Ramesh Chandra Rath, Bhubaneswar V. DCIT,Circle-3(1), Bhubaneswar

MA 31/CTK/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5672 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148; 254(2)

Judgement Text

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ, कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI MANISH BORAD, AM Miscellaneous Application No.31/CTK/2021 (Ar is in g out of IT A No.366/CT K/2019) (नििाारण वषा / Assessment Year :2007-2008) Ramesh Chandra Rath, Plot No.1257/2670, Maa Santoshi Nagar, Bhubaneswar-751010 Vs DCIT, Circle-3(1), Bhubaneswar PAN No. : ACCPR 7332 Q (अऩीलाथी /Appellant) .. (प्रत्यथी / Respondent) ननधाारिती की ओर से /Assessee by : Shri B.Panda Sr.Adv & Shri B.R.Panda, Advocate िाजस्व की ओर से /Revenue by : Shri S.C.Mohanty, Sr.DR स ु नवाई की तािीख / Date of Hearing : 29/10/2021 घोषणा की तािीख/Date of Pronouncement : 23/12/2021 आदेश / O R D E R Per Bench: This Miscellaneous application u/s 254(2) of the Act is filed by the assessee against the order of this Tribunal dated 18.01.2021. Ld. counsel for the assessee vehemently argued referring to the following issues raised in this Misc. Application: That the Appellant in filing of this Petition u/s. 254(2) of the I.T.Act vide dt.03.05.2O21 needs amendment, modification, rectification as well as clarification in the matter seeking application of law and the fact as were made in similar other cases having same and common type of transactions with M/s,Hiranandani Group of Companies in providing flats etc No.3304A & 3304B, 33'd Floor, Torino, Hiranandani Garden, Mumbai and the amount shown on money and cash etc having been clarified and furnished before the ld.Deputy Commissioner of Income Tax Circle-3(1), Bhubaneswar in which the Appellant itself himself vide dated 20.02.2015 had approved and the same have been furnished which may be treated as part and parcel of the submission of the Appellant before this Hon'ble Forum in respect of the application filled u/s.254(2) of the I.T.Act. MA No.31/CTK/2021 2 2) That the declaration made by the Appellant is to be carried on in para-2 and para-6 of the petition filed u/s.254(2) of the I.T.Act but apart from the factual aspects, the points of law applicable at this stage regarding the initiation of the proceedings u/s.148 of the I.T.Act and violation of notice made on serving it to the advocate as well as conditions prescribed i.e., reasons to believe laying satisfaction and sanction in the matter required as prescribed under the Provisions of I.T.Act u/s's i.e.,148, 149 and 151 of the Income Tax Act since are absent the proceeding has automatically lost its existence. 3) That in violation of main issue regarding service of Notice and the procedure on the law since have been violated and hit by the decisions of the Hon'ble Jurisdictional High Court prescribed may please be applied in this case. 4) That further issue in this respect of the detection of "pendrive"since made available by the DIT Investigation, the play of natural justice was denied. Therefore with humble submission, the proceedings initiated for the Assessment Year 2OO7-08 cannot be survived under the mandate. s) That the amount paid through banking transactions as furnished before the ld.DCIT circle-3(1), Bhubaneswar may please be entertained and applied in place of Rs.95,99,000/- but this being the factual issue unless the proceeding stands in the test of law then quashing of the proceeding since have been made in other similar cases may please be applied in the case of the present AssesseeAppellant and this petition filed is for modification of the facts so far the question of transactions are concerned and the statement furnished before the ld.DCIT Circle-3(1), Bhubaneswar and enclosed the statement submitted disclosing the payments made to crescendo Associates, Mumbai for consideration of the matter. 6) That in case the Hon'ble Bench entertains the matter, relevant material should be placed at the time of final disposal of the Appeal. Hence recall of the matter u/s.254(2) may please be made as provided under the law keeping in view of similar application made in other appeals. 2. Per contra Ld. DR referred, following written submissions: Where an assessee could not point out any apparent mistake 111 the impugned order the application was liable to be dismissed. (Smt Pushpa Agarwal v. ITt) 27 Taxmann.com 340) 2. The power to rectify a mistake does not co er ca es where a revision or review of order is intended. [CIT v. Ramesh Electric & Trading Co. 203 ITR 497 (Bom)]. 3. Such a mistake should not be established by an argument or long drawn process of reasoning. 4. Failure of ITA T to consider an argument advanced by either MA No.31/CTK/2021 3 party for drawing an inference is not an error apparent on the record. There could be en-or of judgement but it cannot be rectified u/s 254(2) of the Act. [CIT v. Ramesh Electric & Trading Co. 203 ITR 497 (80m)] 5. In the garb ofMA, the assessee can't reopen and reargue the whole matter. 6. Tribunal's power under section 254(2) is not to an en-or to be discovered by long drawn process of reasoning. [CIT v. Pearl Woolen. 1i lis 330 ITR 164 (P & H)] 7. The scope and ambit of application u/s 254(2) i very nan-ow. Recalling the entire order would mean passing a fresh order which is not the intent in scheme of Act. 8. An order can't be recalled on ground that on the date of hearing the AR of the assessee could not subm it the relevant documents. It is beyond the scope of section 254(2) of the Act. The assessee is responsible for such a lapse on his part. [Poona galvanizers p. Ltd. V. DCIT 45 taxmann.com 347 (Mum)] . 3. We have heard rival contentions and perused the records placed before us. Through this Misc. Application Ld. counsel for the assessee stated that there are various mistake apparent from records in the order of the Tribunal dated 18.01.2021 and the same needs to be recalled for a fresh hearing. We notice that the assessment u/s 147 of the Act was framed on 27.03.2015 after making an addition for alleged ‘on money’ payment of Rs. 95,99,000/- made on the basis of statement of M/s Niranjan Hiranandani and Mr. Surendra Hiranandani recorded during the search u/s 132(4) of the Act wherein both these persons stated that they received ‘on money’ to the tune of Rs.475.60 cr. from various MA No.31/CTK/2021 4 flat buyers whose names were stated in Annexure A-1 which included the name of assessee also. The assessee challenged the legality of issuance of notice u/s 148 of the Act, legality of the addition made without providing opportunity for cross examination and also challenged the merits but failed to succeed. Order of the ld. CIT(A) dated 31.03.2017 was challenged before this tribunal vide order dated 31.03.2018. The issues were restored to the file of Ld. CIT(A) for adjudicating the same fresh as per law. In compliance Ld. CIT(A) again decided the appeal of the assessee on 02.08.2019 and dismissed all the grounds raised by the assessee and against it the assessee came in appeal before this Tribunal but failed to succeed on any of the issues. 4. On perusal of the impugned order first issue was with regard to the validity of the notice served upon u/s148 of the Act. This tribunal observed that the notice was rightly served u/s 148 of the Act on the advocate of the assessee. However, as claimed by the Ld. counsel for the assessee the advocate was not authorized to receive the show cause notice u/s 148 of the Act. We observe that the Hon'ble jurisdictional High Court in the case of M/s. Nandaram Hanantram 37 ITR 500 (Ori) and also in Fatechand Agrawal 97 ITR 701(Ori) has held MA No.31/CTK/2021 5 that servicing of notice u/s 148 of the Act on the advocate was invalid if he/she was not authorized to receive the same. We notice that the Tribunal made mistake apparent on record by not referring to these judgment of Hon'ble Jurisdictional High Court and also not examining the facts about the proper service of notice u/s 148 of the Act on the person to whom it needs to be served, therefore, this issue which has been raised in ground no.2 & 3 of the assessee’s appeal needs to be recalled. 5. As regards ground no.5,6,7 & 8 through which the assessee challenged the addition being not sustainable in law because assessee was not provided an opportunity of cross examination, we find that the tribunal has discussed this issue in the impugned order but had rejected these grounds holding that the assessee has not asked Ld. AO for providing of cross examination and has never raised any objection regarding issuance of the notice also. We, however, on perusal of the records find that an apparent mistake had again cropped up in the order of the Tribunal. In the proceedings before the ld. CIT(A) specific ground no.5 & 6 has been raised by the assessee challenging the addition stating that in the interest of natural justice the Ld. DCIT should have confronted the assessee to Mr. Niranjan Hiranandani and Mr. MA No.31/CTK/2021 6 Surendra Hiranandani. It is judicially settled that Ld. CIT(A) has coterminous power with that of the ld. AO and the assessee is entitled to raise legal issue before the ld. CIT(A) or any higher appellate authority even if not raised before Ld. AO. We, therefore, of the view that under these given facts ground no.5,6,7 &8 of the assessee’s appeal needs to be recalled for fresh adjudication by this Tribunal. 6. Last issue relates to merit of the case. Addition for ‘on money’ cash payment has been made solely on the basis of the statement of the key person of the Hirandani Group wherein it has been stated that ‘on money’ has been paid namely crescendo Associates. 7. Before us Ld. counsel for the assessee has submitted that similar type of additions have already been made in the hands of other assessee’s who were also named in Annexure A-1 referred in the statement on Mr. Niranjan Hiranandani and Mr. Surendra Hiranandani recorded during course of search. It was also submitted that Coordinate Bench Mumbai in the case of ACIT vs. Balkrishna R. Chavan ITANo.4905/Mum/2017 dated 31.05.2019 has adjudicated with a very same issue relating to ‘on money’ payment to Hiranandani Group and the addition was made on the basis MA No.31/CTK/2021 7 of same statement which has been referred in the assessment order of the instant appeal and the coordinate Bench Mumbai after referring to the other decision of the Mumbai Tribunal in the case of ITO vs Shri Nikhil Vinod Agrawal ITANo.2573/Mum/2017 dated 19.09.2018 and ITANo.2574/Mum/2017 dated 13.10.2017 has deleted the addition. It was submitted by the ld. counsel for the assessee before us that these decisions which have been rendered before the date of pronouncing the impugned order have not been considered by the Tribunal. We find merit in the contention of the ld. counsel for the assessee and are of the view that not considering the decision of Coordinate Bench on the very same issue on similar fact is a mistake apparent from record as judicial jurisprudence needs to be followed while adjudicating the cases. We, therefore, hold that the issue on merits also needs to be recalled for fresh adjudication. Thus, we find that all the issues raised by the assessee in ITANo.366/CTK/2019 deserves to be recalled in view of our discussion made hereinabove. We accordingly recall our order dated 18.01.2021 so as to adjudicate all the issues raised therein afresh in view of the discussions made MA No.31/CTK/2021 8 hereinabove. Registry is directed to fix the case in due course and inform both the parties. 8. In the result, Misc. Application of the assessee in MANo.366/CTK/2019 is allowed as per terms indicated above. Order pronounced as per Rule 34 of I.T.A.T., Rules 1963 on 23.12.2021. Sd/- (सी.एम.गगा) (C.M.GARG) Sd/- (मिीष बोरड़) (MANISH BORAD) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनाांक Dated /12/2021 Patel, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : आदेशाि ु सार/ BY ORDER, (Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack 1. अऩीलाथी / The Appellant- 2. प्रत्यथी / The Respondent- 3. आयकि आय ु क्त(अऩील) / The CIT(A), 4. आयकि आय ु क्त / CIT 5. ववभागीय प्रनतननधध, आयकि अऩीलीय अधधकिण, कटक / DR, ITAT, Cuttack 6. गार्ा पाईल / Guard file. सत्यावऩत प्रनत //True Copy//