SHRI RAGHU RAJ CHETHLEY, MOGA V. INCOME TAX OFFICER, WARD 2, MOGA

MA 30/ASR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3568 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-08-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 29-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 142(1); 254(2); 64; 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. B.R. BASKARAN , ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER M.A NO.30/ASR/2019 (ARISING OUT OF I.T.A NO.645/ASR/2018) ASSESSMENT YEAR: 2011-12 RAGHU RAJ CHETHLEY 139-142, MAIN BAZAR MOGA [PAN:ABYPC 2989H] VS. INCOME TAX OFFICER WARD-2, MOGA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. Y. K. SUD (LD. CA) RESPONDENT BY: SH. AMARPAL MEENA (LD. DR) DATE OF HEARING: 30.08.2019 DATE OF PRONOUNCEMENT: 29 10.2019 ORDER PER N.K.CHOUDHRY, JM: THE ASSESSEE BY WAY OF THIS MISCELLANEOUS APPLICATION DATED 26.07.2019 U/S 254(2) OF THE INCOME TAX ACT, 196 1 (HEREINAFTER CALLED AS THE ACT) HAS SOUGHT RECTIFICATIO N OF THE ORDER BY AMENDMENT IN ACCORDANCE WITH LAW BY MENTIONIN G THE FOLLOWING FACTS. 1. THAT THE ORDER IN THE ABOVE SAID APPEAL WAS PASSED ON 22.03.2019 AND PERUSAL TO THE ORDER PASSED SHOWS TH E MISTAKES MENTIONED HEREINAFTER. 2. THAT THE APPEAL OF THE ASSESSEE HAS BEEN REST ORED BACK TO THE CIT(A) FOR DISPOSAL ON MERITS BY GIVING THE FOLLOWING FINDINGS IN PARA 6.2 PAGE 10 OF THE ORDER HENCE, F OR THE END OF JUSTICE, WE FEEL IT APPROPRIATE TO REMAND BACK T HIS CASE TO THE FILE OF THE LD.CIT(A) TO DECIDE AFRESH THE APPE AL OF THE ASSESSEE WHILE AFFORDING REASONABLE OPPORTUNITIES O F BEING M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 2 HEARD. IT IS SUFFICE TO SAY THAT THE APPELLANT SHAL L CO-OPERATE WITH THE APPELLANT PROCEEDINGS AND SHALL APPEAR AS AND WHEN REQUIRED BY THE LD. CIT(A) AND IN CASE OF DEFAULT T HE LD. CIT(A) AT LIBERTY TO DISPOSE OF THE APPEAL ON MERIT EX-PAR TE. AS THE LD. CIT(A) HAS PASSED THE ORDER EX-PARTE THEREFORE, WE ARE NOT ADVERTING TO THE OTHER GROUNDS/ISSUES RAISED IN THE APPEAL AND THE LD. CIT(A) SHALL DECIDE THE APPEAL WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS MADE ABOVE. 3. THAT IN PARA 6.1 OF THE ORDER THE ITAT HAS GIVEN TH E FOLLOWING FINDINGS APPEARING AT PAGE NO. 9 OF THE O RDER FROM THE REPLIES, IT CLEARLY REFLECTS THAT THE APPELLANT CATEGORICALLY TAKEN THE STAND THAT AMOUNT OF RS.36 LACS FOR THE A SST. YEAR 2011-12 DOES NOT BELONG TO THE APPELLANTS WIFE BUT BELONGS TO THE APPELLANT HIMSELF. FROM THE CATEGORICAL ACCEPTA NCE ON THE PART OF THE APPELLANT, THE ARGUMENT TO THE EFFECT T HAT AS THE AMOUNT OF RS.36 LACS WAS FOUND IN THE ACCOUNTS OF T HE APPELLANTS WIFE BY THE REVENUE DEPARTMENT THEREFOR E COULD HAVE BEEN SUBJECTED TO ADDITION IN THE APPELLANTS WIFE ASSESSMENT ONLY, IS DEVOID OF MERITS AND HENCE REJE CTED. 4. THAT BOTH THE FINDING OF ITAT ARE CONTRADICTORY TO EACH OTHER BECAUSE THE FINDING MENTIONED IN PARA 2 OF TH IS APPLICATION CLEARLY STATES THAT CIT(A) SHALL DECIDE THE APPEAL WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS MADE ABOVE, AND ON THE OTHER HAND THE ITAT HAS COMMENTED ON MERITS AS STATED ABOVE. 5. THAT ITAT SHOULD HAVE REFRAINED FROM MAKING ANY COMMENT ON THE MERITS WHICH IT HAS WRONGLY COMMENTE D UPON IN ITS FINDING IN PARA 6.1 OF THE ORDER. 6. THAT EVEN OTHERWISE WHILE COMMENTING UPON THE MER ITS THE ITAT ONLY CONSIDERED THE SUBMISSIONS OF THE ASS ESSEE MADE BEFORE THE ITO AND REPRODUCED THE SAME IN PARA 6 & 7 OF THE ORDER WITHOUT CONFRONTING THE SAME TO THE UN DERSIGNED COUNSEL AND FURTHER THE LEGAL SUBMISSION OF THE UND ERSIGNED COUNSEL HAS NOT BEEN CONSIDERED WHERE IT WAS SUBMIT TED THAT NO ADDITION CAN BE MADE U/S 68 UNLESS THERE IS A CR EDIT IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE WHICH THE AO FIND S UNEXPLAINED AND IT WAS SUBMITTED THAT THE CREDIT OF RS.36 LACS APPEARED IN THE BANK ACCOUNT OF THE WIFE OF THE ASS ESSEE SMT. HEATHER CHETHLEY. THEREFORE ADDITION COULD HAVE MAD E ONLY IN THE HANDS OF THE WIFE WHERE THE CREDIT APPEARED. M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 3 IN THIS REGARD THE COUNSEL ALSO CITED THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS K. CHINNATHAMBAN - 292 ITR 681 WHEREIN THE HONBLE SUPREME COURT HAD LAID DOWN THE LAW HELD, REVERSIN G THE DECISION OF THE HIGH COURT, THAT THE ONUS OF PR OVING THE SOURCE OF DEPOSIT PRIMARILY RESTED ON THE PERSO NS IN WHOSE NAMES THE DEPOSITS APPEARED IN THE VARIOUS BANKS. THERE WAS NO EVIDENCE TO SHOW THAT MEMBERS O F THE PUBLIC HAD BEEN PLACING THEIR DEPOSITS WITH THE FIRM THROUGH THEIR RELATIVES AND FRIENDS AND THERE WAS N O QUESTION OF LINKING UP ALL THOSE AMOUNTS WITH THE B OOKS OF THE FIRM. AS C THE ASSESSEE, WAS NOT ABLE TO EXP LAIN THE SOURCE OF THE MONEYS DEPOSITED, THE DEPARTMENT WAS RIGHT IN MAKING THE INDIVIDUAL ASSESSMENT IN TH E NAME OF THE ASSESSEE. 7. THAT SINCE MISTAKES POINTED OUT ABOVE ARE APPARENT FROM RECORD YOU ARE REQUESTED TO RECTIFY THE SAME BY AME NDING YOUR ORDER IN ACCORDANCE WITH THE LAW. 2. AT THE TIME OF ARGUMENT OF THIS MISC. APPLICATION, THE LD. AR HAS SUBMITTED THAT DURING THE COURSE OF ARGUMENT OF ITA NO.645/ASR/2018 BEFORE THE HONBLE BENCH, IT WAS SUBMIT TED THAT AS PER PROVISIONS OF SEC.68 NO ADDITION CAN BE MAD E UNLESS THERE IS A CREDIT IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WH ICH THE AO FINDS UNEXPLAINED. IN THE CASE OF APPELLANT, TH ERE WAS NO CREDIT APPEARING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AS THE CREDIT OF RS.36 LACS APPEARED ONLY IN THE BANK ACCOUNT O F MS. HEATHER CHETHLEY, WIFE OF THE ASSESSEE, THEREFORE, THE ADDITION COULD BE MADE ONLY IN HER HANDS. THE ASSESSEE IN SUPPORT O F HIS CONTENTION ALSO RELIED UPON THE JUDGMENT OF HONBLE AP EX COURT IN THE CASE OF CIT VS. CHINNATHAMBAN (2007) 292 ITR 681(SC) , HOWEVER, IN THE ORDER NEITHER THE SUBMISSION NOR THE J UDGMENT OF THE HONBLE SUPREME COURT HAS BEEN CONSIDERED WHILE PASSING THE ORDER. M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 4 3. ON THE CONTRARY, THE LD. DR SUBMITTED THAT THE ORDE R UNDER CHALLENGE DOES NOT SUFFER FROM ANY PERVERSITY, I LLEGALITY AND/OR IMPROPRIETY AND EVEN NO MISTAKE IS APPARENT FR OM RECORD WHICH CAN BE RECTIFIED. 4. HAVING HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. LET US TO REPRODUCE THE RELEVANT PROVISION OF LAW AS APPLICABLE FOR RECTIFICATION OF THE ORDER ON TH E GROUND OF ANY MISTAKE APPARENT FROM THE RECORD. ORDERS OF APPELLATE TRIBUNAL 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH T HE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (1A) [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PA SSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECT ION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESS ING OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTH ERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNA L HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AN D HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D : PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTO BER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES. 4.1 FROM THE PROVISIONS OF SEC.254(2) IT IS CLEAR THAT T RIBUNAL MAY AT ANY TIME WITHIN SIX MONTHS FROM THE END OF TH E MONTH, IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFY ANY M ISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT AND M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 5 SHALL MAKE SUCH AMENDMENT IN APPROPRIATE CASES. FURTHER, MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT FROM T HE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APPLICATION OF SE CTION 254(2), A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM T HE RECORD. 4.2 THE APEX COURT IN MASTER CONSTRUCTION CO. (P.) LTD. V . STATE OF ORISSA [1966] 17 STC 360 , HELD THAT: 'AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECO RD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS F OR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FA CT OR LAW'. 4.3 THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KARAM CHAND THAPAR & BR. P. LTD.,176 ITR 535 HAS HELD AS UN DER: IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENT ENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL F ACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE T RIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOU NT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT AN Y IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, U NLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE- PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT H AS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTA NCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WE RE 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 TRIBUNAL. M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 6 4.4 THE HON'BLE DELHI HIGH COURT IN THE CASE OF RAS BIHARI BANSAL VS. CIT 293 ITR 365, ON THE SCOPE OF RECTIFICATIO N U/S 254(2) OF THE ACT, HAS HELD AS UNDER: SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPAREN T FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT O F A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE U NDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONS IDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER S ECTION 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLI CATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOP E OF THE SECTION. 4.5 IN CONCLUSION, CRUX OF THE PROVISIONS AND JUDGMENTS IS THA T THE SCOPE FOR RECTIFICATION OF THE ORDER IS VERY LIMITED AND DEPENDS UPON THE MISTAKE APPARENT FROM RECORD . T HE TRIBUNAL CAN ONLY RECTIFY ITS MISTAKES APPARENT FROM THE RECORD A ND THE PROVISION OF RECTIFICATION DOES NOT PERMIT THE TRIBUNAL TO REVIEW ITS EARLIER ORDER. THERE IS WIDE DIFFERENCE BETWEEN RECTIF ICATION AND REVIEW. RECTIFICATION IMPLIES CORRECTION OF ERROR AND RE MOVAL OF DEFECT OR IMPERFECTION AND WHILE EXERCISING POWER RECTIF ICATION, THE COURT CAN NOT EXERCISE THE POWER OF REVIEW OR REVISI ON. IT IS WELL SETTLED PRINCIPLE OF LAW THAT REVIEW IS CREATURE OF STATUTE AND IN ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW, EXER CISE OF POWER OF REVIEW UNDER GARB OF RECTIFICATION, MODIFICAT ION AND CORRECTION IS NOT PERMISSIBLE. THE SCOPE AND AMBIT OF THE POWER WHICH COULD BE EXERCISED UNDER SECTION 254(2) OF THE INCOM E TAX ACT 1961 IS CIRCUMSCRIBED AND RESTRICTED WITHIN THE AM BIT OF THE POWER VESTED BY THE SAID SECTION. SUCH A POWER IS NEI THER A M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 7 POWER OF REVIEW NOR IS AKIN TO THE POWER OF REVISION BUT IS ONLY A POWER TO RECTIFY A MISTAKE APPARENT ON THE FACE OF THE RECORD. RECTIFICATION IMPLIES THE CORRECTION OF AN ERROR OR A R EMOVAL OF DEFECTS OR IMPERFECTIONS. IT IMPLIES AN ERROR, MISTAKE O R DEFECT WHICH AFTER RECTIFICATION IS MADE RIGHT. THEREFORE ON THE AFORESAID ANALYZATION, THE INFERENCE CAN BE DRAWN THAT THE MISTA KE APPARENT FROM RECORD CAN BE RECTIFIED BUT NOT OTHERWISE . 5. NOW COMING TO THE INSTANT CASE. THE ASSESSEES MAIN CONTENTION IS THAT AS PER PROVISION OF SEC.68 NO ADDITION CAN BE MADE UNLESS THERE IS A CREDIT I N THE BOOKS OF ACCOUNTS OF THE ASSESSEE. FURTHER, IN THE CASE OF APPELLANT, THERE WAS NO CREDIT APPEARING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND CREDIT OF RS.36 LACS APPEARED ONLY IN T HE BANK ACCOUNT OF M/S HEATHER CHETHLEY, WIFE OF THE ASSESSEE , THEREFORE, THE ADDITION COULD ONLY BE MADE IN HER HA NDS. FURTHER, THE GRIEVANCE OF THE ASSESSEE THAT NEITHER THE SUBMISSION N OR THE JUDGMENT OF THE HONBLE SUPREME COURT HAS BEEN CON SIDERED WHILE PASSING THE ORDER. 6. LET US TO REPRODUCE PARA NO.5 OF THE ORDER DATED 22.03.2019 PASSED BY THE CO-ORDINATE BENCH. 5. ON AGGRIEVED THE APPELLANT CHALLENGED THE IMPUGNED ORDER BY FILING THE INSTANT APPEAL AND SUBMITTED THAT APP ELLANT HAD ENTERED INTO AN AGREEMENT DATED 26.12.2010 FOR THE SALE OF IMMOVABLE PROPERTY SITUATED AT MITTAL ROAD, MOGA FO R RS.1,05,00,000/- WITH SH. HARJIT SINGH THROUGH HIS ATTORNEY MR. MANJIT SINGH CHAHAL AND RECEIVED RS.50 LACS AS EARN EST MONEY IN CASH, OUT OF WHICH AMOUNT OF RS.36 LACS WAS DEPOSIT ED IN THE BANK ACCOUNT OF HIS WIFE SMT. HEATHER CHETHLEY AND REST AMOUNT OF RS. 14,00000/- WAS DEPOSITED IN HIS ACCOUNT THEREFORE T HE DEPOSITS STANDS EXPLAINED. THE LD. A.R. SPECIFICALLY EMPHASI ZED THAT REVENUE DEPARTMENT DETECTED THE AMOUNT OF 36 LACS I N THE ACCOUNT OF APPELLANT'S WIFE AND THEREFORE THE REVENUE DEPAR TMENT COULD M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 8 HAVE MADE THE ADDITION IN HER ASSESSMENT ONLY BUT A T ANY STRETCH OF IMAGINATION, THE AMOUNT OF RS.36,00,000/- CANNOT BE ADDED IN THE INCOME OF THE APPELLANT. 7. FROM PARA NO.5 IT CLEARLY REFLECTS THAT THE CO-ORDINA TE BENCH HAS SPECIFICALLY MENTIONED THE ARGUMENT RAISED BY T HE LD. AR TO THE EFFECT ' THAT REVENUE DEPARTMENT DETECTED THE AMOUNT OF 36 LACS IN THE ACCOUNT OF APPELLANT'S WIFE AND THEREFO RE THE REVENUE DEPARTMENT COULD HAVE MADE THE ADDITION IN HER ASSE SSMENT ONLY BUT AT ANY STRETCH OF IMAGINATION, THE AMOUNT OF RS.36,00, 000/- CANNOT BE ADDED IN THE INCOME OF THE APPELLANT .' 8. PARA NO.6 OF THE ORDER SPEAKS ABOUT THE CONCLUDING PAR T OF THE ORDER ON THE AFORESAID SUBMISSION OF THE LD. AR, WH ICH FOR THE SAKE OF BREVITY AND READY REFERENCE IS REPRODUCED H EREIN BELOW. 6. HAVING HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE OBSERVE THAT THE PROCEEDING S U/S 147 HAVE ALSO BEEN INITIATED AGAINST THE APPELLANT'S WI FE CASE, WHEREIN WHILE RESPONDING THE NOTICES U/S 148 DATED 10.01.2014 AND 142(1) OF THE ACT ISSUED IN THE APPELLANTS WIF E NAME, THE APPELLANT RESPONDED ON BEHALF OF HIS WIFE BY SIGNIN G THE REPLIES HIMSELF. FOR THE SAKE OF BREVITY AND READY REFERENC E THE SAID REPLIES ARE REPRODUCED HEREIN IN BELOW. TO THE INCOME TAX OFFICER WARD-I, MOGA REF: YOUR NOTICE U/S 148 DATED 10.01.2014 IN THE CASE OF MRS. HEATHER CHATHLEY, MOGA FOR THE. AY 2011 -12 SIR, WITH DUE RESPECT AND IN REFERENCE TO YOUR ABOVE REFERRED LETTER IT IS SUBMITTED 1. THAT THE APPELLANT IS A FOREIGN NATIONAL HAVING NO PAN. THE COPIES OF THE PASSPORT ENCLOSED HEREWITH FOR YOUR PERUSAL. 2. THAT THE APPELLANT IS A TRAINED NURSE AND WHENEVER SHE CAME TO INDIA SHE GETS RS. M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 9 10000/- FOR TOWARDS HER SERVICES TO HER HUSBANDS HOSPITAL. 3. THAT THE TRANSACTIONS OF RS. 3600000/- AS MENTIONED IN YOUR LETTER ARE CASH DEPOSITED BY THE HUSBAND OF THE APPELLANT , WHICH HE HAS RECEIVED AS ADVANCE AGAINST HIS PROPERTY FROM MR. MANJIT SINGH CHAHAL S/O ISHAR SINGH CHAHAL R/O VPO KOKRI KALAN, DISTRICT MOGA. THE EVIDENCE OF THE TRANSACTIONS MAY BE PRODUCED IF REQUIRED. YOURS FAITHFULLY SD/- (R.R. CHATLEY) HUSBAND OF HEATHER CHA TLEY TO THE INCOME TAX OFFICER WARD-I, MOGA REF: YOUR NOTICE U/S 142(L)IN THE CASE OF MRS. HE ATHER CHATHLEY, MOGA FOR THE AY 2011-12 SIR, WITH DUE RESPECT AND IN REFERENCE TO YOUR ABOVE REF ERRED LETTER IT IS SUBMITTED 1. THAT THE APPELLANT HAS ALREADY SUBMITTED IN HER PRE VIOUS REPLY THAT SHE IS A FOREIGN NATIONAL MARRIED TO AN INDIAN CITIZEN. SHE HAS NO SOURCE OF INCOME IN INDIA FOR W HICH SHE IS ASSESSED IN INDIA. SHE IS NOT HAVING ANY PAN . 2. THAT DURING THE AY 2011-12 SHE OPENED A BANK ACCOUN T WITH HER HUSBAND MR. RAGHU CHATLEY IN HDFC BANK MOGA. HER HUSBAND MR. RAGHU CHATLEY DEPOSITED A SUM OF RS. 3600000/- DURING THE AY 2011-12 OUT OF THE PROCEEDS OF AGREEMENT TO SELL HIS PROPERTY. A DECLA RATION FORM OF MR. RAGHU CHATLEY IS ATTACHED HEREWITH FOR YOUR PERUSAL. 3. THAT AS PER THE AGREEMENT AS REFERRED IN PARA 2 ABO VE MR. RAGHU CHATLEY ENTERED INTO AN AGREEMENT TO SELL HIS PROPERTY AND RECEIVED RS. 5000000/- FROM MR. MANJIT SINGH CHAHAL S/O ISHAR SINGH, VPO KOKRI KALAN, TEHS IL & DISTT MOGA. MR. MANJIT SINGH ENTERED INTO SUCH AGREEMENT ON BEHALF OF HAIJIT SINGH S/O KARTAR SING H RESIDENT OF VPO KOKRI KALAN, DISTT MOGA, PRESENTLY RESIDING AT 79 MIDDLETON AVENUE, GREENFORD MIDDLESE X UB6 8BG UNITED KINGDOM. M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 10 MR. MANJIT SINGH CHAHAL, GIVEN SUCH AMOUNT OF RS. 50.00 LACS TO MR. RAGHU CHATLEY OUT OF THE PROCEEDS OF SALE OF AGRICULTURAL LAND WHICH BELONGS TO MR. HAIJ IT SINGH, INDEIJIT SINGH AND MR. CHAHAL AS THEIR ATTOR NEY. THE COPIES OF AGREEMENT TO SALE, GPA, JAMABANDI AND SALE DEED OF LAND AND AN AFFIDAVIT OF MR. MANJIT SI NGH CHAHAL ARE ENCLOSED HEREWITH FOR YOUR PERUSAL. 4. THAT A COPY OF A CERTIFICATE FROM NOTARY PUBLIC ADV. KEWAL KRISHAN GUPTA, WITH WHOM THE AGREEMENT TO SAL E IS REGISTERED IS ALSO ENCLOSED HEREWITH. 5. THAT KEEPING IN VIEW OF THE ABOVE IT IS EVIDENT THAT THE DEPOSIT OF RS. 3600000/- IN THE AY 2011-12 DOES NOT BELONG TO THE APPELLANT BUT OF HER HUSBAND. THE SOU RCE OF SUCH DEPOSIT AND THE SOURCE OF THE SOURCE IS DULY EXPLAINED ALONG WITH ALL EVIDENCES RELEVANT FOR YOU FOR THE ASSESSMENT PURPOSE. IN THIS REGARD YOU ARE REQU ESTED TO DO THE NEEDFUL AND OBLIGE. IT YOUR GOODSELF REQUIRE ANY OTHER INFORMATION, KIN DLY DO THE NEEDFUL. Y OURS FAITHFULLY. SD/- (R.R. CHATLEY) HUSBAND OF HEAT HER CHATLEY. 6.1 IN THE AFORESAID REPLIES, THE APPELLANT IN HIS WIFE'S ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER HAS ADMITTED THAT THE APPELLANT'S WIFE IS A FOREIGN NATIONAL HAV ING NO PAN AND IS A TRAINED NURSE AND WHENEVER SHE CAME TO INDIA SHE GETS RS. 10000/- FOR TOWARDS HER SERVICES TO HER HU SBAND'S HOSPITAL. THAT THE TRANSACTIONS OF RS. 3600000/- AS MENTIONED IN YOUR LETTER ARE CASH DEPOSITED BY THE HUSBAND OF THE ASSESSEE , WHICH HE HAS RECEIVED AS ADVANCE AGAINST HIS PROP ERTY FROM MR. MANJIT SINGH CHAHAL S/O ISHAR SINGH CHAHAL R/O VPO KOKRI KALAN, DISTRICT MOGA. THAT DURING THE AY 2011 -12 SHE OPENED A BANK ACCOUNT WITH HER HUSBAND MR. RAGHU CHATLEY I N HDFC BANK MOGA. HER HUSBAND MR. RAGHU CHATLEY DEPOSITED A SUM OF RS. 3600000/- DURING THE AY 2011-12 OUT OF THE PROC EEDS OF AGREEMENT TO SELL HIS PROPERTY. A DECLARATION FROM MR. RAGHU CHATLEY IS ATTACHED HEREWITH FOR YOUR PERUSAL. THAT AS PER THE AGREEMENT AS REFERRED IN PARA 2 ABOVE MR. RAGHU CHA TLEY ENTERED INTO AN AGREEMENT TO SELL HIS PROPERTY AND RECEIVED RS. 5000000/- FROM MR. MANJIT SINGH CHAHAL S/O ISHAR SINGH, VPO K OKRI KALAN, TEHSIL & DISTT MOGA. MR. MANJIT SINGH ENTERED INTO SUCH AGREEMENT ON BEHALF OF HAIJIT SINGH S/O KARTAR SINGH RESIDENT OF VPO KOKRI M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 11 KALAN, DISTT MOGA, PRESENTLY RESIDING AT 79 MIDDLET ON AVENUE, GREENFORD MIDDLESEX UB6 8BG UNITED KINGDOM. MR. MAN JIT SINGH CHAHAL, GIVEN SUCH AMOUNT OF RS. 50.00 LACS TO MR. RAGHU CHATLEY OUT OF THE PROCEEDS OF SALE OF AGRICULTURAL LAND WH ICH BELONGS TO MR. HAIJIT SINGH, INDEIJIT SINGH AND MR. CHAHAL AS THEI R ATTORNEY. THE COPIES OF AGREEMENT TO SALE, GPA, JAMABANDI AND SAL E DEED OF LAND AND AN AFFIDAVIT OF MR. MANJIT SINGH CHAHAL ARE ENC LOSED HEREWITH FOR YOUR PERUSAL. THAT A COPY OF A CERTIFICATE FROM NOTARY PUBLIC ADV. KEWAL KRISHAN GUPTA, WITH WHOM THE AGREEMENT TO SAL E IS REGISTERED IS ALSO ENCLOSED HEREWITH. KEEPING IN VIEW OF THE ABOVE IT IS EVIDENT THAT THE DEPOSIT OF RS. 3600000 /- IN THE AY 2011-12 DOES NOT BELONG TO THE ASSESSEE BUT OF HER HUSBAND. THE SOURCE OF SUCH DEPOSIT AND THE SOURCE OF THE SO URCE IS DULY EXPLAINED ALONG WITH ALL EVIDENCES RELEVANT FOR YOU FOR THE ASSESSMENT PURPOSE. IN THIS REGARD YOU ARE REQUESTE D TO DO THE NEEDFUL AND OBLIGE. FROM THE REPLIES, IT CLEARLY REFLECTS THAT THE APP ELLANT CATEGORICALLY TAKEN THE STAND THAT AMOUNT OF RS.36 LACS FOR THE ASST. YEAR: 2011-12, DOES NOT BELONG TO THE APPELLA NTS WIFE BUT BELONGS TO THE APPELLANT HIMSELF. FROM THE CATEGORI CAL ACCEPTANCE ON THE PART OF THE APPELLANT, THE ARGUME NT TO THE EFFECT THAT AS THE AMOUNT OF RS. 36 LAKHS WAS FOUND IN THE ACCOUNTS OF THE APPELLANTS WIFE BY THE REVENUE DEP ARTMENT THEREFORE COULD HAVE BEEN SUBJECTED TO ADDITION IN THE APPELLANTS WIFE ASSESSMENT ONLY, IS DEVOID OF MERI TS AND HENCE REJECTED. 6.2 THE ORDER PASSED BY THE LD. CIT(A) IS EX-PARTE ON NON- APPEARANCE OF THE APPELLANT AND IN IMPUGNED ORDER I T WAS OBSERVED BY THE LD. CIT(A) THAT FROM THE ABOVE SEQU ENCE OF EVENTS IT CAN BE SEEN THAT NEITHER THE APPELLANT NO R HIS COUNSEL ATTENDED THE HEARING ON EACH OCCASION ALTHOUGH HE H AS BEEN ISSUED NOTICES FOR HEARING ON VARIOUS DATES, WHICH HAVE BEEN DULY SERVED ALSO. IT WAS FURTHER OBSERVED THAT APP ELLANT HAD ALSO FAILED TO FILE ANY WRITTEN SUBMISSIONS IN SUPP ORT OF VARIOUS GROUNDS OF APPEAL. FURTHER AS THE APPELLANT HAS NOT AVAILED ANY OF THE OPPORTUNITIES ALLOWED TO HIM TO REPRESENT TH E CASE, THEREFORE IN HER OPINION, THE APPELLANT IS NOT INT ERESTED IN PURSUING THE APPEAL MATTER AND HAS TO SAY NOTHING I N THE MATTER IN ADDITION TO GROUNDS OF APPEAL TAKEN BY HIM. HOWEVER, WE OBSERVE FROM THE DATES OF HEARING AS MENTIONED IN PARA NO.4 OF THE IMPUGNED ORDER, THE A PPELLANT ON 20.12.2017, 22.01.2018 & 06.09.2018 ATTENDED THE AP PELLATE PROCEEDINGS AND ALSO FILED WRITTEN SUBMISSIONS AND PAPER BOOK, THEREFORE THE OBSERVATIONS OF THE LD. CIT(A) TO THE EFFECT THAT THE APPELLANT HAS NOT AVAILED ANY OF THE OPPORTUNIT IES ALLOWED TO HIM TO REPRESENT THE CASE AND ALSO FAILED TO FILE A NY WRITTEN M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 12 SUBMISSIONS IN SUPPORT OF VARIOUS GROUNDS OF APPEAL ARE CONTRARY TO THE FACTS ON RECORD WHEREIN IT REFLECTS THAT THE APPELLANT HAD FILED WRITTEN SUBMISSIONS AND PAPER B OOK AND IT IS ALSO A FACT THAT THE APPELLANT HAD RAISED SOLE GROU ND OF APPEAL THEREFORE FILLING OF WRITTEN SUBMISSIONS IN SUPPOR T OF VARIOUS GROUNDS OF APPEAL AS OBSERVED, DID NOT ARISE. HENCE, FOR THE END OF JUSTICE, WE FEEL IT APPROPRIATE TO REMAND BACK T HIS CASE TO THE FILE OF THE LD. CIT(A) TO DECIDE AFRESH THE APPEAL OF THE ASSESSE WHILE AFFORDING REASONABLE OPPORTUNITIES OF BEING H EARD. IT IS SUFFICE TO SAY THAT THE APPELLANT SHALL CO-OPERATE WITH THE APPELLANT PROCEEDINGS AND SHALL APPEAR AS AND WHEN REQUIRED BY THE LD. CIT(A) AND IN CASE OF DEFAULT THE LD. CIT(A ) AT LIBERTY TO DISPOSE OF THE APPEAL ON MERIT EX-PARTE . AS THE LD. CIT(A) HAS PASSED THE ORDER EX-PARTE THEREFORE, WE ARE NOT ADV ERTING TO THE OTHER GROUNDS/ISSUES RAISED IN THE APPEAL AND THE L D. CIT(A) SHALL DECIDE THE APPEAL WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS MADE ABOVE. 6.3 WE CLARIFY THAT THE APPELLANT DID NOT RAISE THE GROUNDS NO.1 & 2 FOR WANT OF ASSESSMENT ORDER OF HIS WIFE, REASONS RECORDED U/S 147 AND OTHER RELEVANT DOCUMENTS THERE TO, AS WE HAVE REMANDED THE CASE TO THE FILE OF LD. CIT(A) FO R DECISION AFRESH THEREFORE THE APPELLANT SHALL BE AT LIBERTY TO AGITATE THE ORIGINAL GROUND OF APPEAL AS RAISED EARLIER BEFORE THE LD. CIT(A). 9. IT IS A MATTER OF FACT THAT THE CO-ORDINATE BENCH WHI LE PASSING THE ORDER ALSO RECORDED THE FILING OF REPLIES AN D STAND TAKEN BY THE ASSESSEE IN HIS WIFES CASE AND THE PECULIAR F ACTS ARE MATTER OF RECORD AS WELL, BECAUSE THE SAME ALSO MENTI ONED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER DATED 24.10.2018, THEREFORE, THE CONTENTION OF THE LD. AR TO THE EFFECT THAT EVEN OTHERWISE WHILE COMMENTING UPON THE MERITS, THE ITAT ONLY CONSIDERED THE SUBMISSIONS OF THE ASSESSEE MADE BEFORE THE ITO AND REPRODUCED THE SAME IN PARA NO.6-7 OF THE ORDER WITHOUT CONFRONTING THE SAME TO THE UNDERSIGNED COUNSEL, DOES NOT SEEMS TO BE LOGICAL AND HENCE UNTENABLE BECAUSE IT IS A MATTER OF RECORD ALREADY SCRIBED IN THE ASSESSMENT ORDER, THEREFORE, NEED FOR CONFRONTATION NOT NECESSITATED AND THE M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 13 TRIBUNAL IS EMPOWERED TO TAKE THE JUDICIAL NOTE OF THE SAME, WHICH IS THE INSTANT CASE HAS BEEN TAKEN. 10. WITH REGARD TO THE CONTENTION OF THE LD. AR TO THE EFFECT THAT NO ADDITION CAN BE MADE U/S 68 OF THE ACT UNLESS TH ERE IS A CREDIT IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 11. IN OUR CONSIDERED VIEW ONE PERSON CAN NOT TRAVEL ON TW O BOATS AT A SAME TIME, HOWEVER IN THE INSTANT CASE THE ASSE EEE TRIED TO TAKE TWO INCONSISTENT STANDS THEREFORE THE TRIB UNAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD REALISED THAT SINCE THE ASSESSEE HAS TAKEN THE CLEAR-CUT STANDS IN HIS WIFE'S ASSESSMENT PROCEEDINGS THAT THE AMOUNT DEPOSITED IN HIS WIFE'S ACCOU NT BELONGS TO THE ASSESSEE, WHICH THE ASSESSEE HAS RECEIVED AS ADVANCE AGAINST HIS PROPERTY FROM THE BUYER AND IN RE PLY IN RESPONSE TO NOTICE U/S 142(1) OF THE ACT IN HIS ASSESSEES WIF E CASE, SPECIFICALLY ADMITTED THAT THE DEPOSIT OF RS. 36 LACS IN THE ASST. YEAR: 2011-12 DOES NOT BELONGS TO ASSESSEES WIFE BUT BELONGS TO THE ASSESSEE ONLY THEREFORE, THE CO-ORDINATE BENCH WAS CONSTRAINED TO DEAL WITH THE CONTRARY CONTENTION RAI SED AND NEW STAND TAKEN BY THE ASSESSEE WHICH WAS INCONSISTENT TO RECORD AND ADMISSION MADE IN HIS WIFE ASSESSMENT PROCEEDINGS AND HELD THE SAME AS DEVOID OF MERIT AND UNSUSTAINABLE . 12. WE ALSO REALIZE THAT WHILE CONSIDERING THE PECULIAR F ACTS AND CIRCUMSTANCES TO THE EFFECT THAT THE ASSESSEE THOUGH FIL ED ITS REPLY BUT DID NOT APPEAR REGULARLY BEFORE THE LD. C IT(A), THEREFORE, ON THE BASIS OF REPLY THE LD. CIT(A) DECIDE D THE APPEAL OF THE ASSESSEE AS EX-PARTE, HENCE, IN THAT EVENTUALITY AND IN PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND FOR THE ENDS OF JUSTICE WITHOUT GOING INTO FURTHER CONTROVERSY AND M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 14 DECIDING THE CASE ON MERIT AND OTHER GROUNDS/ISSUES RAISE D BY THE ASSESSEE, THE CO-ORDINATE BENCH REMANDED THE CASE TO T HE FILE OF THE LD. CIT(A) FOR DECISION AFRESH AND IN THE ORDER IT WAS SPECIFICALLY MENTIONED BY THE CO-ORDINATE BENCH IN THE LAST PARA NO.6.2 OF THE ORDER THAT AS THE LD. CIT(A) HAS PASSED THE ORDER EX- PARTE THEREFORE, WE ARE NOT ADVERTING TO THE OTHER GROUNDS/ ISSUES RAISED IN THE APPEAL AND THE LD. CIT(A) SHALL DECID E THE APPEAL WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS MADE ABOVE . 13. FURTHER THE CLAIM OF THE ASSESSEE IS THAT THE CO-ORDINAT E BENCH DID NOT CONSIDER THE JUDGMENT OF SUPREME COURT I N THE CASE OF COMMISSIONER OF INCOME TAX, SALEM VS K. CHINNATHAMB AN (2007) 292 ITR 681 (SC) WHILE DECIDING THE APPEAL . THE ASSESSEE HAS ALSO FILED COPY OF THE JUDGMENT OF THE JURISDICTIO NAL HIGH COURT PASSED IN THE CASE OF R.M. EXPORT VS. CIT [2014] 2 64 CTR 206 (P&B) WHEREIN IT WAS HELD THAT NON-CONSIDERATION O F THE DECISION OF HONBLE SUPREME COURT OR THE JURISDICTIONAL HIGH COURT CAN BE SAID TO BE A MISTAKE APPARENT FROM THE RE CORD WHICH CAN BE RECTIFIED U/S 254(2). WE HAVE ALREADY MENT IONED THE FACTS AND GIVEN THOUGHTFUL CONSIDERATION TO ISSUE RAI SED BY THE ASSESSEE. IN OUR CONSIDERED VIEW, THE COURTS INCLUDING TRIBUNAL ARE BOUND TO FOLLOW THE JUDGMENTS OF THE HI GHER COURTS IN CASE THE IT DECIDES THE CASE ON MERITS. AS IN THIS CASE CONSIDERING THE PECULIAR FACTS, IMPUGNED ORDER HAS BEEN QUASHED AND CASE IS REMANDED BACK TO THE LD. CIT(A) FOR DECISION AFRESH WITH SPECIFIC DIRECTION THAT LD. CIT(A) SHALL DECIDE THE APPEAL WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS MADE ABOVE, THEREFORE AS PER OUR CONSIDERED VIEW, NO ERROR SEEMS TO BE APPARENT ON RECORD WHICH REQUIRES ANY RECTIFICATION AS SOU GHT FOR BY THE ASSESSEE . M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 15 13.1 EVEN WE HAVE FAILED TO UNDERSTAND AS TO WHAT PREJUDICE HAS BEEN CAUSED TO THE ASSESSEE AND WHAT ERROR IS APPARENT FROM THE RECORD WHICH REQUIRES RECTIFICATION BECAUSE AT T HE TIME OF PASSING ORDER UNDER RECTIFICATION, NO ORDER SURVIVES A GAINST THE ASSESSEE AND THE TRIBUNAL IN VIEW OF CONTRARY MATERI AL AVAILABLE ON RECORD AND WHICH IS NOT DENIED BY THE ASSESSE E BUT IN FACT ADMITTED BY THE ASSESSEE, HAS DEALT WITH INCONSISTE NT STAND ONLY BUT NOT OTHERWISE AND LEFT IT OPEN TO THE LD. CIT(A) TO DECIDE AFRESH WITHOUT BEING INFLUENCED BY ANY OBSERVAT ION MADE IN ITS ORDER. EVEN LIBERTY WAS GIVEN TO THE ASSEEEE TO AGITATE THE ORIGINAL GROUND OF APPEAL AS RAISED BEFORE THE LD. CI T(A). 13.2 THE APEX COURT IN THE CASE OF CIT VS. KARAM CHAND THA PAR & BR. P. LTD (SUPRA) CLEARLY HELD THAT IT IS EQUALLY WELL SETTLED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINI ZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPE ARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. I F THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INT O ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCL USIONS ARRIVED AT BY THE TRIBUNAL ARE- PERVERSE. THE HON'BLE DELHI HIGH COURT IN THE CASE OF RAS BIHARI BANSAL VS. CIT (SUPRA) ON THE SCOPE OF RECTIFICA TION U/S 254(2) OF THE ACT, HAS HELD IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIA BLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN A RGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT A N ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. TH E MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE C ONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTIO N 254(2) OF THE ACT. M.A.NO.30 /ASR/2019 (ARISIN G OUT OF ITA NO.645 /ASR/2018 ) RAGHU RAJ CHETHLEY, MOGA VS. ITO 16 FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFIC ATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTE R, WHICH IS BEYOND THE SCOPE OF THE SECTION. HENCE COMING TO INSTANT CASE ON THE AFORESAID ANALYZATIONS, THE INFERENCE CAN BE DRAWN THAT IN THIS CA SE, NO MISTAKE IS APPARENT FROM RECORD WHICH COULD WARRANT RECTIFICATION. 14. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.10.2019 . SD/- SD/- ( B.R.BASKARAN ) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 29.10.2019 /PK/ PS. COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THEN CIT(APPEALS) 5. SR DR, I.T.A.T. AMRITSAR 6. GUARD FILE TRUE COPY BY ORDER