M/s. Naroli Developers, V. The Income tax Officer,Ward-2, Vapi

MA 48/AHD/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0154 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-12-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 21-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: J P SHAH
• Keywords: Search and seizure; Document seized; Retraction; Documents seized

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , .!' # , $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.48/AHD/2011 ( IN ./ I.T.A. NO.3250/AHD/2008) ( ' ' (' / ASSESSMENT YEAR : 2005-06) M/S.NAROLI DEVELOPERS C/O.DESCON 8-A, LAXMI INDUSTRIAL ESTATE NEW LINK ROAD ANDHERI (W) MUMBAI 400 053 ' / VS. THE INCOME TAX OFFICER WARD-2 VAPI SHIVAM COMPLEX N.H.NO.8 GIDC VAPI ./ ./ PAN/GIR NO. : AAFFN 8399 C ( / APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI J.P.SHAH, A.R. / RESPONDENT BY : SHRI D.K.SINGH, SR.D.R. ! ' / DATE OF HEARING : 03/05/2013 #$%& ! / DATE OF PRONOUNCEMENT : 10/5/13 '( / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THE APPLICANT HAS MOVED A MISCELLANEOUS PETITION R UNNING INTO 9 PAGES IN RESPECT OF A TRIBUNAL ORDER DATED 30.12.2 010 AND THE SUBMISSIONS ARE REPRODUCED BELOW: MAY IT PLEASE THE HON. MEMBERS OF THE INCOME-TAX APPELLATE TRIBUNAL:- MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 2 - (1) THIS MISCELLANEOUS APPLICATION IS MADE IN RESPE CT OF THE ORDER OF THE HON. TRIBUNAL DATED 30.12.2010. THE HON. TRIBUNAL HAS CONFIRMED T HE ADDITION MADE BY THE ASSESSING OFFICER OF RS.15,00,000/- AND CONFIRMED BY THE LEAR NED COMMISSIONER OF INCOME-TAX (APPEALS). (2) IN ARRIVING AT THIS DECISION, THE HON. TR IBUNAL HAS PARTIALLY RELIED ON THE STATEMENT RECORDED AT THE TIME OF SURVEY WHICH WAS RETRACTED. IN DOING SO, THE HON. TRIBUNAL HAS TAKEN THE VIEW THAT APART FROM THE RET RACTION BEING DELAYED, IT WAS MADE BY COPY OF AFFIDAVIT FILED IN ANOTHER CASE. (3) IN TAKING THIS VIEW, THE HON. TRIBUNAL HAS NOT TAKE N INTO CONSIDERATION OR DEALT WITH FULLY THE THREE MAIN CONTENTIONS TAKEN BY THE ASSESSEE BOTH IN THE ORAL AND WRITTEN SUBMISSIONS. (A) NO EVIDENTIARY VALUE. (B) HAVING BEEN TAKEN IN VIOLATION OF INSTRUCTION DATED 10.03.2003 BY CENTRAL BOARD OF DIRECT TAXES HAS TO BE DISCARDED. (C) IT BEEN TAKEN UNDER COERCION AS THE ASSESSEE W AS HOSPITALIZED. (4) AFTER MENTIONING THE JUDGEMENTS, AS PART OF ARG UMENTS OF THE ASSESSEE'S REPRESENTATIVE, OF KERALA HIGH COURT IN 263-ITR-101 , MADRAS HIGH COURT IN 300- ITR-157, CHHATISGRAH HIGH COURT IN 327-ITR-497 AND ORDER OF INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH IN 6-ITR(TRIB.)-37, THE HON. TRIBUNAL HAS NOT AT ALL POINTED OUT AS TO HOW THESE DECISIONS WHICH HAVE CLEARLY HE LD THAT THE STATEMENT TAKEN DURING THE SURVEY OPERATIONS HAS NO EVIDENTIARY VALUE ARE DISTINGUISHABLE OR WHY THEY WERE NOT APPLICABLE. IN THE WRITTEN SUBMISSION THE ASSES SEE HAD ALSO REFERRED TO THE JUDGEMENT OF MUMBAI TRIBUNAL IN CASE OF PREMSONS [1 30-ITR-159]. THIS HAS NOT BEEN CONSIDERED. IT IS RESPECTFULLY SUBMITTED THAT NOT DEALING WITH OR CONSIDERING THE JUDGEMENTS PLACED BEFORE THE HON. TRIBUNAL AMOUNTS TO A MISTAKE OF LAW APPARENT FROM RECORD. (5) KIND ATTENTION OF THE HON. TRIBUNAL WAS ALSO DR AWN TO INSTRUCTION DATED 10.03.2003 BY CENTRAL BOARD OF DIRECT TAXES WHICH C LEARLY LAID DOWN THAT NO DISCLOSURE SHOULD BE OBTAINED IN SURVEY OR SEARCH P ROCEEDINGS. IT WAS ALSO POINTED OUT THAT THE ABOVE INSTRUCTION WAS IN CULMINATION O F PROCESS STARTED BY THE TASK FORCE COMMITTEE RECOMMENDATION TO THE GOVERNMENT. FURTHER THIS INSTRUCTION IS CONSIDERED RELEVANT WHEN IT WAS POINTED OUT THAT MADRAS HIGH C OURT IN 300-ITR-157 HAD REFERRED TO IT AND MUMBAI TRIBUNAL IN CASE OF 130-T TJ-159 HAD ALSO POINTED IT OUT TO DISREGARD STATEMENT TAKEN U/S.133A. IN VIEW OF CLEA R CUT DIRECTION BY CENTRAL BOARD OF DIRECT TAXES NOT TO OBTAIN CONFESSION AS TO THE UNDISCLOSED INCOME IN THE COURSE OF SEARCH, SEIZURE AND SURVEY, SUCH CONFESSION SHOULD HAVE BEEN IGNORED AS IT WAS IN VIOLATION OF THE SPECIFIC INSTRUCTION OF CBDT AND M ORE PARTICULARLY WHEN AS MENTIONED EARLIER THE MADRAS HIGH COURT AND MUMBAI TRIBUNAL HAVE TAKEN NOTE THEREOF FOR ALLOWING THE APPEAL OF THE ASSESSEE. MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 3 - IT IS RESPECTFULLY SUBMITTED THAT IGNORING AN IMPAC T OF SUCH INSTRUCTION WHICH HAS BEEN JUDICIALLY CONSIDERED AMOUNTS TO SERIOUS M ISTAKE OF LAW. (6) (I) THE HON. TRIBUNAL HAS MENTIONED THAT THERE IS NO EVIDENCE OF COERCION. THE FACT THAT THE ASSESSEE HAD TO BE HOSPITALISED I N THE COURSE OF RECORDING OF HIS STATEMENT AND THAT THE MOMENT HE WAS OUT OF THE HOSPITAL HIS STATEMENT WAS IMMEDIATELY STARTED IS EVIDENCE OF COERCION. (II) IT IS RESPECTFULLY SUBMITTED THAT IN C OMING TO THE CONCLUSION THAT NO COERCION WAS EXERCISED, THE HON. TRIBUNAL COMMITTED THIS MISTAKE INSPITE OF THE ABOVE FACTS BEING POINTED OUT. (III) KIND ATTENTION OF THE HON. TRIBUNAL WAS ALSO DRAWN TO THE FOLLOWING IN THE COURSE OF WRITTEN SUBMISSIONS MADE THEREIN AND REFERENCE TO THE JUDGEMENTS OF GUJARAT HIGH COURT, AHMEDABAD TRIBUNA L AND MUMBAI TRIBUNAL. (IV) APART FROM THE ABOVE FACTORS, WHEN A DISCLOSUR E IS TAKEN UNDER COERCION, IT CANNOT BE RELIED UPON AS HELD IN THE FOLLOWING C ASES:- A) FIRST GLOBAL STOCK BROKING PVT. LTD. [4-DTR-172 ] [MUMBAI TRIBUNAL]. B) PRAMUKH BUILDERS [112-ITD-179] [AHMEDABAD TRIBUN AL (TM)] ON THE BASIS OF OBSERVATION OF THE THIRD MEMBER WHICH IS R EPRODUCED:- 'WELL, THERE MIGHT NOT BE ANY EVIDENCE OF COERCION BEING EXERCISED BY THE SEARCH PARTY; THERE MIGHT NOT BE ANY DURESS ALSO, B UT EXISTENCE OF CONFUSION COULD NOT BE RULED OUT. DURESS HAD TO BE DISTINGUIS HED FROM CONFUSION. DURESS IS A CONSTRAINT, ILLEGALLY EXERCISED TO FORCE A PER SON TO PERFORM SOME ACT. THIS, AS MENTIONED EARLIER, MIGHT BE. ABSENT. BUT CONFUSI ON MEANS SOMETHING THROWN INTO DISORDER WHEREIN PERSON MIGHT BE PERPLE XED OR EMBARRASSED OR THROWN INTO TURMOIL. THE ENTIRE FAMILY WAS LIKELY T O BE IN A STATE OF PERDITION DURING AND IN THE AFTERMATH OF THE SEARCH. IN FACT, THE REVISION OF THE EARLIER STATEMENT DID NOT REFLECT APPLICATION OF MIND BUT A STATE OF COMPOUNDED CONFUSION ONLY. WHEN SUCH WERE THE STATE OF AFFAIRS , NO SANCTITY COULD BE ATTACHED TO THE STATEMENT AND THAT COULD NOT FORM T HE SOLE BASIS TO DETERMINE UNDISCLOSED INCOME.' C) GUJARAT HIGH COURT IN CASE OF KAILASHBEN MANOHA RLAL CHOKSI [14-DTR- 257] HAD OBSERVED THAT 'IT IS TOO MUCH TO GIVE CRED IT TO A STATEMENT RECORDED AT MIDNIGHT WHEN A PERSON MAY NOT BE IN A POSITION TO MAKE ANY CORRECT OR CONSCIOUS DISCLOSURE.' THE ABOVE HAVE NOT BEEN CONSIDERED OR DEALT WITH BY HON. TRIBUNAL. IT IS RESPECTFULLY SUBMITTED THAT NON-CONSIDERATION OF JU DGEMENTS BROUGHT TO THE NOTICE OF THE TRIBUNAL AMOUNTS TO MISTAKE. MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 4 - (V) COPY OF THE AFFIDAVIT VERY CLEARLY STAT ES ON PAGE 20 OF THE PAPER BOOK THAT WHEN THE STATEMENT WAS RECORDED ON 09.03.2005 AT 11.00 PM, THE ASSESSEE WAS ADMITTED TO VARDHMAN HOSPITAL AT SILVA SSA AND WASTING NO TIME, THE DEPARTMENT CALLED THE ASSESSEE DIRECTLY FROM TH E HOSPITAL ON 10.03.2005 TO COMPLETE THE STATEMENT. IN FACT, ON PAGE 21 OF THE PAPER BOOK, IT IS MENTIONED THAT THE ASSESSEE DESPERATELY STATES THAT' THE STAT EMENT WAS MADE TO AVOID ANY STRAIN AND STRESS TO MYSELF AND SAVE MY HEALTH.' THIS FACTUAL ASPECT OF COERCION HAS NOT BEEN DEALT WITH BY THE HON. TRIBUNAL. (7) THE HON. TRIBUNAL HAS RELIED ON CERTAIN J UDGEMENTS IN PARA 8.1, 8.2 AND 8.3 TO WHICH THE ASSESSEE'S REPRESENTATIVE WAS NOT CONFRON TED. (8) (I) WITHOUT PREJUDICE TO THE ABOV E, IN RESPECT OF JUDGEMENT OF SURENDRA KANHAR OF MUMBAI HIGH COURT [321-ITR-254] MENTIONED BY HON. TRIBUNAL, IT REFERRED TO OPERATION UNDER SEARCH AND SEIZURE A ND APPLICABILITY OF SECTION 132(4)(A) WHICH WOULD NOT APPLY TO SURVEY OPERATION S. (II) SIMILARLY, IN THE JUDGEMENT OF D. R. BANS AL [327-ITR-44] OF CHHATISGRARH HIGH COURT, THE ISSUE WAS ABOUT PRE SUMPTION U/S. 132(4) (A) WHICH WOULD NOT BE APPLICABLE IN THE APPEAL BEFORE YOU. (III) AGAIN IN RESPECT OF PUNJAB & HARYANA HIGH COURT IN CASE OF BACHITARSINGH [329-ITR-400] THE FACTS ARE DISTINGUI SHABLE BECAUSE THAT WAS A CASE WHERE THE ASSESSEE HAD CHANGED ITS STAND BY BRINGING AN ALTERNATE SOURCE OF INCOME TO JUSTIFY INVESTMENT, WHEREAS IN THIS CASE THERE IS TOTAL DENIAL OF EXPENDITURE. THE CASE IS, THEREFORE, DISTINGUISHABLE ON FACTS. (9) THE ASSESSEE'S CONTENTION THAT PAGE 34 OF THE PAPER BOOK BEING A PIECE OF UNSIGNED PAPER WITHOUT DATE, WITHOUT MENTION OF YEA R OR WITHOUT PARTICULARS OF LAND CANNOT BE TREATED AS PART OF BOOKS HAS NOT BEEN DEA LT WITH. IN FACT, THERE WAS NOTHING TO SHOW THAT ANY EXPENDITURE WAS INCURRED IN A.Y. 2005 -06 WHEN AS EXPLAINED THE ASSESSEE HAD CLOSED ITS OPERATIONS IN ABOUT 1995. IT IS RESP ECTFULLY SUBMITTED THAT THIS FACET HAS ALSO REMAINED TO BE CONSIDERED. (10) THE ASSESSEE HAD ALSO CONTENDED ABOUT THE ADDI TION BEING MADE ON THREE PRESUMPTIONS:- (I) PRESUMPTION AS TO EXISTENCE OF ANY LAND (II) PRESUMPTION ABOUT DEVELOPMENT EXPENSES (III) PRESUMPTION OF SALE THIS WAS DISCUSSED IN WRITTEN SUBMISSION BUT THE HO N. ACCOUNTANT MEMBER WANTED IN ONE LINE FOR EACH OF THE ABOVE CONTENTIONS WHICH WAS GI VEN IN COURSE OF HEARING BUT NOTHING IN RELATION TO THE ABOVE FINDS PLACE IN THE DISCUSS ION IN THE ORDER OF THE TRIBUNAL. MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 5 - (11) IT WAS POINTED OUT TO THE HON. TRIBUNAL THAT T HE SO CALLED ADVANCE GIVEN TO SHRI I. R. PARMAR COULD NOT MATERIALIZE BECAUSE THE PERMISSION TO SELL WAS NOT GRANTED BY THE COLLECTOR AS PER PAGE 38 AND 39 WHICH HAS BEEN REFE RRED TO IN LAST LINES OF PARA 6 OF THE ORDER. THE HON. TRIBUNAL HAS CONSIDERED ARGUMENT OF NON-PRODUCTION OF SHRI I. R. PARMAR BEFORE THE ASSESSING OFFICER BUT DID NOT DEA L WITH CONTENTION THAT THE COLLECTOR HAD REFUSED PERMISSION IN 1997. A LETTER OF CONFIRMATION FROM MR. I. R. PARAMAR WITH HIS PAN NO. WAS FILED DURING THE COURS E OF ASSESSMENT. THE A.O. CHOSE NOT TO SUMMON HIM. THE APPELLANT RESPECTFULLY SUBMI TS THAT THIS WAS AN IMPOSSIBLE CONDITION AS POINTED OUT BEFORE HON. TRIBUNAL AS TH E ASSESSEE HAD NO CONNECTION WITH THE ABOVE PARTY SINCE LONG AND, THEREFORE, THE QUES TION OF DEPRIVING THE ASSESSING OFFICER BY NOT PRODUCING BEFORE HIM WAS FAR FETCHED BUT THIS RESPONSE WAS NOT CONSIDERED. (12) AS REGARDS ADVANCES GIVEN TO SHRI C. B. PATEL AND NANABHAI PATEL THEY WERE NOT FOR PURCHASE OF ANY LAND, NOR HAS IT BEEN AT ANY PL ACE MADE OUT THAT IT WAS FOR ANY LAND AND, THEREFORE, IT CANNOT BE SAID THAT THE PRE SUMPTION OF EXISTENCE OF LAND AT ALL WAS WELL FOUNDED. THIS PARTICULAR POINT THOUGH BROU GHT BEFORE HON. TRIBUNAL HAS REMAINED TO BE CONSIDERED. (13) AS REGARDS PRESUMPTION OF DEVELOPMENT EXPENSES , NO PARTICULARS OF DETAILED EXPENDITURE WERE FOUND AND THE HON. TRIBUNAL HAS NO T DEALT WITH THE CONTENTION OF THE ASSESSEE THAT 'THE ASSESSEE WOULD NOT BE FOOLIS H TO SPEND ANYTHING ON A LAND IN 2004-05 WHICH WAS NEVER ACQUIRED AND FOR WHICH PERM ISSION WAS REFUSED BY THE AUTHORITIES IN 1997.' (14) THE HON. TRIBUNAL HAS ALSO NOT DEALT WITH THE FINAL PRESUMPTION OF SALE OF LAND. IF INDEED LAND EXISTED, THEN THERE HAD TO BE SOME E VIDENCE OF SALE THEREOF. NO SUCH EVIDENCE WAS FOUND. THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) DELETED THE ADDITION ON ACCOUNT OF PRESUMED PROFIT ON SALE OF L AND WHICH IS NOT CHALLENGED BY THE DEPARTMENT AND ACCEPTED. (15) THE APPELLANT THEREFORE, SUBMITS THAT THESE AR E CLEARLY APPARENT MISTAKES OF LAW AND FACTS AND, THEREFORE, THE ORDER PASSED IS REQUI RED TO BE RECTIFIED. (16) THE HON. TRIBUNAL HAS RELIED TO A GREAT EXTENT ON THE FACT THAT THE ASSESSEE HAD FILED COPY OF THE AFFIDAVIT FOR RETRACTION. IT IS R ESPECTFULLY SUBMITTED THAT IT IS NOT NECESSARY TO MAKE RETRACTION ONLY BY AFFIDAVIT. SIN CE IT WAS A COMMON STATEMENT RECORDED BY THE ITO AT THE TIME OF SURVEY FOR NUMBE R OF ENTITIES, THE RETRACTION WAS ALSO BY A COMMON AFFIDAVIT. THE COPY OF AFFIDAVIT W AS FILED BEFORE THE ITO DEALING WITH THIS CASE AND IT WAS SUBMITTED THAT A COPY OF AFFIDAVIT RETRACTING THE ALLEGED DECLARATION IS ENCLOSED AND FURTHER THAT THE ORIGIN AL THEREOF IS SUBMITTED BEFORE THE ITO ASSESSING M/S. ENN ENN ENTERPRISES. IT HAS NOT EVEN BEEN THE CASE OF THE DEPARTMENT THAT THE RETRACTION IS NOT SUBMITTED. MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 6 - (17) THUS, IGNORING THE RETRACTION ON THIS GROUND I N MY RESPECTFUL SUBMISSION WAS ALSO A MISTAKE. (18) IT IS RESPECTFULLY SUBMITTED THAT HON. TRI BUNAL (A) DID NOT CONSIDER AND/OR DEAL WITH CONTENTIONS PUT FORTH AND JUDGEMENTS CITED (B) RELIED ON JUDGEMENTS WHICH WERE NOT ONLY NOT A PPLICABLE BUT NOT CONFRONTED TO THE ASSESSEE'S REPRESENTATIVE. (C) DID NOT APPRECIATE AND DEAL WITH THE FACT THE FACT THAT THE ORIGINAL RETRACTION WAS FILED BEFORE ITO ASSESSING ENN ENN E NTERPRISE. FOR NAROLI DEVELOPERS SD/- PARTNER (19.4.2011) 2. AT THE OUTSET, WE HEREBY MAKE AN OBSERVATION THA T BY THE LENGTH OF THIS MISCELLANEOUS PETITION, IT IS APPARENT THAT TH E ISSUES RAISED REVOLVE AROUND THE FACTS AS WELL AS THE LAW APPLICABLE WHIC H REQUIRE A THOROUGH ADJUDICATION ON HEARING BOTH THE SIDES AFRESH WHICH IS NOT PERMISSIBLE WHILE EXERCISING JURISDICTION U/S.254(2) OF THE IT ACT. THIS MISCELLANEOUS APPLICATION RAISING SO MANY ISSUES AN D GROUNDS CANNOT BE REDRESSED WHILE HEARING THE MISCELLANEOUS APPLICATI ON, THEREFORE, PRIMA- FACIE THIS MISCELLANEOUS PETITION WHICH IS MORE A R EVIEW PETITION IS TO BE DISMISSED ON THE FACE OF IT. 3. FROM THE SIDE OF THE APPLICANT, LD.AR MR.J.P.SIN GH HAS RAISED THE ARGUMENT THAT THE ADDITION WHICH WAS MADE BY THE AS SESSEE WAS NOT CONNECTED WITH THE BUSINESS ACTIVITY OF THE ASSESSE E. HE HAS INFORMED THAT THE LAND IN QUESTION HAD ALREADY BEEN SOLD AND THAT FACT WAS VERY MUCH ON RECORD, HENCE IN THE ABSENCE OF ANY LAND, T HERE WAS NO QUESTION OF SALE OF SUCH LAND, THEREFORE AN APPROPRIATE RELI EF WAS GRANTED BY LD.CIT(A). HE HAS CITED A DECISION OF KAILASHBEN M ANHARLAL CHOKSHI VS. MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 7 - CIT (2010)328 ITR 411 (GUJ.) FOR THE LEGAL PROPOSIT ION THAT A STATEMENT WAS RECORDED AT THE MIDNIGHT ON THE DATE OF SEARCH AND THAT STATEMENT WAS DIRECTED TO BE ASSESSED IN THE LIGHT OF EXPLANATION WHICH WAS LATER ON FILED IN THE FORM OF AFFIDAVIT. HE HAS PLEADED THAT THE ASSESSEE HAS DEMONSTRATED THAT THE EXISTENCE OF LAND WAS MERELY ON PRESUMPTION AND, THEREFORE, THE SALE WAS ALSO TAXED ON PRESUMPTION B ASIS. HE HAS ALSO ALLEGED THAT FEW CASE-LAWS HAVE BEEN CITED BEFORE T HE TRIBUNAL WERE NOT CONSIDERED. 3.1. THE LD.AR HAS PLACED RELIANCE ON FINQUICK FINA NCE PVT.LTD. VS. DY.CIT 87 ITD 323 (TM)(DELHI) FOR THE LEGAL PROPOS ITION THAT IT IS NOT NECESSARY THAT AN ENTIRE ORDER OF THE TRIBUNAL IS T O BE RECALLED, BUT IF CERTAIN MISTAKES ARE POINTED OUT, THEN THOSE MISTAK ES ARE ACCEPTABLE FOR RECTIFICATION. THE LD.AR HAS ALSO PLACED RELIANC E ON INVENTURE GROWTH AND SECURITIES LTD. (2010)324 ITR 319 (BOM.) FOR T HE LEGAL PROPOSITION THAT IF AN ORDER IS PASSED BY THE TRIBUNAL RELYING UPON A DECISION OF A COORDINATE BENCH WHICH WAS NOT CITED BY OTHER SIDE AND CERTAIN DISTINGUISHING FEATURES HAVE BEEN DEMONSTRATED, THE N PRIMA-FACIE THE IMPUGNED RELIANCE HAS CAUSED PREJUDICE TO THE PETIT IONER, THEREFORE THAT ORDER OF THE TRIBUNAL WAS REMANDED FOR FRESH CONSID ERATION. LD.AR HAS ALSO REFERRED A DECISION OF CIT VS.COCHIN REFINERIE S LTD. (2000) 241 ITR 01 (KER.), BUT WE HAVE NOTED THAT THERE WAS NO RELE VANCE OF THIS CITATION IN THE PRESENT CONTEXT BECAUSE THE SAID ORDER IS NO T IN RESPECT OF A DISPUTE PERTAINING TO THE PROVISIONS OF SECTION 254(2) OF T HE ACT, BUT IT WAS IN RESPECT OF INVESTMENT ALLOWANCE AND INSURERS LIABI LITY IN RESPECT OF DAMAGED ASSETS. MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 8 - 5. FROM THE SIDE OF THE REVENUE, LD.SR.DR MR.D.K.SI NGH HAS VEHEMENTLY ARGUED THAT ONE SIMPLE MISTAKE SHALL NOT RENDER A WHOLE ORDER, A BAD ORDER AND THE WHOLE ORDER MUST NOT BE RECALLED ON ACCOUNT OF ONE SIMPLE MISTAKE. THE MISTAKE WHICH WAS POINTED OUT IS IN RESPECT OF RECORDING OF STATEMENT BUT THAT MISTAKE CANNOT BE R ECTIFIED AT THIS STAGE OF TRIBUNAL APPEAL. EVEN IF A STATEMENT IS RECORDED L ATE AT NIGHT, THE SAME IS NOT AN ILLEGAL STATEMENT. HE HAS ALSO ARGUED THAT THE LAW PRESCRIBES THE TIMINGS FOR ENTRY AT A PREMISES BUT NO TIME IS PRES CRIBED FOR THE EXIST FROM THE SAID PREMISES. IN ANY CASE, MERELY BY REC ORDING A STATEMENT DOES NOT RENDER A MISTAKE ON RECORD SPECIALLY WHEN THE TRIBUNAL HAS ANALYZED THE STATEMENT THOROUGHLY. THE ENTIRE PETI TION DEMONSTRATES THAT CERTAIN ARGUMENTS HAVE NOT BEEN CONSIDERED OR CERTA IN FACTS HAVE NOT BEEN APPRECIATED BUT HOWEVER SUCH A PETITION IS NOTHING BUT A PETITION FOR THE REVIEW OF THE ORDER. 6. WE HAVE HEARD BOTH THE SIDES AT SOME LEN GTH. WE HAVE PERUSED THE CONTENTS OF THE MISCELLANEOUS PETITION. WE HAV E ALSO EXAMINED PARA- WISE THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS D ULY CONSIDERED THE AFFIDAVIT OF THE ASSESSEE AND THE EVIDENCES WHICH W ERE PLACED ON RECORD. AFTER ANALYZING THE FACTS OF THE CASE AND THE EVIDE NCES RECOVERED DURING THE COURSE OF THE OPERATION, THE TRIBUNAL HAS ARRIV ED AT A CONCLUSION THAT THE STATEMENT RECORDED WAS BASED UPON THE SEIZED MA TERIAL/DOCUMENTS. THIS FINDING OF THE TRIBUNAL IS VERY IMPORTANT SPEC IALLY WHEN THE ALLEGATION IS THAT THE ADDITION WAS BASED UPON THE STATEMENT RECORDED AT MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 9 - THE TIME OF SURVEY OPERATION. THIS ALLEGATION IS I NCORRECT BECAUSE THE ADDITION IS NOT MERELY BASED UPON THE STATEMENT REC ORDED BUT IT WAS DULY CORROBORATED BY THE SEIZED DOCUMENTS. IT IS ALSO I NCORRECT TO STATE THAT THE TRIBUNAL HAS NOT APPRECIATED THE CORRECT POSITION O F THE LAND IN QUESTION. THE TRIBUNAL HAS APPRECIATED CERTAIN ANNEXURES AND INVENTORIES AND THEREUPON NOTED THAT THERE WERE LOOSE-PAPERS ON WHI CH THE CASH TRANSACTION ABOUT DEVELOPMENT OF THE LAND WAS NOTED BY THE ASSESSEE WHICH WAS DETECTED DURING THE COURSE OF SURVEY OPER ATION. IT IS ALSO INCORRECT TO ALLEGE THAT THE CASE-LAWS AS CITED HAV E NOT BEEN CONSIDERED BY THE TRIBUNAL. ON CAREFUL READING, WE HAVE NOTED TH AT THE TRIBUNAL HAS CITED SEVERAL DECISIONS AND THEREUPON ARRIVED AT TH E CONCLUSION THAT THERE WAS NO FORCE IN THE PLEADINGS SO THE ADDITION WAS C ONFIRMED. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ARGUMENTS OF BOTH THE SIDES AS ALSO FACTUAL AND LEGAL FINDINGS O F THE TRIBUNAL, THERE WAS NO MISTAKE COMMITTED ON THE PART OF THE TRIBUNAL WH AT TO SAY ABOUT AN APPARENT MISTAKE. SINCE A WELL-REASONED ORDER HAS BEEN PASSED BY THE RESPECTED COORDINATE BENCH, THEREFORE WE ARE FORBID DEN TO REVIEW THAT ORDER. WHILE PASSING THE DECISION, THE TRIBUNAL WA S CONSCIENTIOUS ABOUT ALL THOSE FACTS. THE SCOPE OF THE PROVISIONS OF SE CTION 254(2) OF THE ACT IS VERY LIMITED. A MISTAKE WHICH IS APPARENT FROM AN ORDER CAN ONLY BE RECTIFIED. SUCH A MISTAKE CAN BE A CALCULATION MIS TAKE OR A GLARING MISTAKE WHICH CAN BE APPRECIATED ON THE FACE OF THE RECORDS ITSELF. IF WE ACCEPT THIS PETITION, THEN THIS MAY TANTAMOUNT TO R EVIEW OF AN ORDER OF THE TRIBUNAL. A POWER OF REVIEW HAS TO BE STATUTO RILY CONFIRMED. IT CANNOT BE INFERRED. POWER OF REVIEW HAS NOT BEEN A SSIGNED TO THE TRIBUNAL. THEREFORE, WE CANNOT SIT AS A JUDGE ON OUR OWN DECISION OF MA NO.48/AHD/2011 (IN ITA NO.3250/AHD/2008) M/S.NAROLI DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 10 - RESPECTED COORDINATE BENCH. WE THEREFORE HOLD THAT NO APPARENT MISTAKE HAS BEEN POINTED OUT THROUGH THIS PETITION, HENCE D ISMISSED. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DISMISSED. SD/- SD/- ( ).*$+ *,& ) ( * * - ' ' ' ) ' ./ ' ( A. MOHAN ALANKAMONY ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 10/ 05 /2013 0!. ., ./. ./ T.C. NAIR, SR. PS $* + ,-. /$.( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 234 5 ' / CONCERNED CIT 4. 5 ' ( ) / THE CIT(A)-VALSAD 5. 789 / /34, ! 34&, +*'2' / DR, ITAT, AHMEDABAD 6. 9:; < / GUARD FILE. $*' / BY ORDER, 7 / //TRUE COPY// 0/ 1 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION DATED 6.5.13(DICTATION-PAD 11 PAGES ATTACHED WITH FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.5.113 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S10.5.13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 10.5.13 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER