IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM Miscellaneous Application No.3/SRT/2023 [Arising out of ITA No.18/SRT/2017] Assessment Year: (2014-15) (Physical Hearing) The ACIT, Central Circle-3, Surat. Vs. Shri Dharmesh Padamshibhai Patel, 07, Green House, Kailash nagar, Sagrampura, Surat. (Appellant) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABGPP6255P Appellant by Shri Vinod Kumar, Sr. DR Respondent by Shri Aditya Nemani, CA with Ms Shruti Shah, CA Date of Hearing 17/03/2023 Date of Pronouncement 17/04/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: By way of the captioned Miscellaneous Application, the Revenue has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961( in short ‘ the Act’) has crept in the order of the Tribunal dated 16.08.2022. 2. The case of the Revenue in this Miscellaneous Application is that Tribunal should not have remitted the issue back to the file of Assessing Officer only to verify ‘identity’. In view of the above facts and circumstances of the case, the decision of the Hon'ble ITAT to set aside the matter to the AO is not acceptable on the reason that while passing the order by the Hon'ble ITAT, a mistake has crept in the order of the Hon'ble ITAT wherein it has been held that the creditworthiness of the creditors and genuineness of transaction have been established, despite the facts that the identity of creditors have not been proved and that the three tenets of the issue operate in the sequence of (i)Identity of creditors, (ii) creditworthiness of creditors and (iii) genuinity of transactions and no in any random sequence or Page | 2 MA.3/SRT/2023/AY.2014-15 Dharmesh P. Patel basis. The Ld. Departmental Representative (Ld. DR) contended that three ingredients of section 68 namely, identity, genuineness and creditworthiness have to be satisfied in sequence. 3. Therefore, Learned Departmental Representative (Ld. DR) for the Revenue contended that in the assessee’s case under consideration, entire three ingredients have not been satisfied and the Tribunal has remitted the issue back to the file of the Assessing Officer only to examine the identity of the parties, however the creditworthiness and genuineness have also not been proved in the case of assessee, therefore the decision of the Tribunal in para no.12 of its order dated 16.08.2022, needs to be corrected and the Tribunal ought to have remitted the issue back to the file of the Assessing Officer to prove the creditworthiness, genuineness and identity of the parties. Therefore, this mistake apparent from record is to be rectified. 4. On the other hand, Ld. Counsel for the assessee submitted that the genuineness and creditworthiness of the transactions have been proved by the assessee. Only the issue was that during the assessment stage, the Assessing Officer issued notices under section 133(6) of the Act to the concerned parties, however the parties were not available on the address given to the Department and notices under section 133(6) of the Act were not served. The inspector was appointed to locate and trace these parties, however Inspector reported that these parties were not available on the address given, therefore Tribunal observed that identity of the parties were not proved, therefore the Tribunal has remitted the issue back to the file of the Assessing Officer. There is no apparent mistake in the order of the Tribunal. 5. We have heard both the parties. We note that assessee submitted bank statements, PAN, address, Income Tax Return, Balance sheet, profit and loss account and after verification of these documents and evidences, the Tribunal concluded that assessee has proved genuineness and creditworthiness of transactions. However, notices issued by Assessing Officer under section 133(6) were returned back, moreover, the inspector appointed by the Assessing Officer Page | 3 MA.3/SRT/2023/AY.2014-15 Dharmesh P. Patel reported that these parties are not available on the address given to the Department, hence Tribunal concluded that ‘identity’ of these parties have not been proved, hence matter was remitted back to the file of Assessing Officer to verify ‘identity’ of these parties. We have gone through the findings of Tribunal and noted that there is no mistake apparent from record, hence we dismiss the Miscellaneous Application filed by Revenue. 6. In the result, Miscellaneous Application filed by the Revenue is dismissed. Order is pronounced on 17/04/2023 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 17/04/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat