Smt. Kalawati Aggarwal, New Delhi V. DCIT, New Delhi

MA 401/DEL/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5229 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-10-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 10-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KISHORE B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI BEFORE SHRI I.P.BANSAL, JM AND SHRI R.C.SHARMA, AM MISCELLANEOUS APPLICATION NO.401/DEL/2010 (IN ITA NO.1069/DEL/2010) ASSESSMENT YEAR : 2003-04 SMT.KALAWATI AGARWAL, F-170B, WESTERN AVENUE, SAINIK FARMS, NEW DELHI. PAN NO.AAHPA4204B. VS. DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-25, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJESH MAHNA, ADVOCATE. RESPONDENT BY : SHRI KISHORE B., SR.DR. ORDER PER R.C.SHARMA, AM : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE TO RECTIFY A MISTAKE ALLEGED TO BE COMMITTED IN THE OR DER OF THE TRIBUNAL DATED 25.6.2010 IN ITA NO.1069/DEL/2010. 2. THROUGH THIS PETITION, IT WAS SUBMITTED BY THE A SSESSEE THAT ORDER OF THE TRIBUNAL SHOULD BE MODIFIED SUITABLY I N TERMS OF THE PRAYER MADE IN ITS LETTER DATED 10.8.2010. 3. WE HAVE GONE THROUGH THE PETITION AND THE ORDER OF THE TRIBUNAL DATED 25.6.2010 AND FOUND THAT IN THE APPE AL FILED BY THE REVENUE, ADDITION OF `39.84 LAKHS MADE WITH RES PECT TO SALE OF SHARES WHICH WAS TREATED AS UNDISCLOSED INCOME B Y THE AO, HAS BEEN ELABORATELY DEALT WITH BY THE TRIBUNAL IN ITS ORDER AND AFTER CONSIDERING THE ENTIRE ARGUMENTS OF THE LEARN ED DR, FOLLOWING CONCLUSION WAS ARRIVED AT:- MA-401/DEL/2010 2 WE HAVE CONSIDERED THE CONTENTION OF THE LEARNED D R AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. WE FOUND THAT AFTER SEARCH AT ASSESSEES PREMISES, THE AO EXAMINED THE ASSESSEE AND THE LONG TERM CAPITAL GAIN SHOWN BY HER ON ACCOUNT OF SALE OF SHARES OF M /S B.T.TECHNET LTD. WAS QUESTIONED. THE STATEMENTS OF VARIOUS PERSONS WERE RECORDED INCLUDING THE DIRECTO RS OF M/S DIWAKAR SECURITIES LTD., WHO HAVE DENIED THE TRANSACTION HAVING BEEN ENTERED WITH THE ASSESSEE F OR SALE OF SHARES. THE AO HAS RECORDED A FINDING TO T HE EFFECT THAT THE ASSESSEE DID NOT OWN THESE SHARES O N 31.3.2001 AS PER DETAILS OF INVESTMENT IN SHARES AN D DEBENTURES AS ON 31.3.2001 AS PER PAGE 11 OF ANNEXURE A-5 OF PANCHNAMA DRAWN AT THE RESIDENCE OF THE ASSESSEE AT THE TIME OF SEARCH ON 4.11.2004. B Y CONSIDERING THE STATEMENT OF DIRECTOR OF M/S DIWAKA R SECURITIES LTD. THE AO REACHED TO THE CONCLUSION TH AT SINCE THE SHARES WERE NOT HELD BY THE ASSESSEE AS O N 31.3.2001, THERE DID NOT ARISE ANY OCCASION FOR ITS SALE TO M/S DIWAKAR SECURITIES LTD. ON 2.8.2002. THE ASSESSEE ASKED FOR THE CROSS EXAMINATION OF THE STATEMENTS OF DIRECTORS OF M/S DIWAKAR SECURITIES L TD., WHICH ALSO CONSTITUTED SUBSTANTIAL EVIDENCE BEFORE THE AO FOR REACHING TO THE CONCLUSION THAT IT WAS A BOG US TRANSACTION AND THE ASSESSEE HAD NOT SOLD ANY SHARE S. HOWEVER, THE AO HAS DECLINED THE CROSS EXAMINATION BY STATING THAT THE CLAIM OF THE ASSESSEE WAS PUT T O THE VERIFICATION, THEREFORE, IT CANNOT BE SAID THAT THE PERSONS INCLUDING THE DIRECTORS OF M/S DIWAKAR SECURITIES LTD., WHOSE STATEMENTS WERE RECORDED BY THE DEPARTMENT ARE THE WITNESSES OF THE DEPARTMENT. HOWEVER, THE CIT(A) HAS JUST ACCEPTED THE ASSESSEE S CONTENTION WITHOUT CONTROVERTING THE DETAILED FINDI NGS RECORDED BY THE AO VIS-A-VIS THE STATEMENTS OF PERSONS INCLUDING DIRECTORS OF M/S DIWAKAR SECURITI ES LTD. THE CIT(A) HAS HELD THAT THE AO IS BOUND TO A LLOW CROSS EXAMINATION OF THE SAID WITNESSES AND IN THE ABSENCE OF SAME, THE SAID STATEMENTS CANNOT BE RELI ED UPON, ACCORDINGLY ADDITION WAS HELD TO BE NOT JUSTI FIED. THERE IS NO DISPUTE TO THE WELL SETTLED LEGAL PROPO SITION THAT POWERS OF THE CIT(A) IS CO-TERMINUS WITH THAT OF THE AO, WHAT THE AO HAS FAILED TO DO THE CIT(A) IS COMPETENT TO DO THE SAME AND HE CANNOT BRUSH ASIDE MA-401/DEL/2010 3 THE FINDINGS RECORDED BY THE AO AND THE STATEMENTS OF VARIOUS PERSONS RECORDED BY DEPARTMENT JUST BY STATING THAT CROSS EXAMINATION WAS NOT ALLOWED TO T HE ASSESSEE. IN ALL FAIRNESS THE CIT(A) SHOULD HAVE ALLOWED THE CROSS EXAMINATION BEFORE DELETING THE ADDITION MADE BY THE AO, AND SHOULD HAVE CONTROVERTED THE FINDINGS RECORDED BY AO BY MENTIONING HIS OBSERVATION AND COMMENTS THEREOF. THE CIT(A) HAS ALSO NOT GIVEN ANY POSITIVE FINDING WITH REGARD TO HOLDING OF SHARES BY ASSESSEE ON THE DATE OF SALE. IN ALL FAIRNESS AND IN THE INTEREST OF JUSTI CE, WE RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE A O AND THE AO IS DIRECTED TO ALLOW CROSS EXAMINATION OF TH E WITNESSES BY THE ASSESSEE AND TO DECIDE THE ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE . WE DIRECT ACCORDINGLY. 4. IN THE PETITION SO FILED BY THE ASSESSEE, NOTHIN G WAS POINTED OUT SO AS TO ALLEGE THAT THERE IS ANY MISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL SO AS TO BRING THE SAME WITHIN THE PURVIEW OF SECTION 254(2). WHATEVE R IS ASKED BY THE ASSESSEE IS TO REVIEW THE ORDER, WHICH IS NOT P ERMISSIBLE U/S 254(2). UNDER SECTION 254(2), ONLY A MISTAKE APPAR ENT IN THE ORDER CAN BE RECTIFIED AND NOT A MISTAKE WHICH REQU IRES DETAILED REASONING, INVESTIGATION ETC. SINCE NO APPARENT MI STAKE WAS POINTED OUT IN THE ORDER OF THE TRIBUNAL, THE SAME IS NOT EMANABLE U/S 254(2). 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 15 TH OCTOBER, 2010. SD/- SD/- (I.P.BANSAL) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MA-401/DEL/2010 4 DATED : 15.10.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR