K IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI .. , ; BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIVEK VARMA, J M 390/ MUM/2012 ARISING OUT OF ITA NO. 407/MUM/2008 ( / ASSESSMENT YEAR : 1999-2000) SHRI KHETSHI BAROT, LEGAL HEIR OF LATE DEVRAJ K. BAROT, 1902/2002 PANCHSHEEL HEIGHTS, C WING, KANDIVALI (W), MUMBAI -400 067. / VS. ITO 25 (3) (2), C-11, R. NO. 306, PRATYAKSH KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI 51. . / PAN : AACPB5706E ( ' / APPELLANT ) .. ( ()' / RESPONDENT ) ' * / APPLICANT BY : SHRI SHASHI TULSIYAN ()' * / RESPONDENT BY : SHRI SURENDRA KUMAR H * / / DATE OF HEARING : 10-01-2014 * / / DATE OF PRONOUNCEMENT : 22-1-2014 / O R D E R PER P.M. JAGTAP, A.M . : BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 9-7-2010 PASSED IN ITA NO. 407/MUM/2008. 2. WHILE SUPPORTING THIS MISC APPLICATION FILED BY THE ASSESSEE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION OF RS. 17, 30,000/- MADE TO THE TOTAL INCOME OF THE ASSESSEE ON THE BASIS OF LOOSE SHEETS FOUND DUR ING THE COURSE OF SEARCH WAS CONFIRMED BY THE TRIBUNAL VIDE ITS ORDER DATED 9-7- 2010 (SUPRA) DISREGARDING THE CONTENTION RAISED BY THE ASSESSEE THAT THE SAID LOO SE SHEETS CONSTITUTED DUMP DOCUMENTS AND THAT THERE WERE NO VALUABLES OR ASSETS FOUND DU RING THE COURSE OF SEARCH TO JUSTIFY MA 390/MUM/2012 2 THE ADDITION OF RS. 17,30,000/-. HE INVITED OUR ATT ENTION TO THE RELEVANT OBSERVATIONS OF THE TRIBUNAL RECORDED IN PARA 5 OF ITS ORDER TO SHOW THAT THE ADDITION MADE ON THE BASIS OF RELEVANT SEIZED DOCUMENTS WAS CONFIRMED BY THE TRIBUNAL ON THE GROUND THAT THE SAID DOCUMENTS WERE WRITTEN BY THE ASSESSEE LATE SHRI DEVRAJ BAROT AND THAT THEY RELATED TO THE TRANSACTIONS ENTERED INTO BY HIM. HE SUBMITTED THAT THE TRANSACTIONS NOTED IN THE SEIZED DOCUMENTS WERE EXE CUTED ON 6-10-1998 AND WERE RECORDED AS SUCH WHEREAS SHRI DEVRAJ BAROT WAS NOT ALIVE ON THE SAID DATE I.E. 6-10-1998. HE SUBMITTED THAT ALTHOUGH THE FACT OF D EATH OF SHRI DEVRAJ BAROT ON 3-11-1998 WAS NOT SPECIFICALLY BROUGHT TO THE NOTIC E OF THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL, THE RELEVANT DOCUMENTS EVIDE NCING THE DEATH OF SHRI DEVRAJ BAROT WERE ALREADY FILED BEFORE THE A.O. HE SUBMITTED TH AT THE LD. CIT(A) HAS ALREADY TAKEN A JUDICIAL NOTE OF THIS FACT WHILE CANCELLING THE PEN ALTY IMPOSED BY THE A.O. IN RESPECT OF ADDITION MADE ON THE BASIS OF THE RELEVANT SEIZED D OCUMENTS VIDE APPELLATE ORDER DATED 5-1-2011 AND THE TRIBUNAL HAS ALSO UPHELD THE SAID ORDER OF THE LD. CIT(A) VIDE ITS ORDER DATED 2-5-2012. HE CONTENDED THAT EVEN THOUGH THE FACT OF DEATH OF SHRI DEVRAJ BAROT WAS NOT SPECIFICALLY BROUGHT TO THE NOTICE OF THE T RIBUNAL AT THE TIME OF HEARING OF THE APPEAL, THE TRIBUNAL WAS DUTY BOUND TO TAKE INTO CO NSIDERATION THE SAID FACTS ALREADY BROUGHT ON RECORD WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE. IN SUPPORT OF THIS CONTENTION, HE RELIED ON THE DECISION OF HONBLE KE RALA HIGH COURT IN THE CASE OF KERALA CHEMICALS AND PROTEINS LTD. VS. CIT REPORTED IN 235 ITR 467. HE CONTENDED THAT THERE IS THUS A MISTAKE IN THE ORDER OF THE TRIBUNAL IN N OT TAKING INTO CONSIDERATION THE MATERIAL FACT OF DEATH OF SHRI DEVRAJ BAROT AND THE SAME BEING APPARENT FROM RECORD, IS REQUIRED TO BE RECTIFIED U/S 254(2) OF THE INCOME T AX ACT, 1961. 3. THE LD. D.R., ON THE OTHER HAND, STRONGLY OPPOSE D THIS MISC APPLICATION FILED BY THE ASSESSEE STATING THAT THERE IS NO MISTAKE APPAR ENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 9-7-2010 (SUPRA) AS ALLEGED ON BEHAL F OF THE ASSESSEE. HE SUBMITTED THAT WHEN THE FACT OF DEATH OF SHRI DEVRAJ BAROT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL, IT C ANNOT BE SAID THAT THE NON- CONSIDERATION OF SUCH FACT BY THE TRIBUNAL GIVES RI SE TO A MISTAKE IN THE ORDER OF THE TRIBUNAL. AS REGARDS THE JUDICIAL NOTE TAKEN BY TH E LD. CIT(A) AS WELL AS BY THE TRIBUNAL OF THIS FACT DURING THE COURSE OF PENALTY PROCEEDING, HE CONTENDED THAT THE MA 390/MUM/2012 3 PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT FROM THE ASSESSMENT PROCEEDINGS AND ON THE BASIS OF FINDING RECORDED IN SUCH PROCEEDING , NO MISTAKE CAN BE ATTRIBUTED TO THE ORDER PASSED EARLIER DURING THE COURSE OF QUANTUM P ROCEEDING ESPECIALLY WHEN THE SAID FACT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. IN OUR OPINION, WHEN A PARTICULAR FACT IS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL, IT CANNOT BE SAID THAT THE NON- CONSIDERATION OF SUCH FACT , HOWSOEVER IT IS MATERI AL OR RELEVANT, CAN BE SAID TO HAVE GIVEN RISE TO A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. AS RIGHTLY CONTENDED BY THE LD. D.R., IF SUCH FACT WAS SPECIFI CALLY BROUGHT TO THE NOTICE OF THE LD. CIT(A) AS WELL AS OF THE TRIBUNAL DURING THE COURSE OF PENALTY PROCEEDINGS AND AFTER TAKING THE SAME INTO CONSIDERATION, THE ISSUE HAS B EEN DECIDED IN FAVOUR OF THE ASSESSEE BY CANCELLING THE PENALTY, THE SAME CANNOT BE THE B ASIS TO ATTRIBUTE A MISTAKE IN THE ORDER OF THE TRIBUNAL PASSED IN QUANTUM PROCEEDING OF NON-CONSIDERATION OF THAT FACT WHICH WAS NOT AT ALL BROUGHT TO THE NOTICE OF THE T RIBUNAL. IT IS WELL SETTLED THAT THE PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT PROCE EDINGS INASMUCH AS THE FACTS AND MATERIAL ON RECORD CAN BE RE-APPRECIATED AND EVEN T HE ASSESSEE GETS AN OPPORTUNITY TO BRING ON RECORD NEW MATERIAL AND FACTS IN SUPPORT O F ITS CASE THAT EVEN IF THE ADDITION WAS SUSTAINED IN THE QUANTUM PROCEEDINGS, THERE IS NO CASE FOR IMPOSITION OF PENALTY. THE SCOPE OF RECTIFICATION OF MISTAKES U/S 254(2) O F THE ACT, HOWEVER, IS LIMITED WHEREIN RE-APPRECIATION OR RE-CONSIDERATION OF FACTS OR MAT ERIAL ON RECORD IS NOT PERMISSIBLE OR THE GROUND AMOUNT TO REVIEW. IT IS ALSO PERTINENT T O NOTE HERE THAT THE RELEVANT DOCUMENTS EVIDENCING THE DEATH OF SHRI DEVRAJ BAROT ON 3-11-1998 ARE STATED TO BE FILED BY THE ASSESSEE BEFORE THE A.O. AND NOT BEFORE THE TRIBUNAL. IN ANY CASE, IT WAS THE DUTY OF THE ASSESSEE TO POINT OUT THE FACT OF DEATH OF S HRI DEVRAJ BAROT ON 3-11-1998 AT THE TIME OF HEARING BEFORE THE TRIBUNAL ON THE BASIS OF MATERIAL, IF ANY, FILED BEFORE THE TRIBUNAL AND HAVING ADMITTEDLY NOT DONE SO, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL I N NON-CONSIDERATION OF THE SAID FACT. IN THE CASE OF KERALA CHEMICALS AND PROTEINS LTD.(S UPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE, THE RELEVANT PROVISION OF THE STATUTE WAS IGNORED BY THE TRIBUNAL AND IT WAS HELD BY THE HONBLE KERALA HIGH COURT THAT IT WAS T HE DUTY OF THE TRIBUNAL TO CONSIDER MA 390/MUM/2012 4 THE LAW AS IT EXISTED AT THE RELEVANT TIME EVEN THO UGH THE ASSESSEE HAD FAILED TO BRING IT TO ITS NOTICE. THE FACTS INVOLVED IN THE PRESENT C ASE, HOWEVER, ARE DIFFERENT INASMUCH AS THE FACT OF DEATH OF SHRI DEVRAJ BAROT ON 3-11-1998 WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL BY PLACING THE RELEVANT DOCUMENTS ON RECOR D AND NON-CONSIDERATION OF THE SAID FACT WHICH WAS NOT BROUGHT TO THE NOTICE OF THE TRI BUNAL, IN OUR OPINION, CANNOT BE SAID TO HAVE GIVEN RISE TO ANY MISTAKE APPARENT FROM REC ORD IN THE ORDER OF THE TRIBUNAL. WE, THEREFORE, FIND NO MERIT IN THIS MISC. APPLICATION FILED BY THE ASSESSEE AND DISMISS THE SAME. 5. IN THE RESULT, THE MISC. APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22-1-2014. . * 5 6 229192014 * SD/- AS/- (VIVEK VARMA) ( P.M. JAGTAP ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 6 DATED 22-1-2014 .../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. ()' / THE RESPONDENT. 3. C () / THE CIT(A)- I, BANGALORE 4. C / CIT 1, BANGALORE 5. (G , / G , / DR, ITAT, MUMBAI D BENCH 6. / GUARD FILE. / BY ORDER, ) ( //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI