Jatinder Kumar , MANSA V. The Income Tax Officer, Ward 1 (4), MANSA

MA 31/ASR/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4637 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 25-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER M. A. No. 31/Asr/2018 (Arising out of ITA No. 157/Asr/2016) Assessment Year: 2011-12 Jatinder Kumar, Prop. Sulekh Chand Sham Lal, Grain Market, Mansa [PAN: ABHPG 6210C] Vs. I.T.O., Ward 1(4) Mansa (Appellant) (Respondent) Appellant by : Sh. J. K. Gupta, Adv. Respondent by: Sh. S. M. Surendranath, Sr. DR Date of Hearing: 22.04.2022 Date of Pronouncement: 26.04.2022 ORDER Per Anikesh Banerjee, JM: This miscellaneous application is preferred by assessee for rectifying the order of the Income Tax Appellate Tribunal, Amritsar Bench, bearing ITA no 157/Asr/2018 order pronounced on dated 24/05/2018. The petition was filed on dated 27/11/2018. 2. The assessee filed application for rectification of number of pages of kanji register which was impounded doing survey. The part of application of assessee is reproduced hereunder: MA No. 31/Asr/2018 Jatinder Kumar v. ITO 2 To The Income tax Appellate Tribunal, Amritsar Bench, Amritsar. Sub: Application for rectification u/s 254(2) of the Income tax Act, 1961. Reg. Jatinder Kumar, Versus ITO, Ward 1(4), Prop. Sulekh Chand Sham Lai, Mansa. Grain Market, Mansa. (Appellant) (Respondent) ITA No. 157/ASR/2016 decided on 24.05.2018 PAN ABHPG6210C Asstt. Year 2011-12 Sir, The aforesaid ITA Number 157/ASR/2016 was decided on 24.05.2018 when the same was dismissed. It is submitted as under:- 1. That during the course of appellate proceedings before the Hon’ble Bench, the Hon’ble Bench summoned the assessment record of the assessee from the ITO, Ward 1(4), Mansa on 06.02.2018. 2. That it seems that the learned AO, Ward 1(4), Mansa sent the assessment record without the survey folder of the assessee prepared on the basis of survey conducted on the business premises of the assessee on 12.01.2011. The list of documents prepared by the department has final sanctity on the department. 3. That the appeal of the assessee was dismissed on 24.05.2018 and did not accept the contentions of the assessee that this kagzi register of 39 pages on the basis of which the learned AO has made assessment, does not belong to the assessee’s business with the remarks “as it appears there has occurred an error in recording the number of pages of the kagzi register i.e. at 39 instead of 19 in the order u/s 133A(3)(ia) of the Act. 4. That now the AO has supplied the certified copy of the kagzi register of 19 pages in September 2018 on the application of the assessee which is being attached with this rectification application for ready reference. MA No. 31/Asr/2018 Jatinder Kumar v. ITO 3 5. That it seems that the AO has not sent this kagzi register of 19 pages to the Hon’ble Bench knowingly to misguide the Hon’ble Bench in deciding the appeal. 6. That from the new facts, as is clear from above, it is clear that the appeal was decided and dismissed on the basis of kagzi register of 39 pages which were not taken into possession from the business premises of the assessee. Therefore, any reliance upon the other documents as planted/changed by the AO is misplaced, unfounded and illegal. Accordingly, the findings of the Hon’ble Bench recorded in the aforesaid orders Dated 24.05.2018 are perverse, against the settled principle of law and are based upon mis-appreciation, mis- reading of evidence and by relying on the inadmissible documents not belonging to the appellant. The change of the documents, despite given a certified copy of the originally taken Register of 19 pages, by the authorities, rendered the entire assessment proceedings vitiated and illegal and therefore, liable to be quashed as the same is based upon unproved and fabricated documents. It is, therefore, a mistake apparent from the record which may kindly be rectified and decide the appeal on the basis of kagzi register of 19 pages that was taken into possession from the business premises of the assessee on 12.01.2011.” 3. As per the statement of the assessee the learned assessing officer supplied the information that the kanji register of 19 pages accordingly the bench produce the details which is reproduced as under: “2. At the very outset, the ld. Authorized Representative (AR), the assessee’s counsel, would submit that while the ld. CIT(A) has passed a very reasonable order, allowing the assessee substantial relief, he has not accepted the assessee’s claim that the kagzi register impounded from the assessee’s business premises (on 12.09.2012) during survey proceedings u/s. 133A, does not belong to the business of the assessee. The same has been planted, even as submitted before the ld. CIT(A). In fact, that is the only book/register, among several, similarly impounded, entries in which did not agree with the assessee’s books of account, and on the basis of which therefore addition has been made in the instant case. As such, accepting the assessee’s this contention would remove the very basis of addition effected in assessment. In fact, the tribunal had for earlier years, accepting similar contention, allowed relief to the assessee. On being asked to state the basis on which the assessee claims that the kagzi register impounded from his MA No. 31/Asr/2018 Jatinder Kumar v. ITO 4 business premises did not belong to him and, on the contrary, is a plant of a fabricated register by the Revenue - a claim which the ld. CIT(A) states to be an allegation without any basis, he produced the copy of the order u/s. 133A(3)(ia) of the Act prepared at the conclusion of the survey (copy on record). The same, listing the several documents impounded during survey, contains the entry in respect of the kagzi register as serial no. 6, which reads as under: ‘6. One Register marked ‘Kagzi’ (written pages 1 to 19)’ The same clearly notes the said register to bear 19 pages, while the kagzi register supplied by the Revenue to the assessee subsequently, on being requested for, contains as many as 39 pages. The said register is placed as part of the paper-book. 4. We consider the submission of the assessing and available record. There is no mistake from appellant of the record. Considering the judgement of honourable Supreme Court in case of CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC), the power of Tribunal U/s 254(2) only to rectify the mistake apparent from the record. The petition for miscellaneous application of the assessee is rejected as there is no mistake on part of order of ITAT. There is no merit to adjudicate the same as there is no mistake apparent from the record. 5. Accordingly the miscellaneous application of the assessee is dismissed. Order pronounced in the open court on 26.04.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member Date: 26.04.2022 *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), MA No. 31/Asr/2018 Jatinder Kumar v. ITO 5 (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order