The DCIT, Trichur V. M/s. Chowallur Builders P. Ltd, Vadakancherry

MA 31/COCH/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4310 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-10-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 05-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: K J ABRAHAM
• Keywords: Rectification of order; Search and seizure; Loose papers; Document seized; Opportunity of being heard; Cost of acquisition; Corroborative evidences; Documents seized
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJAR I, AM & SHRI GEORGE GEORGE K, JM M A NO. 31 /COCH/201 8 : ASST.YEAR 2008 - 2009 (ARISING OUT OF ITA NO.196/COCH/2016) THE DY.COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE THRISSUR. VS. M/S.CHOWALLUR BUILDERS PRIVATE LIMITED, C/O.SMT.K.K.CELIN SNEHA NIWAS 8/385 PARLIKKAD P.O. VADAKANCHERY PAN : AACCC0453A. ( APPLICANT ) (RESPONDENT) APPLICANT BY : SMT.A.S.BINDHU, SR.DR RESPONDENT BY : SRI.K.J.ABRAHAM DATE OF HEARING : 26 .10.2018 DATE OF PRONOUNCEMENT : 31 .10.2018 O R D E R PER GEORGE GEORGE K., JM THIS MISCELLANEOUS APPLICATION AT THE INSTANCE OF THE REVENUE IS DIRECTED AGAINST ITATS ORDER DATED 19.12.2017 IN ITA NO.196/COCH/2016. THE RELEVANT ASSESSMENT YEAR IS 2008 - 2009. 2. BRIEF FACTS OF THE CASE READS AS FOLLOWS: - THE ASSESSEE IS A COMPANY. IT HAD SOLD 30.50 CENTS OF LAND AT CHEMBUKAVU IN THRISSUR TOWN TO M/S.ST.ANTONYS TIMBER DEPOT, VIDE DOCUMENT NO.3424/07 DATED 24.04.2007. THE VALUE DISCLOSED IN THE SALE DEED WAS RS.18,30,000. THERE WAS A SEARCH AND SEIZURE IN THE RESIDENTIAL PREMISES OF SHRI BABU JOHN, THE MANAGING PARTNER OF THE FIRM M/S.ST.ANTONYS M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 2 TIMBER DEPOT U/S 132 OF THE INCOME - TAX ACT. IN THE COURSE OF SEARCH, CERTAIN DOCUMENTS AND MATERIALS WERE SEIZED. ACCORDING TO THE ASSESSING OFFICER, THE SEIZED DOCUMENTS (SJ - I AND SJ - III) POINT OUT THAT THE PROPERTY SOLD BY THE ASSESSEE TO M/S.ST.ANTONYS TIMBER DEPOT WAS FOR A TOTAL CONSIDERATION OF RS.99,90,000 INSTEAD OF RS.18. 30 LAKH DISCLOSED IN THE SALE DEED. THE A.O. SENT PROPOSAL FOR CALCULATING LONG TERM CAPITAL GAINS BY ADOPTING THE SALE CONSIDERATION AT RS.99,90,000 AND ALLOWING THE BENEFIT OF INDEXED COST OF ACQUISITION AND INDEXED COST OF IMPROVEMENTS IF ANY. THE ASSES SEES DIRECTOR LATE SHRI JACOB JOHN DENIED HAVING RECEIVED ANY CONSIDERATION MORE THAN RS.18.30 LAKH DISCLOSED IN THE SALE DEED. ACCORDING TO THE ASSESSING OFFICER, THE SEIZED DOCUMENTS, VIZ., SJ - III AND THE STATEMENT OF SHRI BABU JOHN RECORDED DURING THE COURSE OF SEARCH U/S 132(4) CLEARLY SHOW THE SAID PROPERTY HAS BEEN PURCHASED BY M/S.ST.ANTONYS TIMBER DEPOT FROM THE ASSESSEE FOR A TOTAL CONSIDERATION OF RS.99.90 LAKH, AND THEREFORE, LONG TERM CAPITAL GAINS WAS CALCULATED BY TAKING THE SALE VALUE AT RS .99.90 LAKH INSTEAD OF 18.30 LAKH DISCLOSED IN THE SALE DEED. 3. ON FURTHER APPEAL, THE CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESSEE PREFERRED APPEAL TO THE ITAT . T HE ITAT DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THE ITAT HELD THAT THE DOCUMENTED VALUE AT RS.18.30 LAKH IS TO BE ADOPTED FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAINS INSTEAD OF RS.99,90,000 TAKEN BY THE ASSESSING OFFICER. M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 3 4. AGGRIEVED BY THE ORDER OF THE ITAT, THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION. THE PRIMARY REASONS STATED IN THE MA FOR THE APPARENT MISTAKE IN THE ORDER OF THE ITAT IS THAT THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER, DID NOT CONSIDER THE ITATS ORDER IN THE CASE OF THE PURCHASER VIZ., ST. ANTONYS TIMBER DEPOT , WHEREIN THE TRIBUNAL CONFIRMED THE PURCHASE PRICE OF THE IMPUGNED PROPERTY AT RS.99.90 LAKH INSTEAD OF 18.30 LAKH IS DISCLOSED IN THE SALE DEED DATED 24.04.2007. 4.1 THE LEARNE D AR, ON THE OTHER HAND, HAS FILED A BRIEF WRITTEN SUBMISSION. THE SAME IS REPRODUCED BELOW FOR READY REFERENCE: - 1. THE APPLICATION FILED BY THE DEPARTMENT UNDER SECTION 254(2) IS NOT SUSTAINABLE IN LAW OR ON FACTS. 2. THE FACTUAL FINDING OF THE TR IBUNAL IN THIS CASE IS FOUND IN PARAGRAPH 6 AND 6.3 OF THE ORDER AND READS THUS: ' THE ASSESSING OFFICER IN HIS ORDER (PARA 10) HAD STATED THAT SJ - ILL IS A SALE AGREEMENT FOR THE SALE OF PROPERTY ENTERED INTO BY THE ASSESSEE AND M/ S. ST. ANTONY'S TIMBER D EPOT AND THE SAME HAS BEEN SIGNED FOR BOTH THE PARTIES. BUT SJ - III WHICH IS ENCLOSED IN THE PAPER BOOK (PAGE 67 AND 68) SHOWS IT IS ONLY LOOSE SHEETS OF PAPERS IN WHICH SOME TRANSACTION OF THE PURCHASER ARE RECORDED AND THAT TOO WITHOUT ANY SIGNATURE. THER EFORE, THE IMAGINARY SALE AGREEMENT RELIED BY THE ASSESSING OFFICER WHILE ADOPTING THE SALE CONSIDERATION AT RS.99.90 LAKH IS NOT CORRECT. THE CIT (A) HAS OMITTED TO CONSIDER THIS CRUCIAL ASPECT OF THE CASE. A.O. RECODED FROM SHRI. BABU JOHN, WHO IS THE M ANAGING PARTNER OF M/ S. ST. ANTONY'S TIMBER DEPOT DOES NOT STATE IN EXACT TERMS THAT HE HAD PURCHASED THE PROPERLY FROM THE ASSESSEE FOR A TOTAL CONSIDERATION OF RS. 99.90 L AKH. IN THE STATEMENT RECORDED THERE IS NO MENTION ABOUT THE DETAILS OF PROPERTY, NAMELY SURVEY NUMBER, NATURE OF M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 4 PROPERTY AND FROM WHOM THE PROPERTY HAS BEEN PURCHASED. THE COPY OF THE ENGLISH TRANSLATION OF THE STATEMENT RECORDED UNDER SECTION 132(4) FRO M SHRI . BABU JOHN, WHO IS THE MANAGING PARTN ER OF M/ S. ST. ANTONY'S TIMBER DEPOT, IS PLACED ON RECORD. THE QUESTION POSED CONCERNING SJ - I IS QUESTION NO 11 L AND QUESTION POSED PERTAINING SJ - III IS QUESTION NO.15 AND 17. IN ANSWER TO QUESTION NO.15 AND 17, T HERE IS NO MENTION OF ASSESSEE'S NAME ANYWHERE. EVEN THE EXTENT OF THE LAND DOES NOT TALLY WITH THE DESCRIPTION IN THE SALE DEED. THE BURDEN OF PROVING THE ACTUAL CONSIDERATION IS NOT THE DOCUMENTED VALUE, BUT IT IS SOMETHING ABOVE THE DOCUMENTED VALUE IS ON THE ASSESSING OFFICER. THE ASSESSING OFFICER OUGHT TO HAVE CONDUCTED INDEPENDENT INQUIRY AS REGARDS VALUE OF THE PROPERLY BY REFERRING SAME TO THE DVO. IN THE INSTANT CASE, AS MENTIONED EARLIER, HEAVY RELIANCE HAS BEEN PLACED BY THE ASSESSING OFFICER ON THE SO CALLED AGREEMENT FOR SALE, VIZ; SJ - III. THE SEIZED MATERIAL NAMELY SJ - III IS NOT AN AGREEMENT FOR SALE, BUT CERTAIN NOTHING OF THE PURCHASER WITHOUT ANY SIGNATURE AND DOES NOT MENTION ANYWHERE THE NAME OF THE ASSESSEE - COMPANY OR ITS DIRECTORS. EV EN THE NOTING OF PURCHASER ABOUT PROPERTY DETAILS HE PURCHASED DOES NOT TALLY WITH THE DESCRIPTION OF THE PROPERLY SOLD BY THE ASSESSEE. NOR THE STATEMENT UNDER SECTION 132(4) OF THE ACT RECORDED FROM THE PURCHASER INDICATE THAT ASSESSEE WAS PAID ABOVE SUM OF RS.99.90 LAKH . 6.3 THE ASSESSING OFFICER HAD FRAMED THE ASSESSMENT MAINLY STATING THAT THE AGREEMENT FOR SALE WAS SEIZED AND ALSO PLACING RELIANCE ON THE STATEMENT RECORDED UNDER SECTION 132(4) FROM SHRI BAB U JOHN. AS MENTIONED EARLIER, THERE IS NO A GREEMENT OF SALE THAT WAS SEIZED NOR WAS THE STATEMENT OF SHRI. BABU JOHN INDICATING THAT THE ASSESSEE WAS PAID MORE THAN THE DECLARED VALUE IN THE SALE DEED. THEREFORE, WE HAVE TO CONCLUDE THE ADOPTION OF SALE CONSIDERATION AT RS.99.90 LAKH IS NOT SUPPOR TED BY CORROBORATIVE EVIDENCES / MATERIALS. HENCE, WE DIRECT THE ASSESSING OFFICER TO ADOPT THE SALE CONSIDERATION AS DISCLOSE D IN DOCUMENT NO.3424/07 DATED 24.04.2008 VIZ., M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 5 RS.18.30 LAKH INSTEAD OF RS.99.90 LAKH FOR THE PURPOSE OF CALCULATING LONG TERM C APITAL GAINS. IT IS ORDERED ACCORDINGLY. ' 3. THIS TRIBUNAL HAS RIGHTLY FOUND THAT IN SJ - I AND IN SJ - III THE REFERENCE IS TO 27 CENTS OF LAND. ADMITTEDLY THIS RESPONDENT SOLD 30.50 CENTS. HENCE IT CANNOT BE IN ANY WAY CORRELATE TO THE ENTRIES MADE IN SJ - L AND IN SJ - III. IN FACT THERE AN ERROR APPARENT ON THE FACE OF THE RECORD IN L.T.A. NO.216/COCH/2012 WHEREIN THIS TRIBUNAL HA S ACCEPTED THE DEPARTMENT CONTENTION THAT 27 CENTS OF LAND SHOWN IN SJ - L AND IN SJ - I II CORRELATE TO DOCUMENT NO.3424/07 DATED 24.04.2008 WHICH FOR 30.50 CENTS OF LAND. 4 . HENCE IT MUST NECESSARILY FOLLOW THAT THERE IS NO ERROR APPARENT ON THE FACE OF THE RECORD IN THIS CASE AND NECESSARILY THE APPLICATION MUST BE DISMISSED. 5. THE SUBMISSIONS AS REGARDS THE LEGAL SITUATION ARE AS FOLLOWS: 6. IT IS TRITE LAW THAT THE POWER UNDER SECTION 254(2) IS NOT A POWER TO REVIEW THE EARLIER ORDER OF THE TRIBUNAL AND IS ONLY TO CORRECT ANY ERROR APPARENT ON THE FACE OF THE RECORD.. IN THIS CASE THERE IS NO ERROR ON THE FACE OF THE RECORD.. THE ATTEMPT OF THE DEPARTMENT IS TO REVIE W THE ORDER OF THE TRIBUNAL IN THIS CASE USING THE ORDER OF THIS TRIBUNAL IN I TA NO. 216/COCH / 2012. 7. THE POW ER CONFERRED UNDER SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHEARING WHICH WOULD HAVE THE EFFECT OF REWRITING AN ORDER AFFECTING THE MERITS OF THE CASE. ELSE THERE WOULD BE NO DISTINCTION BETWEEN A POWER TO REVIEW AND A POWER TO RECTIFY A MISTAKE. WHAT IS NOT PERMISSIBLE UNDER THE STATUTE CANNOT BE INDIRECTLY DONE BY RECOURSE TO SECTION 254(2 ) OF THE ACT. THE STATUTE DELIBERATELY CONFERS THE POWER TO RECTIFY THE ORDER AND DOES NOT AUTHORIZE TO REVIEW THE ORDER. SEE CIT V, VICHTRA CONSTRUCTION (P) LTD. (2004) 269 ITR 371. M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 6 8. THIS PROPOSITION ALSO FINDS SUPPORT FROM PROVISO TO RULE 34A(3) OF IT AT RULES, 1963 WHICH PROHIBITS EVEN POSTING OF MISCELLANEOUS APPLICATION FOR HEARING IF IT PRIMA FACIE APPEARS TO BE A PETITION F OR REVIEW. THIS PROVISO IS AS UNDER: 'PROVIDED IT SHALL NOT BE NECESSARY TO POST MISCELLANEOUS APPLICATION FOR HEARING IF IT PRIMA FACIE APPEARS TO BE PETITION FOR REVIEW. ' 9. IT HAS TO BE POINTED OUT THAT A POWER WHICH HAS NOT BEEN SPECIFICALLY GRANTED UNDER A STATUTE CANNOT BE IMPLIED. REFERENCE IN THIS REGARD MAY ALSO BE MADE TO SECTION 114 OF CIVIL PROCEDURE CODE WHICH SPECIFICALLY EMPOWERS THE CIVIL COURTS TO REVIEW THEIR O RDERS. THIS PROVISION IS AS UNDER: '114. REVIEW - SUBJECT AS AFORESAID, ANY PERSON CONSIDERING HIMSELF AGGRIEVED - (A) BY A DECREE OR ORDER FROM WHICH AN APPEAL IS ALLOWED BY THIS CODE, BUT FROM WHICH NO APPEAL HAS BEEN PREFERRED, (B) BY A DECREE OR ORDER FROM WHICH NO APPEAL IS ALLOWED BY THIS CODE, OR; (C) BY A DECISION ON A REFERENCE FROM A COURT OF SMALL CAUSES, MAY APPLY FOR A REVIEW OF JUDGMENT TO THE COURT WHICH PASSED THE DECREE OR MADE THE ORDER, AND THE COURT MAY MAKE SUCH ORDER THEREON AS IT THINKS FIT. 10. THE SAME POWER HAS NOT BEEN GRANTED TO IT AT UNDER THE INCOME TAX ACT. LET US EXAMINE THE LEGAL POSITION ALSO. SECTION 254(2) OF THE INCOME TAX ACT READ AS FOL LOWS: 254(2) : THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 7 VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING! OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE , SHALL NOT BE MADE UNDER THIS SUB - SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSE E OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 11. UNDER THE INCOME TAX ACT NO POWER IS PROVIDED TO THE TRIBUNAL TO REVIEW ITS ORDER. THE APEX COURT IN THE CASE OF KAPRA MAZDOOR EKTA UNION V. BIRLA COTTON SPINNING AND WEAVING MILLS LTD. AND ORS, REPORTED IN 2005 AIR SCW , 1561 HELD THAT THE TRIBUNAL CANNOT EXERCISE POWER OF REVIEW UNLESS SPECIFICALLY PROVIDED. 12. THE TRIBUNAL IS A CREATION OF STATUTE AND IT CAN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. THE ONLY POWER CONFERRED ON THE TRIBUNAL UNDER S ECTION 254(2) OF THE ACT IS TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. THE JURISDICTION TO REVIEW OR MODIFY THE ORDERS PASSED CANNOT BE INFERRED ON THE BASIS OF A SUPPOSED INHERENT RIGHT. THE MISTAKE, WHICH CAN BE RECTIFIED MUST BE APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH F OR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. IN THESE CIRCUMSTANCES THERE IS ABSOLUTELY IN THE MERIT IN THE APPLICATION THUS FILED AND HENCE IT IS ONLY TO BE DISMISSED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECOR D. THE A.O. HAD TAKEN THE VALUE OF THE PROPERTY SOLD BY THE ASSESSEE AT RS.99.90 LAKH INSTEAD OF 18.30 LAKH DISCLOSED IN THE SALE DEED FOR TWO REASONS VIZ. , (I) M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 8 SEIZED MATERIAL SJ - I AND SJ - III SEIZED FROM THE PREMISES OF THE PURCHASER (SJ - III ACCORDING T O THE A.O. IS A SALE AGREEMENT DEED ) , WHICH DISCLOSED TOTAL CONSIDERATION OF RS.99.90 LAKH; (II) THE STATEMENT RECORDED FROM THE MANAGING PARTNER OF THE FIRM, WHO HAD PURCHASED THE PROPERTY, ADMITTED HAVING PAID RS.99.90 LAKH. THE RELEVANT PORTION OF THE A SSESSMENT ORDER IN THIS REGARD READS AS FOLLOWS: - 10. SALE CONSIDERATION OF THE LAND AS PER THE DOCUMENT NO.SJ - III, WHICH IS AGREEMENT FOR THE SALE OF THE PROPERTY ENTERED INTO BY THE ASSESSEE COMPANY AND SHRI BABU JOHN ON BEHALF OF M/S.ST.ANTONYS TIMBER DEPOT CHEVOOR, AND SEIZED FROM THE RESIDENCE OF SRI.BA BU JOHN, MANAGING PARTNER OF M/S.ST.ANTONYS TIMBER DEPOT CHEVOOR, IS @ RS.3,70,000/ - PER CENT. SHRI BABU JOHN WHO PURCHASED THE PROPERTY FOR THE FIRM M/S.ST.ANTONYS TIMBER DEPOT CHEVOOR, ADMITTED THE FACT THAT THE TOTAL PAYMENT MADE TO THE ASSESSEE COMPA NY WAS RS.99,90,000/ - FOR W27 CENTS OF LAND. THE ABOVE SALE AGREEMENT WAS SIGNED BY SHRI C.C.JACOB, MANAGING DIRECTOR OF THE ASSESSEE COMPANY (SELLER) AND SHRI BABU JOHN, MANAGING PARTNER OF M/S.ST.ANTONYS TIMBER DEPOT CHEVOOR (PURCHASER) AND THIS BEING T HE FACTS OF THE CASE, AS EVIDENCED FROM THE DOCUMENTS SEIZED, THE AVERMENTS OF THE ASSESSEE COMPANYS MANAGING DIRECTOR AND DIRECTOR THAT THEY HAD NOT RECEIVED ANY AMOUNT OTHER THAN WHAT WAS SHOWN IN THE SALE DEED I.E. RS.18,30,000/ - CANNOT BE ACCEPTED AS GENUINE. CONSIDERING THE PROXIMITY AND MARKET VALUE OF THE LOCATION AND THE DEPOSITION OF THE PURCHASER, THE SALE CONSIDERATION OF THE PROPERTY AS FOUND IN THE SEIZED MATERIAL SJ - 1 & SJ - III, IS REASONABLE AND SO THE SALE VALUE OF THE PROPERTY IS FIXED AT R S.99,90,000/ - . 6. THE TRIBUNAL HELD THE FINDING OF THE A.O. IS INCORRECT. THE TRIBUNAL STATED THAT THE SEIZED MATERIAL MARKED AS SJ - I M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 9 AND SJ - III DOES NOT INDICATE PURCHASE PRICE AT RS.99.90 LAKH. IT WAS FURTHER STATED BY THE TRIBUNAL THAT SJ - I AND SJ - III ARE CERTAIN NOTING OF THE PURCHASER AND NOT AGREEMENT FOR SALE OF THE IMPUGNED PROPERTY AS ALLEGED IN PARA 10 OF THE IMPUGNED ASSESSMENT ORDER. THE TRIBUNAL ALSO FOUND THAT THE STATEMENT RECORDED U/S 132(4) FROM SHRI BABU JOHN, MANAGING PARTNER OF THE FIR M M/S.ST.ANTONYS TIMBER DEPOT (PURCHASER OF THE PROPERTY) DOES NOT MENTION ANYWHERE THAT THE ASSESSEES NAME OR ITS DIRECTORS NAME. THE RELEVANT FINDING OF THE TRIBUNAL READS AS FOLLOWS: - 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSING OFFICER HAD ADOPTED THE SALE CONSIDERATION AT RS.99.90 LAKH ON THE BASIS OF THE STATEMENT RECORDED U/S 132(4) OF THE ACT OF THE PURCHASER AND THE SEIZED MATERIAL VIZ., SJ - I AND SJ - III. SJ - I AND SJ - III ARE ENCLOSED AT PAGE 66, 67 AN D 68 OF THE PAPER BOOK FILED BY THE ASSESSEE. THE ASSESSEE HAD APPLIED FOR COPIES OF SJ - I AND SJ - III AND THE SAME WAS PROVIDED TO THE ASSESSEE BY THE DEPARTMENT. THE DOCUMENT ISSUED TO THE ASSESSEE VIZ., SJ - I IS PROPERTY STATEMENT OF THE PURCHASER AND SJ - I II IS CERTAIN NOTING OF THE PURCHASER. THE ASSESSING OFFICER IN HIS ORDER (PARA 10) HAD STATED THAT SJ - III IS A SALE AGREEMENT FOR THE SALE OF PROPERTY ENTERED INTO BY THE ASSESSEE AND M/S.ST.ANTONYS TIMBER DEPOT AND THE SAME HAS BEEN SIGNED FOR BOTH THE PARTIES. BUT SJ - III WHICH IS ENCLOSED IN THE PAPER BOOK (PAGE 67 AND 68) SHOWS IT IS ONLY LOOSE SHEETS OF PAPERS IN WHICH SOME TRANSACTION OF THE PURCHASER ARE RECORDED AND THAT TOO WITHOUT ANY SIGNATURE. THEREFORE, THE IMAGINARY SALE AGREEMENT RELIED BY T HE ASSESSING OFFICER WHILE ADOPTING THE SALE CONSIDERATION AT RS.99.90 LAKH IS NOT CORRECT. THE CIT(A) HAS OMITTED TO CONSIDER THIS CRUCIAL ASPECT OF THE CASE. FURTHER THE STATEMENT U/S.132(4) OF THE ACT RELIED ON BY THE A.O. RECORDED FROM SHRI BABU JOHN, WHO IS THE MANAGING PARTNER OF M/S.ST.ANTONYS TIMBER DEPOT DOES NOT STATE IN EXACT TERMS THAT HE HAD PURCHASED THE PROPERTY FROM THE ASSESSEE FOR A TOTAL CONSIDERATION OF RS.99.90 LAKH. IN THE STATEMENT RECORDED THERE IS NO MENTION ABOUT THE DETAILS OF PR OPERTY, NAMELY SURVEY NUMBER, NATURE OF PROPERTY AND FROM WHOM THE PROPERTY HAS BEEN PURCHASED. THE COPY OF THE ENGLISH TRANSLATION OF THE STATEMENT RECORDED U/S 132(4) FROM SHRI BABU JOHN, WHO IS THE MANAGING PARTNER OF M/S.ST.ANTONYS M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 10 TIMBER DEPOT, IS PL ACED ON RECORD. THE QUESTION POSED CONCERNING SJ - I IS QUESTION NO.11 AND QUESTION POSED PERTAINING SJ - III IS QUESTION NO.15 AND 17. IN ANSWER TO QUESTION NO.15 AND 17, THERE IS NO MENTION OF ASSESSEES NAME ANYWHERE. EVEN THE EXTENT OF THE LAND DOES NOT TA LLY WITH THE DESCRIPTION IN THE SALE DEED. THE BURDEN OF PROVING THE ACTUAL CONSIDERATION IS NOT THE DOCUMENTED VALUE, BUT IT IS SOMETHING ABOVE THE DOCUMENTED VALUE IS ON THE ASSESSING OFFICER. THE ASSESSING OFFICER OUGHT TO HAVE CONDUCTED INDEPENDENT INQ UIRY AS REGARDS VALUE OF THE PROPERTY BY REFERRING SAME TO THE DVO. IN THE INSTANT CASE, AS MENTIONED EARLIER, HEAVY RELIANCE HAS BEEN PLACED BY THE ASSESSING OFFICER ON THE SO CALLED AGREEMENT FOR SALE, VIZ., SJ - III. THE SEIZED MATERIAL NAMELY SJ - III IS N OT AN AGREEMENT FOR SALE, BUT CERTAIN NOTING OF THE PURCHASER WITHOUT ANY SIGNATURE AND DOES NOT MENTION ANYWHERE THE NAME OF THE ASSESSEE - COMPANY OR ITS DIRECTORS. EVEN NOTING OF PURCHASER ABOUT PROPERTY DETAILS HE PURCHASED DOES NOT TALLY WITH THE DESCRI PTION OF THE PROPERTY SOLD BY THE ASSESSEE. NOR THE STATEMENT U/S 132(4) OF THE ACT RECORDED FROM THE PURCHASER INDICATE THAT ASSESSEE WAS PAID ABOVE SUM OF RS.99.90 LAKH. 6.1 IN THE CASE OF M.M.FINANCERS (P) LTD. V. DCIT [(2007) 107 TTJ (CHENNAI) 200], THE TRIBUNAL HELD THAT NO ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF STATEMENT MADE BY A THIRD PARTY AND THE UNSIGNED AGREEMENT AND LOOSE PAPERS SEIZED FROM THE RESIDENCE, IN THE ABSENCE OF ANY CORROBORATIVE MATERIAL TO SHOW THE PAYMENT OF ANY UNDISCLOSED CONSIDERATION BY THE ASSESSEE TOWARDS THE PURCHASE OF LAND. 6.2 IN THE CASE OF CIT V. P.V.KALYANASUNDARAM [(2006) 282 ITR 259 (MAD.)], THE HONBLE MA DRAS HIGH COURT HAD OBSERVED AS UNDER: - THE TRIBUNAL HAD GIVEN FACTUAL FINDING AND HELD AS FOLLOWS: `WE FIND THAT IT IS THE UNIFORM VIEW OF THE COURTS AND ALSO HELD BY THE APEX COURT IN K.P.VARGHESE VS. ITO (1981) 24 CTR (SC) 358 : (1981) 131 ITR 597 (SC) THE BURDEN OF PROVING ACTUAL CONSIDERATION IN SUCH TRANSACTION IS THAT OF REVENUE. CONSIDERING THE ENTIRE GAMUT OF THE CASE, WE FIND THAT REVENUE HAS FAILED TO DISCHARGE ITS DUTIES AND AS HELD BY THE LD.CIT(A) INSTEAD MADE UP A CASE ON SURMISES AND CO NJECTURES WHICH CANNOT BE ALLOWED. UNDER THE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AND WE UPHOLD THE APPELLATE ORDER IN THIS REGARD. M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 11 WE ALSO FOUND THAT THE ASSESSING OFFICER DID NOT CONDUCT ANY INDEPENDENT ENQUIRY REL ATING TO THE VALUE OF THE PROPERTY PURCHASED. HE MERELY RELIED ON THE STATEMENT GIVEN BY THE SELLER. IF HE WOULD HAVE TAKEN INDEPENDENT ENQUIRY BY REFERRING THE MATTER WITH THE VALUATION OFFICER, THE CONTROVERSY COULD HAVE BEEN AVOIDED. FAILING TO REFER TH E MATTER WAS A FATAL ONE. 6.3 THE ASSESSING OFFICER HAD FRAMED THE ASSESSMENT MAINLY STATING THAT THE AGREEMENT FOR SALE WAS SEIZED AND ALSO PLACING RELIANCE ON THE STATEMENT RECORDED U/S 132(4) FROM SHRI BABU JOHN. AS MENTIONED EARLIER, THERE IS NO AG REEMENT OF SALE THAT WAS SIZED NOR WAS THE STATEMENT OF SHRI BABU JOHN INDICATING THAT THE ASSESSEE WAS PAID MORE THAN THE DECLARED VALUE IN SALE DEED. THEREFORE, WE HAVE TO CONCLUDE THE ADOPTION OF SALE CONSIDERATION AT RS.99.90 LAKH IS NOT SUPPORTED BY A NY CORROBORATIVE EVIDENCES / MATERIALS. HENCE, WE DIRECT THE ASSESSING OFFICER TO ADOPT THE SALE CONSIDERATION AS DISCLOSED IN DOCUMENT NO.3424/07 DATED 24.04.2008 VIZ., RS.18.30 LAKH INSTEAD OF RS.99.90 LAKH FOR THE PURPOSE OF CALCULATING LONG TERM CAPITA L GAINS. IT IS ORDERED ACCORDINGLY. 7. NOW THE DEPARTMENT STATES IN THE MA THAT IN T HE HANDS OF THE PURCHASER, VALUE OF THE IMPUGNED PROPERTY ADOPTED BY THE DEPARTMENT AT RS.99.90 LAKH WAS UPHELD BY THE ITAT IN ITS ORDER DATED 05.04.2013 IN ITA NO.21 6/CO CH/201 2 . AT THIS POINT, WE WOULD LIKE TO CLARIFY THAT ONE OF US WA S PARTY TO THE ORDER OF THE TRIBUNAL IN ITA NO. 192 /COCH/201 7 ORDER DATED 19.12.2007 . DURING THE HEARING OF ITA NO.196/COCH/2016 IT WAS SPECIFICALLY ASKED WHAT WAS THE FATE OF THE ASSESSMEN T IF ANY IN THE HANDS OF THE PURCHASER. TO THIS QUESTION POSED BY THE BENCH, THE LEARNED DEPARTMENTAL REPRESENTATIVE NOR THE AR WAS ABLE TO THROW ANY LIGHT. NOW COMING TO THE ORDER OF THE ITAT DATED 05.04.2013 IN ITA NO.2 1 6/COCH/201 2 (ORDER DATED 05.04.201 3) , WE FIND THAT THE TRIBUNAL HAD TAKEN THE PURCHASE COST AT RS.99.90 LAKH ON ADMISSION MADE BY THE MANAGING PARTNER OF THE ASSESSEE IN THAT CASE THAT HE HAD M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 12 PAID MORE AMOUNT THAN THE DOCUMENTED VALUE. IT IS A CLEAR CASE OF ADMISSION BY THE PURCHASER, WHICH WAS SUBSEQUENTLY RETRACTED LONG AFTER (STATEMENT RETRACTED AFTER 26 MONTHS) DENYING ANY ADDITIONAL INVESTMENTS OTHER THAN THE DOCUMENTED VALUE. FOR THIS REASON THE TRIBUNAL HAD CONFIRMED THE INVESTMENT OF RS.99.90 LAKH IN THE HANDS OF M/S.ST.ANTONYS TIMBER DEPOT. IN THE INSTANT CASE, THERE IS NO ADMISSION BY THE SELLER AT ANY POINT OF TIME THAT IT HAD RECEIVED MORE AMOUNT THAN THE DOCUMENTED VALUE. THE TRIBUNAL IN ITA NO.216/COCH/2012 (ORDER DATED 05.04.2013) NOWHERE HAS MENTIONED THAT THE ASSESSEE I N THAT CASE HAD PURCHASED THE PROPERTY OF M/S.CHOWALLUR BUILDERS (P) LTD. (I.E. THE ASSESSEE IN THE PRESENT CASE). THE TRIBUNAL IN ITS ORDER DATED 05.04.2013 IN ITA NO.216/COCH/2012 HAD NOT MENTIONED THE DETAILS OF THE PROPERTY SUCH AS THE SURVEY NUMBER, N ATURE OF THE PROPERTY, LOCATION OF THE PROPERTY AND FROM WHOM THE PROPERTY WAS PURCHASED ETC. THEREFORE, IT IS NOT CLEAR THAT THE TRIBUNAL IN ITA NO.216/COCH/2012 WAS CONSIDERING THE SAME VERY PROPERTY SOLD BY THE ASSESSEE IN THE INSTANT CASE . MOREOVER , TH E TRIBUNAL IN ITA NO.216/COCH/2012 WAS CONSIDERING A CASE OF PURCHASE OF 27 CENTS OF LAND, WHEREAS IN THIS CASE THE LAND SOLD BY ASSESSEE IS 30.50 CENTS OF LAND. THEREFORE, THE EXTENT OF PROPERTY CONSIDERED BY THE TRIBUNAL IN ITA NO.216/COCH/2012 DIFFER WI TH THE EXT ENT PROPERTY SOLD IN THIS CASE. 8. IN THIS MISCELLANEOUS APPLICATION, WE ARE CONSIDERING WHETHER THERE IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL DATED 19.12.2017. HAD THE DEPARTMENT PRODUCED M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 13 THE ITATS ORDER IN THE CASE OF THE PURCHASER AT THE TIME OF HEARING IN ITA NO.196/COCH/2016 AND THE TRIBUNAL HAS NOT CONSIDERED THE SAME, UNDOUBTEDLY THERE WOULD HAVE BEEN AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 19.12.2017, WARRANTING OUR INTERFERENCE U/S 254(2) OF THE I.T.ACT. THE TR IBUNAL, U/S 254(2) OF THE I.T.ACT, DOES NOT HAVE THE POWER TO REVIEW ITS OWN ORDER. IT HAS ONLY POWER TO RECTIFY THE MISTAKE APPARENT ON RECORD. A POWER OF REVIEW HAS TO BE STATUTORILY CONFERRED. IT CANNOT BE INFERRED. AS THIS POWER HAS NOT BEEN CONFERRED ON THE TRIBUNAL, UNDER THE ACT, IT DOES NOT HAVE THE POWER OF REVIEW. AS MENTIONED EARLIER, THE POWER THAT HAS BEEN GIVEN UNDER SECTION 254 IS RIGHT OF RECTIFICATION OF MISTAKES. AS A POWER TO RECTIFY A MISTAKE DOES NOT INCLUDE A POWER TO REVIEW, ALL THAT THE TRIBUNAL CAN DO IS TO AMEND ITS ORDER WITH A VIEW TO RECTIFY ANY ERROR APPARENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF - EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REWRITE IT. UNDER THE GARB OF RECTIFICATION, THE TRIBUNAL CANNOT EXERCISE THE POWER OF RECALL AND REVIEW ITS EARLIER ORDER. IN THE INSTANT CASE, THE MISCELLANEOUS PETITION OF THE DEPARTMENT IS PRIMA FACIE SEEKING TO REVIEW THE ORDER OF THE TRIBUNAL DATED 19.12.2017, WHICH UNFORTUNATELY THE TRIBUNAL DOES NOT HAVE THE POWER UNDER THE STATUTE. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. VICH I TRA CONSTRUCTION (P.) LTD. [(200 4) 269 ITR 371 (DEL.)] HAD HELD THE POWER U/S 254(2) IS TO CORRECT ANY APPARENT MISTAKE AND NOT TO RECALL ITS ENTIRE ORDER AND REVIEW THE SAME. IN VIEW OF THE AFORESAID REASONING, WE FIND NO MERIT IN THE M A NO. 31 / COCH /201 8 . M/S.CHOWALLUR BUILDERS (P) LTD . 14 M.A. FILED BY THE DEPARTMENT AND WE DISMISS THE SAM E. IT IS ORDERED ACCORDINGLY. 9 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 31 ST DAY OF OCTOBER, 2018 . SD/ - SD/ - ( CHANDRA POOJARI ) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN ; DATED : 31 ST OCTOBER, 2018 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT KOCHI . 4. THE CIT (A) - IV , KOCHI . 5. DR, ITAT, COCHIN 6 . GUARD FILE.