Saroj Ceramic Industries, Wankaner V. The Income Tax Officer,Ward-1(2), RAJKOT-GUJARAT

MA 33/RJT/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0376 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-04-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 07-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Income from undisclosed sources; Additional evidence; Valuation report; Capital receipt

Judgement Text

0 Y : S : IN THE INCOME TAX APPELLATE TRIBU N AL : RAJKOT BENCH : RAJKOT . . T . . BEFORE SHRI T. K. SHARM A JM AND SHRI D. K. SRIVASTAVA AM M. A . NO . 33 /RJ T/2012 (ARIS I N G OUT OF ORDER IN ITA NO. 675 /RJT/201 0 ) HR R / ASSESSMENT YEAR 200 6 - 0 7 M/S SAROJ CERAMIC INDUSTRIES, V. IT O , WARD - 1(2), RAJKOT PANCHASAR, WANKANER PAN: AALFM 8488P DATE OF HEARING: 1 2 .0 4 .2013 DATE OF PRONOUNCEMENT: 30 . 0 5 . 2013 FOR THE APPLICANT - ASSESSEE: NONE FOR THE REVENUE: SHRI AVINASH KUMAR , DR / ORDER THE M ISCELLANEOUS A PPLICATION FILED BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THIS TRIBUNAL ON 27.04.2012 IN M/S.SAROJ CERAMIC INDUSTRIES V. ITO BE ARING ITA NO.675/RJT/2010. THE MA WAS LISTED FOR HEARING FIRSTLY ON 24.1.2013 AND THEREAFTER ON 12.4.2013. ON 24.1.2013, HEARING WAS ADJOURNED AT THE REQUEST OF THE APPLICANT - ASSESSEE. NOTICE FIXING THE MA FOR HEARING ON 12.4.2013 WAS SERVED . HOWEVER, NEIT HER ANYONE ENTERED APPEARANCE ON BEHALF OF THE ASSESSEE NOR WAS ANY APPLICATION FOR ADJOURNMENT FILED BEFORE THE BENCH. THE MA FILED BY THE ASSESSEE IS SELF - EXPLANATORY. IN THIS VIEW OF THE MATTER, THE MA WAS HEARD EX - PARTE QUA THE APPLICANT - ASSESSEE. 2. THE ASSESSEE HAS POINTED OUT 2 MISTAKES IN THE AFORESAID ORDER PASSED BY THIS TRIBUNAL . F IRST MISTAKE, ACCORDING TO THE ASSESSEE, IS NON - CONSIDERATION OF MATERIALS AVAILABLE ON RECORD WHILE SECOND MISTAKE RELATES TO NON - CONSIDERATION OF DECISION S OF THE H ONBLE SUPREME COURT AND THE J URISDICTIONAL HIGH COURT. 3. WE SHALL FIRST TAKE UP THE MISTAKE RELATING TO NON - CONSIDERATION OF MATERIALS AVAILABLE ON RECORD , AS ALLEGED BY THE APPLICANT . PARA - 2 OF THE M ISCELLANEOUS A PPLICATION FILED BY THE ASSESSEE IN TH IS BEHALF READS AS UNDER: - 2. NON - CONSIDERATION OF MATERIAL AVAILABLE ON RECORDS: - 2.1 IN THIS CASE THE ADDITION CONFIRMED BY THE LD. CIT(A) OF RS.22,70,370/ - WAS ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN COST OF CONSTRUCTION 2 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 OF FACTORY BUILDING A ND TUNNEL KILN. THE ADDITION WAS MADE ON THE ONLY BASIS OF VALUATION REPORT SUBMITTED BEFORE THE UNION BANK OF INDIA BY VALUER, FOR THE PURPOSE OF AVAILING LOAN FACILITY. THE DETAILS OF THE COST REFLECTED IN THE BOOKS OF ACCOUNT VIS - - VIS IN VALUATION REPO RT IS AS UNDER: SL DESCRIPTION VALUE ADOPTED BY VALUER (A) VALUE REFLECTED IN BOOKS (B) DIFFERENCE (A - B) 1 COST OF BUILDING 54,22,900 31,52,350 22,70,370 2 COST OF KILN 1,76,000 27,34,552 ( - )25,58,552 GRAND TOTAL 55,98,900 58,86,902 ( - )2,88,182 2.2 T HE VALUATION REPORT WAS NOT ACCEPTED BY UNION BANK OF INDIA AND CONSEQUENTLY LOAN PROPOSAL WAS ALSO REJECTED BY THE BANK. FURTHER, THE VALUATION REPORT WAS ALSO CONTAINING SEVERAL FACTUALLY INCORRECT INSTANCES, AS POINTED OUT BY THE APPELLANT IN ITS SUBMIS SION. THUS THE VALUATION REPORT HAS LOST ITS EVIDENTIARY VALUE, SINCE IT WAS NEVER RELIED UPON BY THE BANKER. 2.3 DURING THE COURSE OF THE HEARING OF THE APPEAL, HELD ON 22.03.2012, HONBLE BENCH HAS, THEREFORE, CALLED FOR THE VALUATION REPORT SUBMITTED B EFORE THE RAJKOT NAGRIK SAHAKARI BANK LTD., WHICH HAS APPROVED FINANCE FOR THE APPELLANT. THE APPELLANT HAS, VIDE ITS LETTER DATED 26.03.2012 , SUBMITTED THE SAID REPORT ALONG - WISE SANCTION LETTER ISSUED BY THE BANK BEFORE THE HONBLE BENCH. AS PER THE SAID REPORT THE VALUE OF CONSTRUCTION OF BUILDING AND TUNNEL KILN WAS AS UNDER: SL DESCRIPTION VALUE ADOPTED BY VALUER (A) VALUE REFLECTED IN BOOKS (B) DIFFERENCE (A - B) 1 COST OF BUILDING 32,53,740 31,52,350 1,01,390 2 COST OF KILN 27,34,552 27,34,552 NIL G RAND TOTAL 59,88,292 58,86,902 1,01,390 2.4 THUS THE ABOVE REFERRED VALUATION REPORT, WHICH HAS BEEN APPROVED BY THE BANK AND BASED ON WHICH THE FINANCE WAS MADE, IS IN CONFORMITY WITH THE BOOKS OF ACCOUNT MAINTAINED BY THE APPELLANT. 2.5 HOWEVER, WHI LE PASSING THE ORDER THE ABOVE - REFERRED VALUATION REPORT (SUBMITTED TO THE RAJKOT NAGRIK SAHAKARI BANK LTD) HAS NOT BEEN 3 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 CONSIDERED AND DEALT WITH IN THE ORDER BY THE HONBLE BENCH, WHICH WAS PART OF THE MATERIAL AVAILABLE ON RECORD AT THE TIME OF HEARING AND PASSING THE ORDER. SINCE, NON - CONSIDERATION OF MATERIAL AVAILABLE ON RECORDS, WHICH IS CRITICAL IN NATURE AND VERY MUCH RELEVANT FOR THE PURPOSE OF DECIDING THE ISSUES INVOLVED IN THE APPEAL, AMOUNTS TO MISTAKE APPARENT FROM RECORDS AND HONBLE BENCH I S, THEREFORE, MOST RESPECTFULLY URGED TO RECALL THE SAID ORDER SO THAT THE MATERIAL IN FORM OF VALUATION REPORT SUBMITTED BEFORE THE RAJKOT NAGRIK SAHAKARI BANK LTD., CAN BE CONSIDERED BY THE HONBLE BENCH TO RENDER JUSTICE. 4. THE SUBSTANCE OF THE SUBM ISSION S MADE BY THE ASSESSEE IS THAT THE ASSESSE HAS GOT TWO VALUATION REPORTS PREPARED FOR AVAILING LOAN FACILITIES FROM THE BANK. FIRST VALUATION REPORT WAS OBTAINED BY THE ASSESSEE FROM SELARKA ASSOCIATES ACCORDING TO WHICH THE COST OF FACTORY BUILDING WAS RS.54,22,900/ - IN ADDITION TO COST OF CONSTRUCTION OF TUNNEL KILN OF RS.1,76,000/ - . THE SAID VALUATION REPORT WAS SUBMITTED, ACCORDING TO THE ASSESSEE, TO THE UNION BANK OF INDIA FOR AVAILING LOAN. BUT THE LOAN WAS NOT SANCTIONED BY THE SAID BANK. THE ASSESSEE FURTHER CLAIMS THAT IT OBTAINED ANOTHER VALUATION REPORT WHICH WAS SUBMITTED TO RAJKOT NAGRIK SAHAKARI BANK LTD. FOR AVAILING LOAN. IT IS CONTENDED BY THE ASSESSEE THAT THE COST OF CONSTRUCTION OF FACTORY BUILDING ACCORDING TO THE SAID VALUATION R EPORT WAS RS.32,53,740/ - WHILE COST OF CONSTRUCTION OF KILN WAS RS.27,34,552/ - . IT IS THE SUBMISSION OF THE ASSESSEE THAT THIS TRIBUNAL HAS CONSIDERED THE VALUATION REPORT SUBMITTED TO THE UNION BANK OF INDIA AND IGNORED THE VALUATION REPORT SUBMITTED TO R AJKOT NAGRIK SAHAKARI BANK LTD. AND THEREFORE THE ORDER PASSED BY TH IS TRIBUNAL SUFFERS FROM A MISTAKE APPARENT FROM THE RECORD. 5. PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE VALUATION REPORT PREPARED BY M/S. SELARKA ASSOCIATES ALONE WAS SUBMITTED T O THE ASSESSING OFFICER O N THE BASIS OF WHICH THE ASSESSING OFFICER HAD MADE THE IMPUGNED ADDITION. THERE IS NOTHING IN THE ASSESS MENT ORDER TO SHOW THAT AN Y OTHER VALUATION REPORT WAS SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. IN THE STATEMEN T OF FACTS SUBMITTED BY THE ASSESSEE BEFORE THE CIT(A), REFERENCE HAS BEEN MADE TO THE VALUATION REPORT OF M/S. SELARKA ASSOCIATES AND TO NO OTHER VALUATION REPORT. 4 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 PERUSAL OF THE ORDER PASSED BY THE CIT(A) ALSO SHOWS THAT REFERENCE WAS MADE BY THE ASSESSE E ONLY TO THE VALUATION REPORT PREPARED BY M/S. SELARKA ASSOCIATES AND TO NO OTHER VALUATION REPORT. THE CIT(A) HAS PASSED HIS APPELLATE ORDER ON THE BASIS OF THE REPORT PREPARED BY M/S. SELARKA ASSOCIATES ALONE. IT IS THEREFORE QUITE EVIDENT THAT THE OTHE R VALUATION REPORT ALLEGEDLY PREPARED BY ANOTHER VALUER , NAMELY , E NG R . MANISH V. DOSHI , WAS NEVER SUBMITTED BEFORE THE ASSESSING OFFICER OR BEFORE THE LD CIT(A). SECONDLY, T HE ASSESSEE HAS GIVEN NO REASON AS TO WHY THE OTHER VALUATION REPORT WAS NOT SUBMIT TED BEFORE THE AO AS WELL AS THE CIT(A). THIRDLY, THERE IS NOTHING ON RECORD TO INDICATE THAT THE SAID VALUER , NAMELY , ENGR . MANISH V. DOSHI , IS AT ALL REGISTERED WITH THE GOVERNMENT FOR THE PURPOSE OF DETERMINATION OF COST OF CONSTRUCTION WHILE THE OTHER VALUER NAMELY M/S. SELARKA ASSOCIATES IS A GOVERNMENT REGISTERED VALUER. FOURTHLY, T HE REPORT PREPARED BY ENGR . MANISH V. DOSHI WAS IN THE NATURE OF ADDITIONAL EVIDENCE BUT THE ASSESSEE DID NOT MAKE ANY SUBMISSION FOR ADMISSION OF THE SAID VALUATION REPORT AS ADDITIONAL EVIDENCE. FIFTHLY, THE ASSESSEE DID NOT MAKE ANY EFFORT AT THE TIME OF HEARING TO ESTABLISH AS TO HOW THE COST OF CONSTRUCTION DETERMINED IN THE FIRST VALUATION REPORT PREPARED BY M/S. SELARKA ASSOCIATES WAS INCORRECT. SIXTHLY, A S EVIDENT FR OM THE OPENING SENTENCE OF PARAGRAPH 10 OF THE TRIBUNALS ORDER, ALL THE SUBMISSIONS MADE BY BOTH THE PARTIES WERE DULY CONSIDERED BEFORE TAKING A VIEW IN THE MATTER AND THAT I T IS ONLY AFTER T AKING INTO CONSIDERATION ALL THE MATERIALS AVAILABLE ON RECORD INCLUDING THE VALUATION REPORT PLACED BEFORE THE ASSESSING OFFICER AND THE LD CIT(A) THAT A CONSCIOUS DECISION WAS TAKEN TO SUSTAIN THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD CIT(A). THE ASSESSEE NOW WANTS THE SAID VALUATION REPORT , WHICH WAS NEVER PRODUCED BEFORE THE AO/CIT(A), ADMITTED AS ADDITIONAL EVIDENCE BY THIS TRIBUNAL EVEN IN THE ABSENCE OF ANY EXPLANATION FOR NOT PLACING IT FIRSTLY BEFORE THE AO AND THEREAFTER BEFORE THE CIT(A) AND ON THAT BASIS THE ASSESSEE SEEK S REVIEW OF THE ORDER PASSED BY THIS TRIBUNAL ONLY FOR THE REASON THAT THE DECISION HAS GONE AGAINST THE ASSESSEE. REVIEW OF ORDER IS NOT PERMISSIBLE U/S. 254(2). IN THIS VIEW OF THE MATTER, THE AFORESAID PLEA OF THE ASSESSEE IS DISMISSED. 6. WE SHALL NOW TURN TO TH E SECOND ASPECT, I.E. , NON - CONSIDERATION OF DECISION OF THE HONBLE SUPREME COURT AND J URISDICTIONAL HIGH COURT. THE GRIEVANCE OF THE 5 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 ASSESSEE IN THIS BEHALF IS CONTAINED IN PARA 3 AND 4 OF THE MA, WHICH READS AS UNDER: 3. NON - CONSIDERATION OF DECISION O F HON BLE SUPREME COURT & JURISDIC T I ONAL HIGH COURT: 3.1 THE APPELLANT HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF BHARAT ENGINEERING AND CONSTRUCTION CO. (1972) 83 ITR 183, WHEREIN IT WAS HELD THAT THE ASSESSEE - COMPANY IS AN ENGINEERING CONSTRUCTION COMPANY. IT COMMENCED BUSINESS IN MAY, 1943. IN THEIR ACCOUNT BOOKS, THERE ARE SEVERAL CASH CREDIT ENTRIES IN THE FIRST YEAR OF ITS BUSINESS. WE ARE CONCERNED WITH ONLY FIVE OF THOSE CASH CREDIT ENTRIES. ON JUNE 1, 1943, THERE IS A CASH CREDIT ENTRY OF RS.1,00,000. ON JULY 6, 1943, THERE IS A CASH CREDIT ENTRY OF RS.50,000. ON AUGUST 30, 1943, THERE IS A CASH CREDIT ENTRY OF RS.15,000 AND ON MARCH 15, 1944, THERE IS A CASH CREDIT ENTRY OF RS.35,000. THESE CASH CREDIT ENTRIES TOTAL U P TO RS.2,50,000. THE INCOME - TAX OFFICER CALLED UPON THE ASSESSEE TO EXPLAIN THOSE CASH CREDIT ENTRIES. THE EXPLANATION GIVEN BY THE ASSESSEE WAS FOUND TO BE FALSE BY THE INCOME - TAX OFFICER, THE APPELLATE ASSISTANT COMMISSIONER AND THE TRIBUNAL. BUT, ALL T HE SAME, THE TRIBUNAL FELT THAT THESE CASH CREDIT ENTRIES COULD NOT REPRESENT THE INCOME OR PROFITS OF THE ASSESSEE - COMPANY AS THEY WERE ALL MADE VERY SOON AFTER THE COMPANY COMMENCED ITS ACTIVITIES. IN OUR OPINION, THOUGH THE ORDER OF THE TRIBUNAL IS NOT HAPPILY WORDED, ITS FINDING APPEARS TO BE THAT IN THE VERY NATURE OF THINGS THE ASSESSEE COULD NOT HAVE EARNED SUCH A HUGE AMOUNT AS PROFITS VERY SOON AFTER IT COMMENCED ITS ACTIVITIES. A CONSTRUCTION COMPANY TAKES TIME TO EARN PROFITS. IT COULD NOT HAVE E ARNED A PROFIT OF RS.1,00,000 WITHIN A FEW DAYS, AFTER THE COMMENCEMENT OF ITS BUSINESS. HENCE, IT IS REASONABLE TO ASSUME THAT THOSE CASH CREDIT ENTRIES ARE CAPITAL RECEIPTS THOUGH FOR ONE REASON OR OTHER THE ASSESSEE HAD NOT COME OUT WITH THE TRUE STORY AS REGARDS THE PERSON FROM WHOM IT GOT THOSE AMOUNTS. 6 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 THE FACTS OF THE APPELLANT ARE EX ACTLY RESEMBLES THOSE WITH THE FACTS OF BHARAT ENGG (SUPRA). SINCE, IN THE CASE OF THE APPELLANT - ( A ) NO MANUFACTURING ACTIVITIES COMMENCED DURING THE YEAR. ( B ) POWER CONNECT ION WAS OBTAINED ON IN THE MONTH OF FEBRUARY (I.E. THE LAST BUT SECOND). ( C ) THE COST OF CONSTRUCTION WAS INCURRED PRIOR TO THE POWER CONNECTION OBTAINED. HENCE, THE CONTENTION OF THE LD. CIT(A) THAT BUSINESS HAS STARTED THIS YEAR HAS NO RELEVANCE AT ALL. ( D ) THIS WAS THE MAIDEN COMMERCIAL ACTIVITY/PROJECT OF THE APPELLANT. ( E ) ONLY FEW SAMPLES HAVE BEEN SOLD AMOUNTING TO RS.12400/ - ONLY. IN THESE SCENARIOS, IT WOULD BE QUITE ABSURD TO HOLD THAT AN APPELLANT WITH NO BUSINESS ACTIVITIES CAN EARN SUCH A HUGE UNACCOUNTE D INCOME AT ALL. THE RATIO OF THE DECISION OF HONBLE SUPREME COURT ALSO HOLDS SO. HENCE, THE SAME IS SQUARELY APPLICABLE TO THE FACTS AND MERITS OF THE CASE OF THE APPELLANT. HOWEVER, THE SAID DECISION HAS NOT BEEN CONSIDERED AND DEALT - WITH BY THE HONBL E BENCH AT THE TIME OF PASSING THE ORDER. NON - CONSIDERATION OF THE DECISION OF HONBLE SUPREME COURT, WHICH HAS BEEN RELIED UPON BY THE APPELLANT, AMOUNTS TO MISTAKE APPARENT FROM RECORDS AND CONSEQUENTLY THE APPELLATE ORDERS SUFFERS ERROR TO THAT EXTENT. SINCE, NON - CONSIDERATION OF RELEVANT DECISION AMOUNTS TO MISTAKE APPARENT FROM RECORDS, THE APPELLANT MOST RESPECTFULLY URGES HONBLE BENCH TO RECALL THE ORDER TO RENDER JUSTICE. 4. THE APPELLANT ALSO RELIES ON THE FOLLOWING DECISIONS: (A) CIT V. MITHALA L ASHOKKUMAR 158 ITR 755 (MP ) (B) MOTILAL OSWAL V. ADDITIONAL CIT (2006) 8 SOT 771 (MUM - TRIB) (C) ACIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD 305 ITR 227 (SC). 7. THE CITATION OF THE JUDGMENT IN CIT V. BHARAT ENGINEERING AND CONSTRUCTION CO MPANY AS GIVEN BY THE ASSESSEE IS INCORRECT. CORRECT CITATION IS CIT V. BHARAT 7 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 ENGINEERING AND CONSTRU CTION COMPANY, 83 ITR 187 AND NOT 83 ITR 183 AS GIVEN BY THE ASSESSEE . ACCORDING TO THE ASSESSEE, THE FACTS IN ITS OWN CASE AR E IDENTICAL WITH THOSE IN BHARAT ENGINEERI NG (SUPRA) AND THEREFORE IT W OULD BE QUITE ABSURD TO HOLD THAT AN APPELLANT WITH NO BUSINESS ACTIVITIES CAN EARN SUCH A HUGE UNACCOUNTED INCOME AT ALL . THE AFORESAID JUDGMENT WAS RENDERED BY THE HONBLE SUPREME COURT IN THE CONTEXT OF THE INDIAN INCOME - T AX ACT OF 1922 IN WHICH THERE WAS NO PROVISION CORRESPONDING TO SECTIONS 69/69A/69B OF THE INCOME - TAX ACT 1961. ACCORDING TO THOSE PROVISIONS IN THE INCOME - TAX ACT OF 1961 , INVESTMENTS NOT RECORDED OR UNDER - RECORDED IN THE BOOKS ARE DEEMED TO BE THE INCOME OF THE ASSESSEE IF THE ASSESSEE FAILS TO SATISFACTORILY EXPLAIN THE NATURE AND SOURCE OF SUCH INVESTMENTS. HERE IS A CASE WHERE THE ASSESSEE HAS BEEN FOUND TO HAVE UNDER - STATED THE INVESTMENTS IN CONSTRUCTION AND THEREFORE ITS CASE WOULD FALL UNDER THE AF ORESAID PROVISIONS OF THE INCOME - TAX ACT OF 1961. AND TO THAT EXTENT IT WOULD BE DEEMED TO BE ITS INCOME. SECONDLY , THE FACTUAL MATRIX OF THE CASE IN BHARAT ENGINEERING (SUPRA) IS DIFFERENT FROM THE ONE IN THE PRESENT CASE. IN THE PRESENT CASE, ADDITION HA S BEEN MADE AS THE ASSESSEE HAS BEEN FOUND TO HAVE UNDER - STATED INVESTMENTS IN CONSTRUCTION IN ITS BOOKS WHICH WAS NOT THE CASE IN BHARAT ENGINEERING (SUPRA). THIRDLY, DETERMINATION OF COST OF CONSTRUCTION IS ESSENTIALLY A QUESTION OF FACT AND THEREFORE TH E SAID JUDGMENT HAS NO APPLICABILITY TO THE PRESENT CASE . FOURTHLY, THE SAID JUDGMENT, AS EVIDENT FROM THE PENULTIMATE PARAGRAPH OF THE JUDGMENT, HAS BEEN RENDERED ON THE BASIS OF FINDING OF FACTS RECORDED BY THE TRIBUNAL AND THEREFORE WOULD NOT OPERATE AS JUDGMENT IN REM BUT AS JUDGMENT IN PERSONAM. FIFTHLY, O N THE FACTS OF THE PRESENT CASE, A CONSCIOUS DECISION HAS BEEN TAKEN BY THIS TRIBUNAL TO QUANTIFY THE UNDERSTATEMENT IN T HE COST OF CONSTRUCTION AT RS. 22 ,70,370 AND THEREFORE IS NOT AMENABLE TO RECTI FICATION U/S 254(2) . SIXTHLY, T HE DECISIONS CITED BY THE ASSESSEE WERE NOT ONLY DULY CONSIDERED BUT ALSO TAKEN NOTE OF IN PARA 8 OF THE ORDER PASSED BY THIS TRIBUNAL. IN THIS VIEW OF THE MATTER , THE M ISCELLANEOUS A PPLICATION FILED ON THIS GROUND IS ALSO DI SMISSED. 8 . IN THIS CONNECTION, REFERENCE MAY FRUITFULLY BE MADE TO TWO JUDGMENTS. FIRST ONE IS THE JUDGMENT DELIVERED BY THE HONBLE BOM B AY HIGH COURT IN CIT V. RAMESH LECTRIC AND TRADING CO. , 203 ITR 497 (BOM) IN WHICH IT HAS BEEN HELD THAT FAILURE OF 8 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 THE TRIBUNAL TO CONSIDER 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. IT HAS BEEN FURTHER HELD THAT THE TRIBUNAL CANNOT, IN THE EXERC I SE OF ITS POWER OF R ECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES, WHICH WOULD SUPPORT OR WOULD NOT SUPPORT ITS CONCLUSION. NEXT JUD G M ENT IS OF THE HONBLE JURISDICTION AL H IGH COURT IN VP MINOCHA, ITO V. ITAT , 106 ITR 691 (GUJ) IN WHICH THE HONBLE HIGH COURT, RELYING UPON THE JUD G M E NT IN BALARAMS CASE , 82 ITR 50 (SC) , HAS HELD THAT THE DECISION GIVEN BY THE TRIBUNAL ON A DEBATABLE POINT OF LAW CANNOT BE SUBSEQUENTLY CONSIDERED AS SHOWING ANY MISTAKE APPARENT FORM THE RECORD WHICH THE TRIBU NA L COULD CONSEQUENTLY RECTIFY. 9 . SECTION 254(2) CONFERS JURISDICTION UPON THIS TRIBUNAL TO RECTIFY ITS ORDER IF IT IS SHOWN TO SUFFER FROM A MISTAKE APPARENT FROM THE RECORD. ISSUE AS TO A PPARENCY OF MISTAKE ON THE FACE OF RECORD IS ESSENTIALLY A QUESTION OF FACT. ON CAREFUL PERUSAL O F THE ENTIRE MATERIAL ON RECORD, WE ARE CONVINCED THAT THE MISTAKES POINTED OUT BY THE APPLICANT - ASSESSEE ARE NOT OF SUCH NATURE AS TO WARRANT RECTIFICATION U/S 254(2) . THE CONCLUSIONS DRAWN BY THIS TRIBUNAL IN ITS ORDER AGAINST WHICH THE PRESENT MA HAS BE EN FILED ARE BASED ON APPRAISAL OF MATERIALS AVAILABLE ON RECORD INCLUDING THE SUBMISSIONS MADE BY THE PARTIES AND THE CONCURRENT FINDINGS RECORDED BY TWO AUTHORITIES BELOW, NAMELY, THE AO AND THE C IT (A). CONSCIOUS VIEW TAKEN BY THIS TRIBUNAL TO ENDORSE TH EIR FINDINGS IS CLEARLY OUTSIDE THE SCOPE OF SECTION 254(2). 10 . IN VIEW OF THE FOREGOING, THE M ISCELLANEOUS A PPLICATION FILED BY THE ASSESSEE IS DISMISSED. I 30 . 0 5 .201 3 I ORDER PRONOUNCED ON 30 . 0 5 . 201 3 SD/ - SD/ - ( 0 . . R / T. K. SHARMA) ( . . / D. K. SRIVASTAVA) SH / JUDICIAL MEMBER / ACCOUNTANT MEMBER /RAJKOT : 30 . 0 5 . 2013 BT 9 M A 33 /RJT/2012 IN ITA NO.675/RJT/10 3 JO O / COPY OF ORDER FORWARDED TO: - 1 . P / APP ELLANT - M/S. SAROJ CERAMIC INDUSTRIES, PANCHASAR, WANKANER 2 P /RESPONDENT - ITO, WARD - 1(2), RAJKOT 3 . Y V / CONCERNED CIT - I, RAJKOT 4 . V - / CIT (A ) - I , RAJKOT 5 . HHY , 0 Y , / DR, ITAT , RAJKOT 6 . R / GUARD FILE / BY ORDER TRUE COPY SENIOR PRIVATE SECRETARY, ITAT, RAJKOT