. RAM UPADHYAY RESPONDENT BY: MR. JITENDRA YADAV, DR DATE OF HEARING: 17/02/2012 DATE OF PRONOUNCEMENT: 17/04/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED AGAIN ST THE ORDER IN ITA NO.5725/MUM/2006 DATED 25 TH MARCH, 2009. SINCE BOTH THE MEMBERS OF THE DIVISIONAL BENCH WHO DECIDED THE APP EAL WERE TRANSFERRED, WE WERE SUBSTITUTED TO HEAR THE ASSESS EES APPLICATION. THE ASSESSEES PRAYER IN M.A. IS AS UNDER: 4. APPLICANT SUBMITS THAT SAID ORDER WAS THEREAFTE R WAS CHALLENGED BEFORE HONBLE HIGH COURT APPEAL NO. L 1 152 OF 2009. APPLICANT NOW WISHES TO TAKE OUT THIS APPL ICATION FOR REVIEW U/S. 254 OF THE INCOME TAX ACT SINCE THE ORDER PASSED BY THIS HONBLE TRIBUNAL RELIED ON CERTAIN DECISIONS WHICH WERE NEITHER ADVANCED BY THE DEPARTMENT NOR BY THE ASSESSEE. THE DETAILS OF JUDG MENT IS PROVIDED HEREIN BELOW: A. MOHAN KALA & ORS 291 ITR 278 SC MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 2 OF 13 B. RAJIV TONDON 108 LTD 56 (DEL) C. SUBHASH CHANDER SEKHARI 290 ITR 300 ( P & H) D. JASPLA SINGH 290 ITR 306 (P&H) E. TIRATH RAM GUPTA 6 SOT 703 CHANDIGARH BENCH F. YASH PAL GOEL 310 ITR 75/76 HIGH COURT OF PUNJAB 5. APPLICANT SUBMITS THAT IT HAS BEEN HELD THAT IF ANY DECISION IS NOT RELIED UPON BY THE PARTIES AT THE T IME OF HEARING AND THE BENCH DESIRES TO APPLY THE RATIO OF SUCH DECISION, THE NATURAL JUSTICE DEMANDS THAT BENCH SH OULD CONFRONT THE PARTIES WITH SUCH DECISIONS, AND SHOUL D PROVE AN OPPORTUNITY TO THEM SO THAT THEY CAN MAKE THEIR SUBMISSIONS WITH REFERENCE TO SUCH DECISION (VINDHY A TELELINKS LTD V/S JT. CIT (2008) (JAB) (TRIB). 6. APPLICANT SUBMITS THAT UNDER THE PROVISIONS OF I NCOME TAX ACT, RECTIFICATION OF ORDER CAN BE DONE WITHIN THE 4 YEARS PERIOD AND AS THIS APPLICATION IS BEING FILED WITHIN THE SAID STIPULATED PERIOD HENCE THIS MISCELLANEOUS APPLICATION IS MAINTAINABLE BEFORE THIS HONBLE TRI BUNAL. 2. WE HAVE HEARD THE LEARNED COUNSEL IN DETAIL WHO REFERRED TO THE ORDER OF THE ITAT AND SUBMITTED THAT THE ITAT H AS RELIED ON SOME OF THE JUDGMENTS WHICH WERE NOT PLACED BEFORE EITHER BY THE COUNSEL OR BY REVENUE AND FURTHER RELIED ON THE FOL LOWING DECISIONS TO SUPPORT THAT ANY JUDGMENT WHICH WAS NOT RELIED U PON BY ANY PARTY LEADS TO AN ERROR APPARENT FROM RECORD AND IT AT IS EMPOWERED TO RECTIFY THE SAME BY GIVING AN OPPORTUNITY TO THE PARTIES TO ARGUE THE MATTER ON SUCH JUDGMENTS. THE LEARNED COUNSEL R ELIED ON THE DECISION OF ROOPCHAND MANOJKUMAR VS. CIT (1999) 235 ITR 461, 462, 464 ( GUWAHATI) AND VINDHYA TELELINKS LTD. VS. JOINT CIT (2008) 15 DTR 238 ( JABALPUR TRIBUNAL). 3. DURING THE PROCEEDINGS, IT TRANSPIRED THAT ASSES SEE HAS PREFERRED AN APPEAL TO THE HON'BLE HIGH COURT IN APPEAL NO.L 1152 OF 2009 AND SPECIFICALLY ASKED TO EXPLAIN HOW THIS M.A. CAN BE ENTERTAINED WHEN THE MATTER WAS PREFERRED IN APPEAL BEFORE THE HON'BLE HIGH MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 3 OF 13 COURT. IT WAS SUBMITTED THAT THE APPEAL OF THE ASSE SSEE WAS DISMISSED BY THE HON'BLE COURT WITHOUT CONSIDERING MERITS DUE TO TECHNICAL REASONS AND PLACED AN ORDER OF THE HON'BL E HIGH COURT DATED 21.07.2009 WHEREIN THE APPELLANT WAS DIRECTED TO REMOVE OFFICE OBJECTION AND STATED CLEARLY THAT FAILURE ON THE PART OF THE APPELLANT TO REMOVE OFFICE OBJECTIONS AND/OR TO SER VE NECESSARY APPEAL SHALL STAND DISMISSED WITHOUT REFERENCE TO T HE COURT. ASSESSEE FILED A COPY OF THE WEBSITE PAGE INDICATIN G THE SAID APPEAL WAS DISPOSED OF ON 30.11.2009. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D THAT THE CASE LAW RELIED UPON BY THE TRIBUNAL WAS ONLY TO ES TABLISH PRINCIPLES WITH REFERENCE TO ACCEPTANCE OF GIFTS AN D ISSUE WAS DECIDED ON FACTS OF THE CASE. HE REFERRED TO THE FI NDINGS OF THE TRIBUNAL IN PARA 7, 8, 9 AND 10 TO SUBMIT THAT EVEN THOUGH THE PRINCIPLES WERE ESTABLISHED IN EARLIER PARA, THE FI NDING WAS ONLY ON FACTS OF CASE. FURTHER, IT WAS SUBMITTED THAT THERE IS NO PREJUDICE CAUSED TO THE ASSESSEE, AS THE ASSESSEE HAD PREFERR ED AN APPEAL BEFORE THE HON'BLE HIGH COURT. THE ORDER OF THE ITA T CANNOT BE MODIFIED OR RECALLED AS THE ORDER MERGED WITH THE O RDER OF THE HON'BLE HIGH COURT. FURTHER, IT WAS SUBMITTED THAT WHAT THE ASSESSEE WAS SEEKING AS STATED IN PRAYER, WAS ONLY A REVIEW OF THE ORDER OF ITAT, WHICH IS NOT PERMISSIBLE UNDER SECTI ON 254(2). 5. WE HAVE CONSIDERED THE ISSUE. AS SEEN FROM PRAYE R IT IS FOR REVIEW OF ORDER ON THE REASON THAT SOME OF THE CASE LAW TH AT WAS MENTIONED IN THE ORDER WAS STATED TO BE NOT RELIED UPON BY EITHER PARTY. THIS ASPECT COULD NOT BE VERIFIED AS PRESENT MEMBERS ARE NOT PARTY TO THE PROCEEDINGS IN APPEAL. HOWEVER, AS CAN BE SEEN FROM THE ORDER ITSELF, THE DECISIONS OF HON'BLE SUPREME COURT AND OTHER HIGH COURTS WERE REFERRED FOR ESTABLISHING CERTAIN PRINCIPLES GOVERNING THE ACCEPTANCE OF GIFT AS GENUINE OR NOT. THE ISSUE IN MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 4 OF 13 APPEAL WAS WITH REFERENCE TO THE TAXABILITY OF AN A MOUNT OF ` .25.00 LAKHS STATED TO HAVE BEEN RECEIVED AS GIFT FROM MR. TARUN AGARWAL WHO LIVES IN U.A.E.. PARA 2 AND 3 OF THE ORDER INDI CATE THE FACTS AND THE PROCEEDINGS BEFORE THE AUTHORITIES. PARA 4 RECO RDS THE ARGUMENTS OF THE COUNSELS. PARAS 5 & 6 IS WITH REFE RENCE TO VARIOUS CASE LAW GOVERNING THE ISSUE INCLUDING THE CASE LAW WHICH WAS DISTINGUISHED BUT RELIED BY THE LEARNED COUNSEL IN THE COURSE OF THE ARGUMENTS. THUS, IN PARAS 5 & 6 EVEN THOUGH NUMBER OF CASES WERE DISCUSSED, IT IS ONLY FOR ESTABLISHING VARIOUS PARA METERS FOR ACCEPTANCE OF GIFT. THE FINDINGS OF THE ITAT ARE FR OM PARA 7 TO 10, WHICH ARE AS UNDER: 7. CONSIDERING THE (I) AUTHENTICATION BY THE OFFIC E OF THE CONSULAR GENERAL OF INDIA, DUBAI; (II) AFFIDAVI T OF THE DONOR; (III) THE TRANSACTIONAL DETAILS SUCH AS DD NO, BANK PARTICULARS ETC, THE DONEE HAS DISCHARGED THE REQUISITE ONUS ONLY WITH REGARD TO THE IDENTITY OF THE DONOR. WHAT MADE THE DONEE TO FAIL TO FILE THE COMP LETE SET OF ANNUAL ACCOUNTS OF THE FIRM FOR CERTAIN YEAR AS WELL AS THE COPY OF THE BANK PASS BOOK FOR A REASONABLE PERIOD COVERING THE CURRENT YEAR IS NOT UNDERSTANDABLE. CONSIDERING THE SAME