Bhaskar Eknath Avhad, Pune V. Deputy Commissioner of Income-tax,

MA 32/PUN/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6483 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 26-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Search and seizure
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !' # $ , % BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWAS THY, JM M.A. NO. 32/PUN/2016 ( ARISING OUT OF ITA NOS. 64, 66 TO 68/PUN/2009) & '& / ASSESSMENT YEARS : 2002-03, 2004-05 TO 2006-07 BHASKAR EKNATH AVHAD, 19/1-B/1, DNYANDEEP, KOTHRUD, PUNE-411 029 PAN : AAZPA3419N .. /APPLICANT ( / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(1), PUNE. . / RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI ACHAL SHARMA / DATE OF HEARING : 19.01.2018 / DATE OF PRONOUNCEMENT : 13.04.2018 ) / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY ASSESSEE U/ S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL IN ITA NO.64, 66 TO 68/ PUN/2009 FOR THE ASSESSMENT YEARS 2002-03, 2004-05 TO 2006-07 DATED 30.11.201 1. 2 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 2. THE ASSESSEE HAD EARLIER FILED A MISCELLANEOUS APPLICATION NO. 33/PUN/2012 SEEKING RECTIFICATION OF THE ABOVE MENTIONED O RDER. HOWEVER, THE SAID MISCELLANEOUS APPLICATION WAS WITHDRAWN WITH A LIBERT Y TO FILE AFRESH. THE TRIBUNAL VIDE ORDER DATED 27.08.2014 DISMISSED THE MISC ELLANEOUS APPLICATION OF ASSESSEE WITH LIBERTY AS PRAYED FOR. 3. THE ASSESSEE HAS FILED PRESENT APPLICATION SEEKING REC TIFICATION OF THE TRIBUNAL ORDER DATED 30.11.2011 (SUPRA) WITH DETAILED SUBMISS IONS. THE CONTENTS OF APPLICATION COMMON FOR THE ASSESSMENT YEARS 2002-03, 2004-05 TO 2006-07 ARE AS UNDER: MISCELLANEOUS APPLICATION U/S. 254(2) OF THE I.T. A CT, 1961 MAY IT PLEASE THE HON. MEMBERS THIS MISCELLANEOUS APPLICATION IS FILED BY THE APPE LLANT ASSESSEE AS UNDER: 1. THE HON. BENCH VIDE ITS ORDER DT.30/11/2011 WAS PLE ASED TO PARTLY ALLOW THE ABOVE REFERRED APPEALS OF THE APPELLANT F OR THE REASONS AS FULLY SET OUT IN THE SAID ORDER. 2. WITH DUE RESPECT TO THE HON. MEMBERS, THE APPELLANT HAS DISCOVERED FOLLOWING MISTAKES IN THE IMPUGNED ORDER WHICH ARE APPARENT FROM RECORDS AND NEED TO BE RECTIFIED U/S. 254[2] OF THE I.T. ACT 1961 AND HENCE THIS APPLICATION. REGARDING MARRIAGE EXPENSES 3. THE HON. BENCH WAS PLEASED TO RESTORE THE ISSUE ABO UT THE MARRIAGE EXPENSES FOR THE A.Y.2002-03, A.Y.2004-05 AND A.Y.2 005-06 TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR DECIDING THE S AME AFRESH.[PLEASE REFER PARA NO.3.2 ON PAGE NOS.5 & 6 OF THE IMPUGNED ORDER] THE APPELLANT MOST RESPECTFULLY SUBMITS THAT IT IS AN A DMITTED POSITION THAT FOR A.Y.2002-03 AND A.Y.2004-05, NO INCRIMINATING M ATERIAL/EVIDENCE OF WHATSOEVER NATURE EVIDENCING ANY UNDISCLOSED EXP ENDITURE INCURRED BY THE APPELLANT FOR MARRIAGE OF HIS DAUGH TER AND MARRIAGE OF HIS SON WAS UNEARTHED DURING SEARCH AND SEIZURE ACT ION. IN THE CIRCUMSTANCES FOR A.Y.2002-03 AND A.Y.2004-05, THE LEARNED ASSESSING OFFICER OUGHT NOT TO HAVE MADE ANY ADDITI ON ON THE GROUND OF ALLEGED UNEXPLAINED MARRIAGE EXPENSES PURELY ON ESTIMATION BASIS. IT IS A WELL SETTLED LAW THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL/ EVIDENCE NO ADDITION CAN BE MADE DURING A SSESSMENT PROCEEDINGS U/S. 153A R.W.S. 143[3] OF THE I.T. ACT 1961. IN SUPPORT OF THIS CONTENTION THE APPELLANT WOULD LIKE TO PLACE R ELIANCE ON THE 3 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 DECISION OF THE HON. BOMBAY HIGH COURT [NAGPUR BENC H] IN THE CASE OF C.I.T. V/S. MURLI AGRO PRODUCTS LTD IN INCOME TAX A PPEAL NO.36/2009 DECIDED ON 29/10/2010 AND ALSO THE DECISION OF HON. BOMBAY HIGH COURT IN THE CASE OF C.I.T. V/S CONTINENTAL WAREHOU SING CORPORATION [NHAVA SHEVA] LTD REPORTED IN 374 I.T.R. PAGE 645 [ BOM] IT IS ALSO A WELL SETTLED LAW THAT FAILURE TO FOLLOW THE DECISIO N OF THE JURISDICTIONAL HIGH COURT CONSTITUTES MISTAKE APPARENT FROM RECORD S WHICH IS REQUIRED TO BE RECTIFIED U/S. 254[2] OF THE I.T. AC T 1961 [PLEASE REFER DECISION OF HON. SUPREME COURT OF INDIA IN THE CASE OF A.C.I.T. V/S. SAURASHTRA KUTCH STOCK EXCHANGE LTD REPORTED IN 305 I.T.R. PAGE 227] THE APPELLANT THEREFORE HUMBLY REQUESTS THAT FOR A. Y.2002-03 AND A.Y.2004-05, THE ISSUE OF MARRIAGE EXPENSES RESTORE D TO THE FILE OF THE LEARNED ASSESSING OFFICER BE RECALLED AND THE ADDIT IONS MADE BY THE LEARNED ASSESSING OFFICER AND AS CONFIRMED BY THE L EARNED C.I.T.[A] BE DELETED. 4. REGARDING ADDITION OF RS. 19,17,000.00 MADE IN A.Y. 2005-06, THE APPELLANT MOST RESPECTFULLY SUBMITS THAT THE MATTER NEEDS TO BE DECIDED BY THE HON. BENCH AND THE DECISION OF SETTI NG ASIDE THE ISSUE TO THE FILE OF LEARNED ASSESSING OFFICER IS CONTRAR Y TO THE WELL SETTLED LEGAL PROVISIONS FOR FOLLOWING REASONS: I. IT IS A WELL SETTLED LAW THAT UNLESS THERE ARE M AJOR AND UNUSUAL REASONS THE HON. BENCH HAS TO DECIDE THE ISSUE ITSE LF AS THE PURPOSE OF FILING AN APPEAL BEFORE THE HON. I.T.A.T . IS TO ACHIEVE A FINAL FINDING ON FACTS. II. IT IS A WELL SETTLED LAW THAT POWER OF REMAND H AS TO BE USED VERY SPARINGLY AND NOT FOR GIVING SECOND INNING TO EITHE R OF THE PARTY TO FILL UP LACUNAS IN HIS EVIDENCE. III. IN THE PRESENT CASE THE ADDITION HAS BEEN BASE D SOLELY ON ONE SEIZED PAPER THE CONTENTS OF WHICH ARE HIGHLY DISPU TED BY BOTH THE PARTIES. THE LOWER AUTHORITIES FOR THE REASONS BEST KNOWN TO THEM DID NOT CARRY OUT FURTHER INVESTIGATIONS. IV. IN SUPPORT OF THE AFORESAID CONTENTION THE APPE LLANT WISHES TO PLACE RELIANCE ON FOLLOWING CASE LAWS: A. M/S M. G. SHAHANI & CO. V/S COLLECTOR OF CENTRAL EX CISE REPORTED IN AIR 1994 SC 2413 B. PATHIKONDA BALASUBBA SETTY [DECEASED] V/S. C.I.T. REPORTED IN 65 I.T.R. PAGE 252 [MYSORE] C. ZUARI LEASING & FINANCE CORPORATION LTD V/S. I.T.O. REPORTED IN 112 I.T.D. PAGE 205 [TM] IT IS THEREFORE MOST RESPECTFULLY SUBMITTED THAT TH E ORDER OF REMAND IS A MISTAKE APPARENT FROM RECORDS AND HENCE THE SA ME MAY PLEASE BE CORRECTED BY RECALLING THE ORDER AND ADJU DICATING THE ISSUE. REGARDING ADDITION ON ACCOUNT OF CASH AMOUNTI NG TO RS.4,32,000.00 FOR A.Y.2005-06 AND RS.20,29,400.00 FOR A.Y.2006-07. 4 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 5. THIS ISSUE HAS BEEN DEALT WITH BY THE HON. MEMBE RS IN PARA NO.4. 1 ON PAGE NO.7 OF THE IMPUGNED ORDER AND THE MATTER HAS BEEN RESTORED TO THE FILE OF THE LEARNED ASSESSING OFFICER. THE APPELLANT MOST RESPECTFULLY SUBMITS THAT WITHOUT PO INTING OUT ANY SPECIFIC REASONS THE ISSUE IS RESTORED BEFORE THE L EARNED ASSESSING OFFICER, WHICH CONSTITUTES MISTAKE APPARENT FROM RE CORDS WHICH NEEDS TO BE CORRECTED FOR THE REASONS GIVEN HEREINA BOVE FOR ISSUE OF MARRIAGE EXPENSES FOR THE A.Y.2003-04 & A.Y.2004-05 . FURTHERMORE THE HON. BENCH HAS NOT DEALT WITH ANY O F THE RELEVANT CASE LAWS CITED BY THE APPELLANT DURING THE COURSE OF HEARING AND THEREFORE THIS ALSO CONSTITUTES MISTAKE APPARENT FR OM RECORDS WHICH NEEDS TO BE CORRECTED BY RECALLING THE IMPUGNED ORD ER AND ADJUDICATING THE ISSUE. REGARDING ADDITION OF RS.4,00,000.00 IN RESPECT OF ALLEGED UNPROVED ADVANCE RECEIVED FROM MR. ASHOK G. MULCHAN DANI 6. THE APPELLANT MOST RESPECTFULLY SUBMITS THAT THE HON. BENCH VIDE PARA NO.7.1 ON PAGE NO.11 OF THE IMPUGNED ORDE R WAS PLEASED TO DISMISS THE GROUND OF APPEAL RAISED BY T HE APPELLANT IN RESPECT OF ADDITION FOR ADVANCE OF RS.4,00,000.00 R ECEIVED FOR LAND FROM MR.ASHOK G MULCHANDANI. THE APPELLANT MOST RES PECTFULLY SUBMITS THAT THE SAID ADVANCE WAS REFLECTED IN THE REGULAR BOOKS OF ACCOUNT OF THE APPELLANT FOR THE A.Y.2002-03 AND WA S DULY REFLECTED IN THE RETURN OF INCOME FILED FOR A.Y.200 2-03 BEFORE THE SEARCH AND SEIZURE ACTION. THE APPELLANT MOST RESPE CTFULLY SUBMITS THAT DURING THE SEARCH AND SEIZURE ACTION NO INCRIM INATING MATERIAL/EVIDENCE OF WHATSOEVER NATURE EVIDENCING T HE FALSITY OF THE SAID TRANSACTION WAS UNEARTHED. IN FACT DURING THE ASSESSMENT PROCEEDINGS, THE SAID PERSON HAS CONFIRMED THE SAID TRANSACTION. IN THE CIRCUMSTANCES THE LEARNED ASSESSING OFFICER OUG HT NOT TO HAVE MADE ANY ADDITION IN RESPECT OF THIS TRANSACTION. I T IS A WELL SETTLED LAW THAT IN THE ABSENCE OF ANY INCRIMINATING MATERI AL/EVIDENCE NO ADDITION CAN BE MADE DURING ASSESSMENT PROCEEDINGS U/S 153A R.W.S. 143[3] OF THE I.T. ACT 1961. IN SUPPORT OF T HIS CONTENTION THE APPELLANT WOULD LIKE TO PLACE RELIANCE ON THE DECIS ION OF THE HON. BOMBAY HIGH COURT [NAGPUR BENCH] IN THE CASE OF C.I .T. V/S. MURLI AGRO PRODUCTS LTD IN INCOME TAX APPEAL NO.36/2009 D ECIDED ON 29/10/2010 AND ALSO THE DECISION OF HON. BOMBAY HIG H COURT IN THE CASE OF C.I.T. V/S. CONTINENTAL WAREHOUSING COR PORATION [NHAVA SHEVA] LTD REPORTED IN 374 I.T.R. PAGE 645 [BOM]. I T IS ALSO A WELL SETTLED LAW THAT FAILURE TO FOLLOW THE DECISION OF THE JURISDICTIONAL HIGH COURT CONSTITUTES MISTAKE APPARENT FROM RECORD S WHICH IS REQUIRED TO BE RECTIFIED U/S 254[2] OF THE I.T. ACT 1961 [PLEASE REFER DECISION OF HON. SUPREME COURT OF INDIA IN THE CASE OF A.C.I.T. V/S. SAURASHTRA KUTCH STOCK EXCHANGE LTD REPORTED IN 305 I.T.R. PAGE 227] THE APPELLANT THEREFORE HUMBLY REQUESTS THAT T HE DECISION OF THE HON. BENCH DISMISSING THE GROUND OF APPEAL IN R ESPECT OF THIS ADDITION BE RECALLED AND THE ADDITION MADE BY THE L EARNED ASSESSING OFFICER AND AS CONFIRMED BY THE LEARNED C .I.T.[A] BE DELETED. ABOUT ADDITION OF RS.41,01,317.00 MADE A.Y.2006-07 ON ACCOUNT OF JEWELLERY. 7. THIS ISSUE HAS BEEN DEALT WITH BY THE HON. MEMBE RS IN PARA NO.5.2 ON PAGE NO.9 OF THE IMPUGNED ORDER AND THE M ATTER HAS BEEN RESTORED TO THE FILE OF THE LEARNED ASSESSING OFFICER AS THE 5 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 LEARNED ASSESSING OFFICER NEITHER REJECTED THE CONT ENTS OF AFFIDAVITS FILED IN THE MATTER BY THE APPELLANT NOR CROSS-EXAM INED THE PERSONS. THE APPELLANT MOST RESPECTFULLY SUBMITS TH AT RESTORATION OF THE ISSUE TO THE FILE OF THE LEARNED ASSESSING O FFICER AMOUNTS TO GIVING SECOND INNING TO THE DEPARTMENT, WHICH IS CL EARLY IMPERMISSIBLE FOR THE REASONS GIVEN HEREINABOVE. TH E APPELLANT THEREFORE MOST HUMBLY REQUESTS THAT THE ORDER MAY P LEASE BE RECALLED AND THE ISSUE BE ADJUDICATED. ABOUT ADDITION OF RS.3,32,227.00 MADE IN A.Y.2006-0 7 ON ACCOUNT OF SILVER ARTICLES 8. THIS ISSUE HAS BEEN DEALT WITH BY THE HON. MEMBE RS IN PARA NO.6.1 ON PAGE NO.10 OF THE IMPUGNED ORDER AND THE MATTER HAS BEEN RESTORED TO THE FILE OF THE LEARNED ASSESSING OFFICER AS THE LEARNED ASSESSING OFFICER IN A SUMMARY MANNER REJEC TED THE CONTENTIONS OF THE APPELLANT. THE APPELLANT MOST RE SPECTFULLY SUBMITS THAT RESTORATION OF THE ISSUE TO THE FILE O F THE LEARNED ASSESSING OFFICER AMOUNTS TO GIVING SECOND INNING T O THE DEPARTMENT, WHICH IS CLEARLY IMPERMISSIBLE FOR THE REASONS GIVEN HEREINABOVE. THE APPELLANT THEREFORE MOST HUMBLY RE QUESTS THAT THE ORDER MAY PLEASE BE RECALLED AND THE ISSUE BE A DJUDICATED. ABOUT MAINTAINABILITY OF THE PETITION 9. THE APPELLANT HAD EARLIER FILED MISCELLANEOUS AP PLICATION NO.33/PN/2012 AND SUPPLEMENTARY M.A.FILED ON 12/08/ 2013. AT THE TIME OF HEARING OF THE AFORESAID PETITIONS, THE APPELLANT REQUESTED TO THE HON. BENCH THAT HE WANTED TO FILE ONE MISCELLANEOUS PETITION AND THEREFORE HE MAY BE PERM ITTED TO WITHDRAW THE PETITIONS WITH A LIBERTY TO FILE FRESH PETITION. THE HON. BENCH VIDE ITS ORDER DT.27/08/2014 GRANTED THE LEAV E TO THE APPELLANT TO WITHDRAW THE PETITIONS AND FILE A FRES H PETITION IF DESIRED SO. IN THE CIRCUMSTANCES THE PRESENT PETITI ON IS MAINTAINABLE AND THE SAME HAS BEEN FILED WITHIN PRE SCRIBED TIME LIMIT. 10. THE APPELLANT HAS PAID THE PRESCRIBED FEES OF R S.200.00 [RS.50.00 FOR EACH ASSESSMENT YEAR] FOR THE PRESENT PETITION AND THE COPY OF CHALLAN IS ENCLOSED. 11. IN THE CIRCUMSTANCES THE HON. BENCH HAS POWERS AND AUTHORITY TO HEAR AND DECIDE THE PRESENT PETITION. 12. THE APPELLANT THEREFORE HUMBLY PRAYS THAT THE I MPUGNED ORDER MAY PLEASE BE RECALLED AND THE NECESSARY RECTIFICAT ION ORDERS MAY PLEASE BE PASSED AS REQUESTED HEREINABOVE, FOR WHIC H ACT OF KINDNESS, THE APPELLANT ASSESSEE SHALL ALWAYS REMAI N OBLIGED. 4. SHRI SUNIL GANOO APPEARING ON BEHALF OF ASSESSEE SUBMITT ED THAT ASSESSMENT PROCEEDINGS IN THE CASE OF ASSESSEE WERE CARRIED OUT CONSEQUENT TO SEARCH U/S. 132 OF THE ACT IN THE CASE OF MAHARASHTRA ACADEMY OF ENGINEERING AND EDUCATIONAL RESEARCH (MAEER) ON 20.07.2005. THE ASSESS EE IS AN 6 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 HONORARY PRESIDENT OF MAHARASHTRA ACADEMY OF ENGINEERING AND EDUCATIONAL RESEARCH. NOTICE U/S. 153A OF THE ACT WAS ISSUED AND SE RVED ON THE ASSESSEE. CONSEQUENT TO THE SAID NOTICE, ASSESSEE FILED RETURN OF INCOME IN THE IMP UGNED ASSESSMENT YEARS. THE LD. AR SUBMITTED THAT TRIBUNAL VIDE ORDER DATED 30.11.2011 HAS RESTORED THE ISSUE REGARDING MARRIAGE EXP ENSES FOR ASSESSMENT YEARS 2002-03, 2004-05 AND 2005-06 BACK TO THE FILE O F ASSESSING OFFICER FOR DECIDING THE SAME AFRESH. THE LD. AR POINTED THAT NO INCRIMINATING MATERIAL/EVIDENCE WHATSOEVER WAS SEIZED DURING SEARCH IN RESPECT OF ASSESSMENT YEAR 2002-03 AND 2004-05. IN THE ABSENCE OF ANY INCRIMINATING MATERIAL/EVIDENCE, ADDITION CANNOT BE MADE IN ASSESSMENT P ROCEEDINGS U/S. 153A R.W.S 143(3) OF THE ACT. 4.1 THE LD. AR SUBMITTED THAT A PERUSAL OF ASSESSMENT ORD ER FOR ASSESSMENT YEARS 2002-03 AND 2004-05 WOULD SHOW THAT THERE IS NO REFERENCE OF ANY INCRIMINATING MATERIAL FOR MAKING ADDITIONS IN RESPECT OF MARRIA GE EXPENSES. PLACING RELIANCE ON THE DECISIONS OF HON'BLE BOMBAY HIGH COU RT IN THE CASE OF CIT VS. MURLI AGRO PRODUCTS IN ITA NO.36/2009 DECIDED ON 29.10.2010 AND CIT VS. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA ) REPORTED AS 374 ITR 645 (BOM.), THE LD. AR SUBMITTED THAT NO ADDITION IS C ALLED FOR IN THE ABSENCE OF INCRIMINATING MATERIAL. FURTHER, TO BUTTRESS HIS S UBMISSIONS, THE LD. AR PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME CO URT OF INDIA IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. REPORTED AS 305 ITR 227. 4.2 SIMILAR SUBMISSIONS WERE MADE BY ASSESSEE IN RESPECT O F ADDITION OF RS.4,00,000/- ON ACCOUNT OF UNPROVED ADVANCE RECEIVED FR OM ASHOK G. MULCHANDANI. 7 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 4.3 THE LD. AR SUBMITTED THAT ADDITION ON ACCOUNT OF CASH RS.4,32,000/- FOR ASSESSMENT YEAR 2005-06 AND RS.20,29,400/- FOR ASSESSME NT YEAR 2006-07, HAVE BEEN RESTORED TO THE FILE OF ASSESSING OFFICER BY TRIBU NAL WITHOUT POINTING ANY SPECIFIC REASON. THIS CONSTITUTES MISTAKE APPARENT FRO M RECORD AND IT NEEDS TO BE CORRECTED. 4.4 THE LD. AR POINTED THAT ADDITION ON ACCOUNT OF JEWELLE RY AND SILVER ARTICLES FOR THE ASSESSMENT YEAR 2006-07 HAS BEEN REST ORED BACK TO THE FILE OF ASSESSING OFFICER BY TRIBUNAL. THE CONTENTS OF AFFIDAVIT FILED BY ASSESSEE BEFORE ASSESSING OFFICER WERE NEITHER REJECTED NOR CROSS EXAMIN ED. THE ASSESSING OFFICER SUMMARILY REJECTED THE CONTENTIONS OF ASSESSEE. R ESTORING THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER WOULD LEAD TO GRANTING O F SECOND INNINGS TO THE ASSESSING OFFICER. THE LD. AR SUBMITTED THAT THE TRIBUN AL SHOULD HAVE DECIDED THESE ISSUES RATHER THAN RESTORING THEM BACK T O THE FILE OF ASSESSING OFFICER. SINCE ALL THE FACTS WERE AVAILABLE ON RECORD, REMITTING THESE ISSUES BACK TO THE FILE OF ASSESSING OFFICER IS MISTAKE APPARENT FR OM RECORD. IN SUPPORT OF HIS SUBMISSIONS, THE LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) M/S. M.H. SHAHANI & CO VS. COLLECTOR OF CENTRAL EXCISE, SCC 269 (SC) II) ZUARI LEASING & FINANCE CORPORATION LTD VS. ITO REPORTE D AS 115 TTJ DELHI (TM) 721. III) ACIT VS. ANIMA INVESTMENT LTD REPORTED AS 73 ITD 125. 5. ON THE OTHER HAND, SHRI ACHAL SHARMA REPRESENTING TH E DEPARTMENT SUBMITTED THAT ORDER OF THE TRIBUNAL DATED 30.11.2011 IS W ELL REASONED ORDER AND THE ASSESSEE HAS FAILED TO POINT OUT ANY APPARENT M ISTAKE IN THE ORDER WARRANTING RECTIFICATION. THE ASSESSEE IS SEEKING REVIEW OF T HE ENTIRE ORDER IN 8 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 THE GRAB OF RECTIFICATION. THE LD. DR POINTED THAT ASSESSE E IN THE GROUNDS OF APPEAL HAS NOT RAISED ANY GROUND ASSAILING THE FINDINGS OF LOWER AUTH ORITIES ON THE ISSUE OF MAKING ADDITION WITHOUT THERE BEING ANY INCRIM INATING MATERIAL. THE LD. DR PRAYED FOR DISMISSING THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIV E OF RIVAL SIDES AND HAVE CONSIDERED THE CONTENTS OF MISCELLANEOUS APPLICA TION AND THE JUDGMENTS ON WHICH THE LD. AR HAS PLACED RELIANCE. THE AS SESSEE HAS FILED DETAILED APPLICATION SEEKING RECTIFICATION IN THE ORDER OF TRIBU NAL DATED 30.11.2011. THE FIRST AND PRIME GRIEVANCE OF ASSESSEE IS THAT THE TR IBUNAL HAS REMITTED THE ISSUE WITH RESPECT TO MARRIAGE EXPENSES AN D UNPROVED ADVANCE RECEIVED FROM ASHOK G. MULCHANDANI, BACK TO THE FILE OF ASSES SING OFFICER FOR RE-ADJUDICATION, THOUGH NO INCRIMINATING MATERIAL WAS FOUND D URING SEARCH IN RESPECT OF ABOVE SAID ADDITIONS. A PERUSAL OF GROUNDS OF A PPEAL, IN ALL THE IMPUGNED ASSESSMENT YEARS, WE FIND THAT NO SUCH LEGAL GRO UND WAS RAISED IN THE GROUNDS OF APPEAL OR BY WAY OF ADDITIONAL GROUNDS BEFO RE THE TRIBUNAL. A PERUSAL OF THE TRIBUNAL ORDER DATED 30.11.2011 SHOWS THAT THERE WAS NO SUBMISSION MADE BY ASSESSEE IN RESPECT OF THE LEGAL GROUN D, NOW BEING RAISED BEFORE US IN MISCELLANEOUS APPLICATION U/S. 254(2) OF THE ACT. I T WOULD BE PERTINENT TO POINT HERE THAT THE ORDER OF TRIBUNAL WAS P ASSED ON 30.11.2011 AND THE JUDGMENT IN THE CASE OF CIT VS. MURLI AGRO PRODU CTS LTD. (SUPRA.) WAS PASSED BY HON'BLE BOMBAY HIGH COURT ON 29.10.2010 I.E. ALM OST A YEAR PRIOR TO THE PASSING OF THE ORDER FOR WHICH NOW ASSESSEE IS SE EKING RECTIFICATION. THE ASSESSEE NEVER RAISED ANY GROUND IN APPEAL BEFORE TRIBUN AL ASSAILING THAT THE 9 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 ADDITIONS HAVE BEEN MADE WITHOUT THERE BEING ANY INCRIMINA TING MATERIAL, HENCE, NO ADDITION CAN BE MADE. WE ARE OF CONSIDERED VIE W THAT RAISING OF ADDITIONAL GROUND OR A NEW LEGAL GROUND IN PROCEEDINGS U/S . 254(2) OF THE ACT IS NOT PERMISSIBLE. THE SCOPE OF REFERENCE U/S. 254(2) IS LIMITED TO THE EXTENT OF RECTIFICATION OF ANY MISTAKE APPARENT FROM RECORD. THE TRIBU NAL CANNOT ENTERTAIN FRESH GROUNDS IN PROCEEDINGS U/S. 254(2) OF THE ACT. 7. IN SO FAR AS OTHER GROUNDS RAISED BY ASSESSEE I.E. AD DITIONS ON ACCOUNT OF CASH RS.4,32,000/- FOR ASSESSMENT YEAR 2005-06 AND RS .20,29,000/- FOR ASSESSMENT YEAR 2006-07 AND JEWELLERY AND SILVER ARTICLE ETC. ARE CONCERNED, THE LD. AR OF THE ASSESSEE HAS FAILED TO POINT ANY APPARE NT MISTAKE IN THE ORDER OF TRIBUNAL WARRANTING RECTIFICATION. THE HON'BLE JURISD ICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING COMPANY REPORTED AS 203 ITR 497 HAS HELD THAT THE SCOPE OF SECTION 254(2) IS LIMITED TO RECTIFICATION OF MISTAKE APPARENT FROM RECORD ITSELF AND NOT RECTIFICATION IN ERROR OF JUDGMENT. THE RELEVANT OBSERVATIONS OF THE HON'BLE HIGH COURT ARE AS UNDER: THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RE CTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRI BUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE W HICH IS APPARENT FROM THE RECORD ITSELF. WE ARE OF CONSIDERED VIEW THAT IN THE GUISE OF RECTIFICATION, THE ASSESSEE IS SEEKING REVIEW OF THE ORDER OF TRIBUNAL, WHICH IS BEYOND THE SCOPE OF POWERS AS ENVISAGED U/S. 254(2) OF THE ACT. 8. THE LD. AR HAS NOT BEEN ABLE TO SHOW ANY MISTAKE, MUC H LESS ANY APPARENT MISTAKE THAT WARRANTS RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 10 MA NO. 32/PUN/2016 A.YS. 2002-03, 2004-05 TO 2006-07 30.11.2011. ACCORDINGLY, MISCELLANEOUS APPLICATION FILED BY ASSES SEE IS DISMISSED BEING DEVOID OF ANY MERIT. 9. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS DISMISS ED. ORDER PRONOUNCED ON FRIDAY, THE 13 TH DAY OF APRIL, 2018. SD/- SD/- ( / ANIL CHATURVEDI ) ( # $ /VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; ! / DATED : 13 TH APRIL, 2018. SB ) * +,# -#' / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (A)-1, PUNE. 4. THE CIT-1, PUNE. $% &'(#)* , '#')* , +,- , / DR, ITAT, A BENCH, PUNE. 6. (./01 / GUARD FILE. // TRUE COPY // 2 / BY ORDER, 3# )- / PRIVATE SECRETARY '# ')* , / ITAT, PUNE.