AS WELL AS THE QUANTUM OF GIFT, IN OUR OPINION, THE AO HAS RIGHTLY HAS A REASON TO FORM DISSATISFACTION ABOUT THE GENUINENESS OF THE CLAIM OF GIFT OF RS 25 LAKHS AND SUCH DISSATISFACTION NOT ONLY WITH REGARD TO THE FA CT OF CAPACITY TO GIFT AND THE SOURCE THEREOF, BUT ALSO RECEIVING THE SAME AS A GIFT FROM THE DONOR. IN FAC T, IN THE LANGUAGE OF THE APEX COURT, AS DISCUSSED ABO VE, THIS VERY DISSATISFACTION OF THE AO IT SELF CONSTIT UTES AN ADVERSE EVIDENCE AGAINST THE ASSESSEE. FURTHER, THE DECISION OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF TIRATH RAM GUPTA (6S0T703) HELD THAT TH E GENUINENESS OF THE GIFT CANNOT SIMPLY BE ACCEPTED MERELY BANKING ON THE TRANSACTIONS EFFECTED THROUGH THE BANKING CHANNELS. THESE VIEWS ARE FORTIFIED BY A RECENT JUDGMENT OF HIGH COURT OF PUNJAB & HARYANA I N THE CASE OF YASH PAL GOEL (310 I1TR 75/76) FOR THE PROPOSITION THAT:- MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 5 OF 13 A SIMPLE IDENTIFICATION OF THE DONOR SHOWING THE MOVEMENT OF THE GIFT AMOUNT THROUGH BANKING CHANNELS IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. SINCE THE C/AIM OF GIFT IS MADE BY THE ASSESSEE, THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIF T BUT ALSO HIS CAPACITY TO MAKE A GIFT AND THAT IT HA S ACTUALLY BEEN RECEIVED AS A GIFT FROM THE DONOR. 8. REGARDING THE DISCHARGE OF ONUS BY THE ASSESSEE - FOR PROVING THAT THE SAID AMOUNT OF RS 25 LAKHS WAS RECEIVED AS A GIFT FROM SRI AGGARWAL, IN OUR CONSIDERED OPINION, THIS ISSUE RAISED THE BASIC ISS UE OF REASONS FOR GIVING ANY GIFT I.E OUT OF LOVE OR AF FECTION OR REVERENCE ETC. PER SE, THE ASSESSEE - HUF, BEING AN ARTIFICIAL JURIDICAL PERSON AND NOT AN INDIVIDUAL, A BIOLOGICAL ENTITY, CANNOT BE ATTRIBUTED WITH THE AB OVE FEELINGS. ALTERNATIVELY, THE DONEE MUST PROVE THAT THE DONOR HAS LOVE, AFFECTION, REVERENCE ETC WITH ALL T HE COPARCENERS OF THE HUF, WHICH WAS NOT DONE EITHER B Y VISITING INDIA OR BY ANY OTHER MEANS. THE DONOR, WH O IS READY GIVE GIFT OF AN AMOUNT OF RS 25 LAKHS, HAS FAILED TO VISIT INDIA ON THE EVE OF THE BIRTHDAY OF THE CHILD OF THE KARTHA OF THE HUF. AS OBSERVED IN THE ABOVE SAID CASE OF YASH PAL GOEL (SUPRA), A VISIT O F THE DONOR TO THE DONEES PREMISES WOULD HAVE CONVEYED DIFFERENT SIGNALS IN ORDER TO STRENGTHEN THE CASE O F THE ASSESSEE. AS SUCH, IT IS NOT THE CASE OF THE ASSESS EE THAT THE DONOR ALSO HAS RECEIVED SIMILAR GIFTS FROM THE ASSESSEE-DONEE OR ANY OTHER DONEE TO HIS CREDIT. ALTHOUGH THE DONOR CLAIMED TO BE OF WORTH OF EARNIN G INCOME OF US $ 3 LAKHS A YEAR, THE SAME IS NOT EVIDENCED, THUS, LEADING TO THE CONCLUSION THAT ONU S IS NOT DISCHARGED WITH REGARD TO THE SOURCE OF GIFT OF RS 25 LAKHS. IN THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSEE HAS DISCHARGED THE ONUS IN MATTER S OF THE CREDITWORTHINESS OR SOURCE OF THE GIFT AS WE LL AS THE GENUINENESS OF THE GIFT OF RS 25 LAKHS. 9. OTHER ARGUMENTS OF THE ASSESSEE THAT THE AO HAS CONSIDERED THE FACT OF EXISTENCE OF RELATIONSHIP BETWEEN THE DONOR AND DONEE AS WELL AS THE GIFTING IN THE CONTEXT OF THE BIRTHDAY OF THE CHILD OF THE KAR THA, WE HAVE EXAMINED THE SAME AND FIND THAT THE FACT IS THAT THE DONOR AND KARTHA ARE ADMITTEDLY NOT CLOSEL Y MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 6 OF 13 RELATED. IN ANY CASE, THERE IS DIFFERENCE BETWEEN T HE RELATIONSHIP BETWEEN THE DONOR AND THE HUF AND THE DONOR AND THE KARTHA. REGARDING THE EVENT OF BIRTHDAY, WE FIND THAT THE DONOR HAS NOT GIVEN THE GIFT TO THE CHILD OF THE KARTHA AND GIFT IS AIMED AT THE HUF, IN WHICH THE CHILD MAY BE A BENEFICIARY. CONSIDERIN G THE ABOVE COMPLEXITY OF TRANSACTIONAL RELATIONSHIPS , WE ARE OF THE OPINION THAT THE SAID ARGUMENT ALSO D OES NOT HELP THE ASSESSEE. 10. IN THE CIRCUMSTANCES OF FURNISHING OF INADEQUAT E MATERIALS AND THE EVIDENCES COUPLED WITH THE EXISTI NG JUDICIAL PROPOSITIONS AT THE LEVEL OF THE APEX COUR T AS WELL AS THE HIGH COURTS, THE ASSESSEE HAS NOT DISCHARGED THE ONUS AS PER THE PROVISIONS OF SECTIO N 68. IN OUR OPINION, THERE IS NO CLINCHING EVIDENCE ABOUT THE WHY AND WHAT REASONING, THE GIFTING OF AN AMOUN T OF RS 25 LAKHS MATERIALIZED. CONSEQUENTLY, THE ADDITIONS OF RS 25 LAKHS MUST BE UPHELD. THEREFORE, WE ARE OF THE CONSIDERED OPINION, THAT THE ORDER OF THE CIT (A) HAS TO BE REVERSED. THUS, THE GROUNDS OF APPEAL OF THE REVENUE ARE ALLOWED AND THE ASSESSEE S CROSS OBJECTION ARE DISMISSED. THEREFORE, WE ARE OF THE OPINION THAT EVEN THOUGH S OME DECISIONS WERE RELIED UPON IN THE COURSE OF THE ABOVE ORDER S TATED TO BE NOT RELIED ON BY THE PARTIES, THE FINDINGS IN PARA 7, 8, 9 & 10 WERE ON FACTS ONLY. JUST BECAUSE SOME DECISIONS WERE QUOTED / RELIED ON, THEY ARE NOT DIRECTLY APPLIED TO THE FACTS OF THE C ASE. AS SEEN FROM THE ORDER, THE CASE LAW RELIED BY THE COUNSEL WERE DISTINGUISHED WHILE ANALYZING THE ISSUE. IN THAT PROCESS, THE LAT ER JUDGMENTS OR OF HIGHER AUTHORITY WERE RELIED ON. TRIBUNAL CAN NOT I GNORE THE GAMUT OF CASE LAW ON AN ISSUE JUST BECAUSE THE SAME WERE NOT QUOTED. IT IS ALL THE MORE NECESSARY TO CONSIDER VARIOUS CASES TO ARRIVE AT CORRECT PROPOSITION OF LAW. NO PREJUDICE CAN BE CAUSED TO EITHER PARTY, IF PARAMETERS WERE DRAWN UP ON THE BASIS OF ESTABLISHE D CASE LAW. THERE IS NO DISPUTE WITH REFERENCE TO THE FACT THAT ALL THESE JUDGMENTS RELIED UPON ARE QUOTED JUDGMENTS AND ARE AVAILABLE IN MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 7 OF 13 THE PUBLIC DOMAIN MUCH BEFORE THE CASE WAS HEARD AN D THE ORDER WAS PASSED. THERE WAS NO ALLEGATION THAT A JUDGMENT RELIED ON WAS NOT CONSIDERED. THEREFORE, IT CANNOT BE STATED THAT THE ASSESSEE WAS CONFRONTED WITH AN UNREPORTED JUDGMENT OR A JUDGMEN T RELIED WAS NOT CONSIDERED. IN FACT THE HON'BLE BOMBAY HIGH CO URT ITSELF CLARIFIED THAT IT CANNOT BE LAID DOWN AS INFLEXIBL E PROPOSITION OF LAW THAT AN ORDER OF REMAND ON MISCELLANEOUS APPLICATIO N UNDER SECTION 254(2) COULD BE WARRANTED, MERELY BECAUSE THE TRIBU NAL HAD RELIED UPON A JUDGMENT WHICH WAS NOT CITED BY EITHER PARTY BEFORE IT (INVENTURE GROWTH AND SECURITIES LTD (2010) 324 ITR 319 BOM.). BEFORE US THE LEARNED COUNSEL COULD NOT BRING OUT A NY ARGUABLE DISTINCTION HOW THE CASE LAW RELIED BY BENCH ARE NO T APPLICABLE TO THE ASSESSEES CASE SO AS TO CONSIDER THAT THESE CA SES RELIED UPON WERE WRONGLY CONSIDERED. 6. NOT ONLY THE ABOVE, AFTER THE ORDER HAS BEEN PAS SED BY THE ITAT, ASSESSEE PREFERRED AN APPEAL TO THE HON'BLE HIGH CO URT AND WAS SUBJECT MATTER OF REVIEW BY THE HON'BLE HIGH COURT, WHICH WAS DISMISSED. ONCE THE APPEAL WAS DISMISSED BY THE HON 'BLE HIGH COURT, EVEN FOR TECHNICAL REASONS AS STATED, WE ARE OF THE OPINION THAT THE ITAT HAS NO POWER EITHER TO RECALL THE ORD ER OR TO REVIEW THE DECISION. 7. THE LEARNED COUNSEL RELIED UPON THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF NARESH K. PAHUJA VS. ITAT IN W .P. NO.2515 OF 2008 DATED 19/1/2009. THE FACTS IN THE SAID CASE MO RE OR LESS SIMILAR TO THE ASSESSEES CASE IN WHICH THE TRIBUNA L DID NOT ENTERTAIN THE MISCELLANEOUS APPLICATION. THE FACTS AS MENTIONED IN THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT ARE A S UNDER: 3. THE PETITIONER HAD FILED HIS RETURN OF INCOME F OR THE A.Y 1995-96 UNDER SECTION 139(1) OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT) DECLARING TOTAL INCOME O F MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 8 OF 13 ` .59,050/- WHICH WAS PROCESSED AND ACCEPTED UNDER SECTION 14391)(A) OF THE ACT WITHOUT ANY ADJUSTMENT . DURING THE YEAR UNDER CONSIDERATION THE PETITIONER HAD RECEIVED THREE GIFTS. THE SAID GIFTS WERE CREDITED TO THE PETITIONERS CAPITAL ACCOUNT. THE BUSINESS PREMISES OF THE PETITIONER WERE SUBSEQUENTLY SURVEYED UNDER SECTION 133A AND THE STATEMENTS OF THE PETITIONER AND DONOR MR. KISHAN PUNJAB WERE RECORDED. 4. THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTIO N 148 OF THE ACT IN RESPONSE TO WHICH THE PETITIONER FILE D HIS RETURN OF INCOME ON 20/9/1999 DECLARING THE SAME INCOME. THE PETITIONER FILED CERTAIN DOCUMENTS TO SUBSTANTIATE THE GIFTS. THE ASSESSING OFFICER HOWEV ER, MADE AN ADDITION UNDER SECTION 68 OF THE SAID ACT I N RESPECT OF THE AFORESAID GIFTS. 5. THE PETITIONER CARRIED AN APPEAL TO THE TRIBUNAL . BY ORDER DATED 10/7/2007 THE TRIBUNAL DISMISSED THE PETITIONERS APPEAL. AS THE ORDER OF THE TRIBUNAL S UFFERED FROM VARIOUS MISTAKES APPARENT ON RECORD, THE PETIT IONER FILED M.A. NO.730/M/07 PRAYING FOR RECTIFICATION OF MISTAKES. BY THE IMPUGNED ORDER THE SAID APPLICATIO N WAS DISMISSED. THE MAIN GRIEVANCE OF THE PETITIONER BEFORE THE TRIBUNAL WAS THAT THE TRIBUNAL RELIED UP ON CERTAIN JUDGMENTS OF WHICH THE PETITIONER HAD NO NO TICE. THEY WERE NOT CITED BY THE DEPARTMENTAL REPRESENTAT IVE. THE TRIBUNAL ALSO DID NOT INDICATE THAT IT WAS RELY ING ON THOSE JUDGMENTS. THE PETITIONER IS PARTICULARLY AGG RIEVED BY THE RELIANCE PLACED ON THE SUPREME COURTS JUDGM ENT IN CIT V/S. P. MOHHANKALA (2007) 291 ITR 278 (SC). ACCORDING TO THE PETITIONER, NO OPPORTUNITY WAS GIV EN TO HIM TO EXPLAIN HOW THE SAID JUDGMENT IS NOT APPLICA BLE TO THE FACTS OF THE CASE. THE PETITIONER IS ALSO AGGRI EVED BY THE FACT THAT THE STATEMENT OF THE DONOR MR. PUNJAB I DATED 9/8/1999 WAS NOT CONSIDERED BY THE TRIBUNAL. 8. THE FINDINGS OF THE HON'BLE BOMBAY HIGH COURT ST ATED IN PARA 6 & 7 WHILE ALLOWING THE WRIT PETITION ARE AS UNDER: 6. LEARNED COUNSEL FOR THE PETITIONER REITERATED T HE SAME GRIEVANCE. WE FIND SUBSTANCE IN HIS SUBMISSION. IN VIEW OF THE FACT THAT THE IMPUGNED JUDGMENT IS DELIVERED WITHOUT TAKING INTO CONSIDERATION THE DONORS STATE MENT, WE DEEM IT PROPER TO SET ASIDE THE ORDER AND REMAND THE APPLICATION TO THE TRIBUNAL WITH DIRECTION TO DECID E IT MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 9 OF 13 AFRESH AFTER HEARING THE PARTIES IN ACCORDANCE WITH LAW. ORDER ACCORDINGLY. 7. WE MAKE IT CLEAR THAT WE HAVE NOT EXPRESSED OUR OPINION ON THE MERITS OF THE CASE AND THE TRIBUNAL SHALL HEAR AND DISPOSE OF THE MATTER INDEPENDENTLY . 9. AS CAN BE SEEN FROM THE ABOVE, EVEN THOUGH THE P ETITIONER URGED THAT NO OPPORTUNITY WAS GIVEN TO HIM TO EXPLAIN HOW SAID JUDGMENTS WERE NOT APPLICABLE TO THE FACTS OF THE C ASE, THE MATTER WAS REMANDED TO THE TRIBUNAL ONLY ON FACTUAL BASIS THAT THE STATEMENT OF THE DONOR MR. PUNJABI WAS NOT CONSIDER ED BY THE TRIBUNAL. NO SUCH MISTAKE HAS HAPPENED IN THIS CASE AS ALL THE MATERIAL PLACED BEFORE THE TRIBUNAL WAS CONSIDERED. IN FACT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. EA RNEST EXPORTS LTD, AGAIN RELIED UPON BY THE LEARNED COUNSEL, IN I TA NO.26 OF 2010 DATED 25.2.2010, WHILE DISMISSING THE APPEAL HAS S TATED THE PARAMETERS OF JURISDICTION UNDER SECTION 254(2) AS UNDER: 8. SECTION 254(2) EMPOWERS THE TRIBUNAL TO RECTIF Y A MISTAKE APPARENT FROM THE RECORD AND FOR THAT PURPOSE TO AMEND ANY ORDER PASSED BY IT. THE SUPREME COURT HAS HELD IN ITS JUDGMENT IN HONDA SIEL POWER PRODUCTS LTD V/S. CIT (SUPRA) THAT THE UNDERLYING PURPOSE OF SECTION 254(2) IS BASED ON TH E FUNDAMENTAL PRINCIPLE THAT A PARTY APPEARING BEFORE THE TRIBUNAL SHOULD NOT SUFFER ON ACCOUNT OF A MISTAKE COMMITTED BY THE TRIBUNAL. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION1 IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT AND IT HAS NOTHING TO DO W ITH THE CONCEPT OF THE INHERENT POWER TO REVIEW. THE SUPREME COURT HELD THAT THE TRIBUNAL WOULD BE REGARDED AS HAVING COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH IS ALREADY ON RECORD . IN THAT CASE, A DECISION OF THE TRIBUNAL WHICH WAS CITED BEFORE IT, HAD BY OVERSIGHT BEEN OVERLOOKED I N THE JUDGMENT DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF THE ADMISSIBILITY OF A CLAIM FOR ENHANCED DEPRECIATION UNDER SECTION 43-A. THE TRIBUNAL WAS HELD TO BE ENTITLED TO CORRECT ITS MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 10 OF 13 ERROR SO AS TO DEAL WITH THE DECISION WHICH WAS CITED. 9) IN THE PRESENT CASE, THE TRIBUNAL IN ITS ORDER D ATED 31ST AUGUST,2006 SPECIFICALLY DEALT WITH THE DECISIONS OF THE AHMEDABAD AND MUMBAI BENCHES OF THE TRIBUNAL IN PRATIBHA SYNTEX AND PINK STAR (SUPRA). THE TRIBUNAL HELD THAT THE DECISION OF PRATIBHA SYNTEX WAS NOT RELEVANT TO THE ISSUE INVOLVED AND THAT THE DECISION IN PINK STAR CONTAIN ED NO DIRECT DISCUSSION REGARDING THE NATURE OF A DEPB LICENSE. AT THIS STAGE, WE ARE NOT CONCERNED WITH T HE CORRECTNESS OF THE DETERMINATION MADE BY THE TRIBUNAL IN ITS EVALUATION OF THE TWO DECISIONS IN ITS ORIGINAL JUDGMENT. THE POINT IS THAT BOTH THE DECISIONS WHICH WERE CITED BEFORE THE TRIBUNAL WERE DULY CONSIDERED AND DISTINGUISHED. THE TRIBUNAL WHILE DEALING WITH THE ALLOWABILITY OF THE OTHER CLAIMS FOR DEDUCTION UNDER SECTION 8OHHC OBSERVED THAT THE TOTAL INCOME AS PER THE COMPUTATION OF THE ASSESSEE WAS MORE THAN `.32CRORES AND THE DEDUCTION WAS ROUGHLY OF THE SAME AMOUNT. IN SPITE OF THAT, THE ASSESSING OFFICER DEALT WITH THE ASSESSMENT IN A TWO PAGE ORDER CONTAINING ONLY NINE PERFUNCTORY SENTENCES. HOWEVER, THE DISMISSAL OF TH E APPEAL OF THE ASSESSEE WAS NOT BASED ONLY ON THAT GROUND SINCE THE TRIBUNAL EVALUATED THE ISSUE ON MERITS BY DEALING WITH THE TWO DECISIONS WHICH WERE CITED BY THE ASSESSEE. WHEN THE APPLICATION UNDER SECTION 254(2) WAS TAKEN UP BY THE TRIBUNAL, ONCE AGAIN RELIANCE WAS SOUGHT TO BE PLACED ON THE DECISIONS OF THE MUMBAI BENCH IN PINK STAR AND OF THE AHMEDABAD BENCH IN PRATIBHA SYNTEX. THE TRIBUNAL, WHILE DEALING WITH THE APPLICATION UNDER SECTION 254(2) VIRTUALLY RECONSIDERED THE ENTIRE MATTER AND THIS TIME CAME TO THE CONCLUSION THAT TH E AHMEDABAD BENCH HELD IN PRATIBBA SYNTEX THAT A DEPB LICENSE WAS ELIGIBLE FOR DEDUCTION UNDER SECTION 8OHHC AND THAT THIS VIEW WAS REITERATED BY THE MUMBAI BENCH IN PINK STAR. THIS AMOUNTED TO A RE-APPRECIATION OF THE CORRECTNESS OF THE EARLIER DECISION ON MERITS. THIS WAS IMPERMISSIBLE. RE- EVALUATING THE CORRECTNESS ON MERITS OF AN EARLIER DECISION LIES BEYOND THE SCOPE OF THE POWER CONFERRED UNDER SECTION 254(2). MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 11 OF 13 10) THE POWER UNDER SECTION 254(2) IS CONFINED TO A RECTIFICATION OF A MISTAKE APPARENT ON RECORD. THE TRIBUNAL MUST CONFINE ITSELF WITHIN THOSE PARAMETERS. SECTION 254(2) IS NOT A CARTE BLANCHE FOR THE TRIBUNAL TO CHANGE ITS OWN VIEW BY SUBSTITUTING A VIEW WHICH IT BELIEVES SHOULD HAVE BEEN TAKEN IN THE FIRST INSTANCE. SECTION 254(2) IS NOT A MANDATE TO UNSETTLE DECISIONS TAKEN AFTER DUE REFLECTION. THE PROVISION EMPOWERS THE TRIBUNAL TO CORRECT MISTAKES, ERRORS AND OMISSIONS APPARENT ON THE FACE. THE SECTION IS NOT AN AVENUE TO REVIVE A PROCEEDING BY RECOURSE TO DISINGENUOUS ARGUMENT NOR DOES IT CONTEMPLATE A FRESH LOOK AT A DECISION RECORDED ON MERITS, HOWEVER APPEALING AN ALTERNATE VIEW MAY SEEM. UNLESS A SENSE OF RESTRAINT IS OBSERVED, JUDICIAL DISCIPLINE WOULD BE THE CASUALTY. THAT IS NOT WHAT PARLIAMENT ENVISAGED. 11) THE TRIBUNAL HAS ALSO DEALT WITH THE DECISION O F THE MUMBAI BENCH IN CROWN FROZEN FOODS (SUPRA) WHICH DOES NOT MATERIALLY PLACE THE MATTER BEYOND THE EARLIER DECISION IN PRATIBHA SYNTEX. IN FACT, T HE DECISION IN CROWN FROZEN FOODS RECORDS THE SUBMISSION OF THE ASSESSEE AS HAVING RELIED UPON THE DECISION OF THE AHMEDABAD BENCH IN PRATIBHA SYNTEX. THAT APART, IN CROWN FROZEN FOODS, THE TRIBUNAL HELD THAT ON THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, IT CANNOT BE SAID THAT T HE ORDER OF THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. OBVIOUSLY, THEREFORE, THA T DECISION TURNED ON ITS OWN FACTS AND CIRCUMSTANCES. ABOVE ALL, AS NOTED BEFORE, THE SPECIFIC ARGUMENT I N THAT CASE, OF THE ASSESSEE WAS THAT , THE ORDER OF THE ASSESSING OFFICER COULD NOT TREATED AS ERRONEOUS BECAUSE THE ACTION OF THE ASSESSING OFFICER IN ALLOWING A DEDUCTION UNDER SECTION 8OHHC IN RESPECT OF THE DEPB LICENSE WAS IN ACCORDANCE WITH THE VIEW TAKEN BY THE TRIBUNAL IN PRATIBHA SYNTEX. AS WE HAVE OBSERVED EARLIER, IN ITS ORIGINAL DECISI ON, THE TRIBUNAL HAD DISTINGUISHED THE DECISION IN PRATIBHA SYNTEX. MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 12 OF 13 12) FOR ALL THESE REASONS, THE EXERCISE OF JURISDICTION BY THE TRIBUNAL IN THE PRESENT CASE CANNOT BE HELD TO BE RELATABLE TO THE PARAMETERS OF SECTION 254(2). THIS IS NOT A CASE WHERE THE TRIBUNAL HAD FAILED TO CONSIDER A DECISION THAT WAS CITED, AS WAS THE CASE BEFORE THE SUPREME COURT IN HONDA SIEL POWER PRODUCTS LTD. THE TRIBUNAL HAD EVALUATED THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN IT ORIGINALLY DISMISSED THE APPEAL OF THE ASSESSEE AGAINST THE EXERCISE OF JURISDICTION UNDER SECTION 263 BY THE CIT. WHETHER THE TRIBUNAL WAS ON MERITS CORRECT OR OTHERWISE IN DISMISSING THE APPEAL, IS NOT A MATTER WHICH FALLS FOR DETERMINATION IN THIS PROCEEDING. IF THE ASSESSEE IS AGGRIEVED BY THE MERITS, OF THE DETERMINATION BY THE TRIBUNAL WHILE DISMISSING THE APPEAL, IT IS AT LIBERTY TO PURSUE ITS REMEDY IN ACCORDANCE WITH LAW. THE OBSERVATIONS MADE BY US IN THIS JUDGMENT ARE, THEREFORE, CONFINED TO OUR DECISION ON THE EXERCISE OF JURISDICTION UNDER SECTION 254(2), BY THE TRIBUNAL. (E MPHASIS SUPPLIED) RELYING ON THE PRINCIPLES LAID DOWN, THE TRIBUNALS POWER WHILE EXERCISING THE JURISDICTION UNDER SECTION 254(2) WA S ONLY LIMITED TO RECTIFYING AN APPARENT MISTAKE. WHETHER THE TRIBUNA L WAS, ON MERITS CORRECT OR OTHERWISE IN DECIDING AN APPEAL, CANNOT BE A MATTER FOR RECTIFICATION UNDER SECTION 254(2). THIS PRINCIPLE WAS ALREADY ESTABLISHED BY THE BOMBAY HIGH COURT IN THE CASE OF RAMESH ELECTRIC AND TRADING CO.,203 ITR 497 (BOM.). 10. FOR THESE REASONS, WE ARE OF THE OPINION THAT T HE PRAYER MADE BY THE ASSESSEE CANNOT BE ENTERTAINED AT THIS STAGE AS THERE IS NO APPARENT MISTAKE WHICH CAN BE RECTIFIED. AND FURTHE R HAVING PREFERRED AN APPEAL TO THE HON'BLE HIGH COURT, THIS FORUM HAS NO LOCUS STANDI TO EITHER RECTIFY OR RECALL ITS ORDER ON MERITS AS THE SAID ORDER GOT MERGED WITH THE ORDER OF THE HON'BLE HIGH COURT. FOR THESE REASONS, WE DECLINE TO CONSIDER THE PRAYER MA DE TO REVIEW THE ORDER. MA NO 287 OF 2011 IN ITA NO.5725 OF 2006 LOKESH GOEL (HUF) MUMBAI-F BENCH PAGE 13 OF 13 11. IN THE RESULT, THE MISCELLANEOUS APPLICATI ON FILED BY ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH APRIL, 2012. SD/- SD/- (D.K.AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 17 TH APRIL, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI