Sri.E.N. Gopakumar, Trichur V. The DCIT, Cochin

MA 48/COCH/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4680 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 06-09-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-06-2016
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: A GOPALAKRISHNAN
• Keywords: Unexplained cash credit; Presumptive income; Depreciation; Source of fund
• Section: 143(3); 32; 68

Judgement Text

M.P. NOS.46-52/COCH/2016 1 , IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN . . , ., ! ! ! ! BEFORE S/SHRI B. P. JAIN, AM & GEORGE GEORGE K., JM '' # # ./ M.P. NOS.46-52/COCH/2016 ( ARISING OUT OF # # # # ./I.T.A. NOS. 434-440/COCH/2014 ( %& ' /ASSESSMENT YEARS : 2004-05 TO 2010-11) E.N. GOPAKUMAR, EDATHIPARAMBIL HOUSE, PALISSERY, PO ANNAMANADA, THRISSUR-680 741. VS THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1, ERNAKULAM. ( () () () () /ASSESSEE APPELLANT) ( * ** * + + + + () ()() () /REVENUE -RESPONDENT) ( . . # ./PAN NO. ADHPC 8606N () , - /ASSESSEE BY SHRI A. GOPALAKRISHNAN, CA * + () , - /REVENUE BY SHRI A. DHANARAJ SR. DR ./ , 01 / DATE OF HEARING 06/092016 2 ' , 01 /DATE OF PRONOUNCEMENT 06/09/2016 3 3 3 3 /ORDER PER B.P. JAIN, AM: THESE SEVEN MISCELLANEOUS PETITIONS ARISE FROM THE COMMON ORDER OF THE TRIBUNAL IN I.T.A. NOS.434-440/COCH/2014 VIDE ORDER DATED 26/10/2015 FOR THE ASSESSMENT YEARS 2004-05 TO 2010-11. M.P. NOS.46-52/COCH/2016 2 2. THE ASSESSEE HAS SUBMITTED THE MISCELLANEOUS PE TITIONS FOR EACH YEAR SEPARATELY. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE PRAYED TO ARGUE THE MISCELLANEOUS APPLICATION IN M.P.NO.52/COCH/2016 AR ISING OUT OF I.T.A. NO. 440/COCH/2014 FOR THE ASSESSMENT YEAR 2010-11 WHICH IN FACT INCLUDES THE FACTS IN ALL THE MISCELLANEOUS APPLICATIONS FILED IN ALL THE APPEALS DECIDED BY US VIDE OUR ORDER DATED 26/10/2015 MENTIONED HEREINABOVE. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN M.P. NO. 52/CO CH/2016 IS REPRODUCED HEREINBELOW FOR THE SAKE OF CONVENIENCE: 1. THE PETITIONER WAS THE RESPONDENT IN ALL THE SE VEN APPEALS IN I.T.A. NOS. 434-440/COCH/2014 FILED BEFORE THE HONBLE APPELLAT E TRIBUNAL FOR THE ASSESSMENT YEARS 2004-05 TO 2010-11. THE APPEALS B EFORE THE HONBLE APPELLATE TRIBUNAL WERE FILED BY THE REVENUE AGAINS T THE ORDERS PASSED BY THE COMMISSIONER OF INCOME-TAX(A)-I, KOCHI. 2. THE PETITIONER HAD FILED APPEALS BEFORE THE COM MISSIONER OF INCOME TAX*(A) AGAINST THE ASSESSMENT ORDERS PASSED BY THE ASSESSING AUTHORITY. THE ASSESSMENTS FOR THE SIX ASSESSMENT YEARS 2004-0 5 TO 2009-10 WERE COMPLETED U/S. 143(3) R/W SEC. 153A, IN ASSESSMENT FOR THE ASSESSMENT YEAR 2010-11 WAS PASSED U/S. 143(3). THE COMMISSIONER O F INCOME TAX(A) ALLOWED CERTAIN GROUNDS RAISED BY THE PETITIONER IN HIS APPEALS RESULTING IN RELIEF TO THE PETITIONER. THE APPEALS FILED BY THE PETITIONER WERE ALLOWED IN PART. 3. IT IS AGAINST THESE ORDERS OF THE COMMISSIONER O F INCOME TAX(A) THAT THE REVENUE HAS COME BEFORE HONBLE APPELLATE TRIBUNAL, IN SECOND APPEALS. THE HONBLE APPELLATE TRIBUNAL ACCEPTED THE GROUNDS AND CONTENTIONS OF THE REVENUE. THE HONBLE APPELLATE TRIBUNAL WAS PL EASED TO SET ASIDE THE ORDERS OF THE CIT(A) THROUGH THEIR HONOURS CONSOLI DATED ORDER DATED 26/10/2015. THE APPEALS FILED BY THE REVENUE WERE ALLOWED. 4. WHILE PASSING ORDERS ALLOWING THE APPEALS FILED BY REVENUE, CERTAIN MISTAKES OF LAW AND FACTS HAVE OCCURRED, WHICH ARE APPARENT FROM THE RECORDS. PETITIONER RESPECTFULLY SUBMITS THAT THES E MISTAKES OF LAW AND FACTS APPARENT ON RECORDS MAY KINDLY BE RECTIFIED FOR THE REASONS GIVEN BELOW. M.P. NOS.46-52/COCH/2016 3 5. THIS PETITION FOR THE ASSESSMENT YEAR 2010-11 I N I.T.A. NO. 440/COCH/2014 IS FILED BEFORE THE HONBLE APPELLATE TRIBUNAL PRAY ING FOR RECTIFICATION OF THE MISTAKES OF LAW AND FACTS. 6. SEC. 254(2) OF THE INCOME TAX ACT, 1961 EMPOWERS THE HONBLE APPELLATE TRIBUNAL TO AMEND ANY ORDER PASSED BY THE TRIBUNAL UNDER SECTION 254(1)WITH A VIEW TO RECTIFY ANY MISTAKE AP PARENT FROM THE RECORDS. THE LIMITATION PROVIDED FOR THE RECTIFICATION U/S. 254(2) IS A PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER OF THE HONBLE APP ELLATE TRIBUNAL. THE CONSOLIDATED ORDER PASSED BY THE HONBLE APPELLATE TRIBUNAL IN THE PRESENT CASE IS DATED 26/10/2015. THEREFORE, THIS RECTIFICATION PETITION IS FILED WITHIN TIME. 7. THE ASSESSMENT FOR THE ASSESSMENT YEAR 2010-11 HAS BEEN COMPLETED U/S. 143(3) OF INCOME TAX ACT, 1961. THE TOTAL ADD ITIONS MADE BY THE ASSESSING AUTHORITY FOR THE IMPUGNED ASSESSMENT YEA R, AMOUNTS TO RS.31,65,919/-. 8. THE ASSESSING AUTHORITY HAS ERRED IN MAKING AN ADDITION OF RS.10,87,787/- BY DISALLOWING THE CASH AVAILABLE WITH THE PETITION ER TO THE EXTENT OF DEPRECIATION, WHICH IS A NON-CASH STATUTORY DEDUCTI ON. THE INCOME OF THE PETITIONER FROM THE TRANSPORT BUSINESS WAS OFFERED U/S. 44AE OF THE INCOME TAX ACT, 196. SUB-SEC. (4) OF SEC. 44AE PROVIDES T HAT THE PRESUMPTIVE INCOME UNDER THE SECTION IS COMPUTED AFTER THE DEPR ECIATION HAS BEEN DEEMED TO HAVE BEEN ALLOWED AND AS SUCH THE WRITTEN DOWN VALUE OF THE ASSETS MUST BE STATED AS IF DEPRECIATION ALLOWANCE HAS BEEN ALLOWED. DEPRECIATION IS AN ALLOWANCE PROVIDED U/S. 32 OF TH E INCOME TAX ACT, 1961 AS A DEDUCTION IN COMPUTING THE TAXABLE INCOME OF A N ASSESSEE. IT IS A STATUTORY ALLOWANCE. IT IS NOT AN EXPENDITURE RESUL TING IN OUTGOING OF FUNDS. THEREFORE, THE AMOUNT OF DEPRECIATION ALLOWANCE CON SIDERED AS DEDUCTION WILL NOT DILUTE THE CASH POSITION AND THA T MUCH CASH WILL BE AVAILABLE WITH AN ASSESSEE. 9. THUS IT IS WELL SETTLED AND HENCE VERY EVIDENT THAT THE DEPRECIATION ALLOWANCE DEDUCTED FROM THE GROSS INCOME OF A BUSIN ESS IS NOT AN EXPENDITURE INCURRED BY WAY OF OUT FLOW OF FUNDS AN D IT IS IN THE NATURE OF A PROVISION CREATED TO RECOGNIZE THE DIMINUTION IN TH E VALUE OF THE FIXED ASSETS PUT TO USE FOR THE PURPOSE OF CARRYING ON OF THE BUSINESS AND EARN INCOME. HOWEVER, FOR THE PURPOSE OF DETERMINATION OF THE CASH AVAILABILITY IN THE BUSINESS, IT IS NECESSARY TO ADD BACK THE DE PRECIATION DEBITED AND CLAIMED AS A DEDUCTION IN THE PROFIT AND LOSS ACCOU NT TO DETERMINE NET OPERATING PROFIT OF THE BUSINESS. THE TOTAL CASH AV AILABLE IN THE TRANSPORT BUSINESS WITH REFERENCE TO THE OPERATING PROFIT AND DEPRECIATION WAS IN FACT UTILIZED FOR THE PURPOSE OF MAKING PAYMENT TO THE BANKS, NBFCS AND M.P. NOS.46-52/COCH/2016 4 OTHER FINANCIAL INSTITUTIONS TOWARDS INTEREST AND I NSTALLMENTS IN RESPECT OF THE TERM LOAN TAKEN FOR THE PURCHASE OF VEHICLES. 10. IT IS RESPECTFULLY SUBMITTED THAT THE HONOURAB LE APPELLATE TRIBUNAL DID NOT CONSIDER THIS IMPORTANT ACCOUNTING AND FINANCIA L PRINCIPLES AND GUIDELINES TO DETERMINE THE CASH AVAILABLE WITH THE PETITIONER FOR MAKING THE VARIOUS PAYMENTS INCLUDING REPAYMENT OF LOAN AN D PAYMENT OF INTEREST TO THE FINANCIAL INSTITUTIONS AGAINST THE LOAN TAKEN FOR THE PURCHASE OF TRANSPORT VEHICLES. YOUR PETITIONER HUMBLY PRAY S THAT THIS IS A MISTAKE OF FACT APPARENT ON RECORDS AND HENCE MAY BE RECTIFIED . 11. THE POSITION BEING SELF SPEAKING, IT IS A MISTA KE OF FACT NOT TO GIVE CREDIT TO THE DEPRECIATION AMOUNT SHOWN AS SOURCE OF FUNDS IN THE CASH FLOW STATEMENT FILED BY THE PETITIONER. 12. THE PETITIONER PRAYS THAT THE HONBLE APPELLAT E TRIBUNAL MAY BE PLEASED TO RECTIFY THE MISTAKE OF FACT BY DELETING THE ADDITION OF RS.10,81,787/- SUSTAINED FOR THE IMPUGNED ASSESSMEN T YEAR 2010-11. 13. THE ASSESSING AUTHORITY HAS ERRED IN MAKING AN ADDITION OF RS.6,34,132/- AGAINST THE SHARE OF PROFITS FROM THE FIRM M/S. ESS EN TRADING COMPANY, SHOW AS CASH AVAILABLE BY THE PETITIONER IN THE CASH FLO W STATEMENT. THE SHARE OF PROFITS OF THE PETITIONER WAS CREDITED IN HIS PERSO NAL ACCOUNT ALONG WITH OTHER FUNDS BROUGHT IN BY HIM, IN THE BOOKS OF M/S. ESSEN TRADING COMPANY. REMUNERATION AND INTEREST ON CAPITAL DUE TO THE PET ITIONER WERE ALSO CREDITED IN HIS ACCOUNT. THE WITHDRAWALS WERE MADE BY THE PETITIONER FROM THE CREDIT BALANCE AVAILABLE IN THE SAID ACCOUNT. THE HONOURABLE APPELLATE TRIBUNAL DID NOT CONSIDER THIS IMPORTANT ACCOUNTING PRINCIPLE AND FACT REGARDING THE TREATME NT OF THE SHARE OF PROFIT FROM THE FIRM M/S. ESSEN TRADING COMPANY FOR A SUM OF RS.6,34,132/- FOR THE FINANCIAL YEAR IN THE CASH FLOW STATEMENT. THE PETITIONER HAD FURNISHED THE FOLLOWING FACTS, S TATEMENTS AND REPORTS IN SUPPORT OF THE AMOUNT OF RS.6,34,132/- SHOWN AS INF LOW IN THE CASH FLOW STATEMENT WITH REGARD TO THE WITHDRAWAL FROM THE FI RM M/S. ESSEN TRADING COMPANY AND THOSE STATEMENTS AND REPORTS WERE NOT C ONSIDERED BY THE HONBLE TRIBUNAL. M.P. NOS.46-52/COCH/2016 5 (A) BALANCE SHEET OF M/S. ESSEN TRADING COMPANY AS ON 31-03-2010. (B)COPY OF THE CURRENT ACCOUNT OF THE PETITIONER IN THE FIRM M/S. ESSEN TRADING COMPANY FOR THE FINANCIAL YEAR 2009-10 SHOWING THE WITHDRAWAL FROM THE FIRM AND THE CREDITS INCLUDING THE SHARE OF PROFIT EARNE D DURING THE YEAR. (C) STATEMENT SHOWING DATEWISE WITHDRAWAL AGAINST T HE CURRENT ACCOUNT IN THE FIRM AND RECONCILIATION OF THE WITHDRAWALS FROM THE FIRM WITH THE AMOUNT SHOWN AS INFLOW OF FUNDS IN THE CASH FLOW STATEMENT . (D) A RECONCILIATION OF THE AMOUNTS SHOWN IN THE CA SH FLOW STATEMENT IN RESPECT OF THE TRANSACTIONS IN THE CURRENT ACCOUNT OF THE PETITIONER IN THE FIRM M/S. ESSEN TRADING COMPANY AND THE CORRESPONDING SU MMARY OF THE TRANSACTIONS IN THE FINANCIAL STATEMENT VIS--VIS B ALANCE SHEET OF THE FIRM FOR THE YEAR ENDED 31-03-2010 AS PER DETAILS SHOWN BELO W DETAILS OF THE AMOUNT SHOWN IN THE CASH FLOW STATEM ENT AS INFLOW OF FUNDS ARE GIVEN BELOW: 1. INFLOW OF FUNDS AS SHOWN IN CASH FLOW STATEMENT: SL. NO. PARTICULARS AMOUNT RS. AMOUNT RS. NET WITHDRAWAL IN THE FIRM ESSEN TRADING CO. 16,6 9,765.43 ADD: SHARE OF PROFIT 6,34,132.07 REMUNERATION FOR THE PERIOD NIL INTEREST ON CAPITAL 11,34,273.00 17,68,405.07 TOTAL INFLOW OF FUNDS 34,38,170.50 2. MOVEMENT IN THE CAPITAL AND CURRENT ACCOUNT SL. NO. PARTICULARS AMOUNT RS. AMOUNT RS. WITHDRAWAL FROM CURRENT ACCOUNT 1,55,76,202.48 LESS: CREDITS IN THE CURRENT ACCOUNT 1,21,38,031.9 8 CREDITS IN THE CAPITAL ACCOUNT NIL 1,21,3 8,031.98 NET WITHDRAWAL FROM CAPITAL AND CURRENT ACCOUNT 34,38,170.50 M.P. NOS.46-52/COCH/2016 6 3. AS SHOWN IN THE FINANCIAL STATEMENT (BALANCE SHE ET) SL. NO. PARTICULARS AMOUNT RS. AMOUNT RS. OPENING BALANCE AS ON 01-04-2009 (CREDIT BALANCE) 1,05,78,485.63 NET WITHDRAWAL FROM CAPITAL AND CURRENT (AS ABOVE) ACCOUNT (34,38,170.50) BALANCE CREDIT BALANCE 71,40,315.13 ADD: NON CASH CREDITS IN THE CURRENT ACCOUNT SHARE OF PROFIT 6,34,132.07 REMUNERATION FOR THE PERIOD NIL INTEREST ON CAPITAL 11,34,273.00 17,68,405.07 CLOSING CREDIT BALANCE AS PER FINANCIAL STATEMENT (BALANCE SHEET) 89,08,720.20 THUS IT IS EVIDENT THAT THE AMOUNT SHOWN AS NOT INF LOW OF FUNDS IN THE CASH FLOW STATEMENT RECONCILES EXACTLY WITH THE NET WITHDRAWA L FROM THE FIRM M/S. ESSEN TRADING COMPANY WHICH AMOUNTS TO RS.34,38,170/-, I. E., THE OUTFLOW (PAYMENTS/WITHDRAWALS)OF FUNDS FROM THE FIRM AND IN FLOW (RECEIPTS) OF FUNDS IN THE PERSONAL CASH FLOW STATEMENT OF THE PETITIONER. THE PETITIONER RESPECTFULLY PRAYS THAT THE HONOURAB LE APPELLATE TRIBUNAL DID NOT CONSIDER THESE FACTS, STATEMENTS, EVIDENCES OR DOCU MENTS AVAILABLE ON RECORDS AND SUBMITTED AT THE TIME OF HEARING OF THE APPEAL TO VERIFY THE CLAIM OF THE PETITIONER. THE PETITIONER PLEADS THAT THIS IS A MISTAKE OF FAC T APPARENT FROM RECORDS AND HENCE ELIGIBLE TO BE RECTIFIED. 14. IT IS A MISTAKE OF FACT TO SUSTAIN THE ADDITIO N OF RS.6,34,132/-, INSPITE OF SPEAKING ENTRIES REFLECTED IN THE BOOKS OF ACCOUNTS MAINTAINED BY M/S. ESSEN TRADING COMPANY. M.P. NOS.46-52/COCH/2016 7 15. THE PETITIONER PRAYS THAT THE HONBLE APPELLATE TRIBUNAL MAY BE PLEASED TO RECTIFY THIS MISTAKE OF FACT BY DELETING THE ADDITION OF RS.6,34,132/- SUSTAINED FOR THE IMPUGNED ASSESSMENT YEAR 2010-11. 16. THE ASSESSING AUTHORITY HAS ERRED IN MAKING AN ADDI TION OF RS.5,00,000/- WHICH AMOUNT WAS RECEIVED AS AN ADVANCE FROM ONE MR . T.N. SINDHUKUMAR, COUSIN OF THE PETITIONER, RUNNING THE BUSINESS OF PHOTOGRAPHIC STUDIO IN DUBAI FOR MORE THAN TWENTY Y EARS. HIS ANNUAL INCOME AMOUNTED TO RS.25,00,000/-. HE HAD REMITTED OVER A PERIOD OF THREE YEARS AN AMOUNT OF RS.20,00,000/- TO THE PETI TIONER TO INVEST IN REAL ESTATE ASSETS HAVING GOOD INCOME POTENTIAL. THE AM OUNT GIVEN TO THE PETITIONER IN THE PREVIOUS YEAR RELEVANT TO THE ASS ESSMENT YEAR 2010-11 WAS RS.5,00,000/-. THE PETITIONER HAD FURNISHED ALL TH E DETAILS TO ESTABLISH THE IDENTITY, CREDIT WORTHINESS OF T.N. SINDHUKUMAR AND THAT OF REMITTANCES TO THE ASSESSING AUTHORITY. WHEN THE IDENTITY OF THE PARTY IS PROVED, SOURCE AND CREDIT WORTHINESS ARE EXPLAINED, REMITTANCES WE RE CONFIRMED BY THE PARTY, THE ASSESSING AUTHORITY OUGHT NOT HAVE MADE THE ADDITION OF RS.5,00,000/- AS UNEXPLAINED CREDIT U/S. 68 OF THE INCOME TAX ACT, 1961. 17. THE PETITIONER RESPECTFULLY SUBMITS THAT THE HO NOURABLE APPELLATE TRIBUNAL DID NOT CONSIDER THE FOLLOWING EVIDENCES/D OCUMENTS AND STATEMENTS IN SUPPORT OF THE CLAIM OF THE PETITIONE R REGARDING THE SUM OF RS.5,00,000/- RECEIVED AS ADVANCE FROM SHRI T.N. SI NDHU KUMAR AND SHOWN AS SOURCE OF FUNDS IN THE CASH FLOW STATEMENT. 1. CONFIRMATION LETTER RECEIVED FROM SRI SINDHU KUMAR. 2. COPY OF THE BANK STATEMENT IN WHICH THE PAYMENTS UN DER CONSIDERATION ARE REFLECTED. 3. DETAILS OF THE PAN. 4. COPY OF THE PASSPORT OF SHRI SINDHUKUMAR. 18. THE PETITIONER RESPECTFULLY SUBMITS THAT THE HO NORABLE APPELLATE TRIBUNAL DID NOT CONSIDER THE FACT AND THE SETTLED LEGAL PRINCIPLES THAT THE PETITIONER HAD DISCHARGED HIS INITIAL AND PRIMARY R ESPONSIBILITY WITH REGARD TO THE CREDIT OF RS.5,00,000/- RECEIVED FROM THE CR EDITOR SHRI SINDHU KUMAR BY FURNISHING THE ABOVEMENTIONED DOCUMENTS/EVIDENCE S. THE ASSESSING AUTHORITY ON RECEIPT OF THE CONFIRMATION LETTER AND OTHER EVIDENCES SHOULD HAVE TAKEN SWORN STATEMENT FROM THE CREDITOR BY ISS UING A SUMMONS ON HIM IN CASE HE ENTERTAINED ANY DOUBT REGARDING THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE REMITTANCES. THE ASSESSING AUTHORITY DID NOT TAKE ANY SUB STEP TO DISPROVE THE CLAIM OF THE PETITIONER AND THE ADDITION MADE WITHOUT ANY PROOF TO THE CONTRARY IS LEGALLY AND FACTUALLY INCORRECT. THIS IMPORTANT ASPECT WAS ALSO NOT CONS IDERED BY THE HONOURABLE INCOME TAX APPELLATE TRIBUNAL IN SUSTAIN ING THE ADDITION OF M.P. NOS.46-52/COCH/2016 8 RS.5,00,000/- AS UNEXPLAINED CREDIT U/S. 68 OF THE INCOME TAX ACT. THIS NON CONSIDERATION OF THE DOCUMENTS/EVIDENCES FURNISHED AND SUBMISSIONS MADE BY THE PETITIONER AT THE TIME OF HEARING OF TH E APPEAL BY THE HONORABLE INCOME TAX APPELLATE TRIBUNAL IS A MISTAK E OF FACT AND LAW APPARENT ON RECORDS. 19. IT IS A MISTAKE OF FACT AND LAW IN SUSTAINING T HE ADDITION OF RS.5,00,000/-. 20. THE PETITIONER PRAYS THAT THE HONBLE APPELLATE TRIBUNAL MAY BE PLEASED TO RECTIFY THIS MISTAKE OF FACT BY DELETING THIS ADDITION OF RS.5,00,000/- AND THEREBY MAKING AN ADDITION OF RS. 4,50,000/-. THE COMMISSIONER OF INCOME TAX (APPEALS), ACCEPTED THE CLAIM OF THE PETITIONER AND ALLOWED THE ENTIRE AMOUNT OF RS.6,00 ,000/- AS AGRICULTURAL INCOME STATING THAT THE SAME IS QUITE REASONABLE AN D IN ORDER. THE ASSESSEE HAD 83 ACRES OF LAND. THE MAIN CROP WAS C OCONUT. THE PETITIONER HAD PRODUCED ALL THE RELEVANT DETAILS BEFORE THE AS SESSING AUTHORITY. CONSIDERING THE EXTENT OF LAND AND THE CROP CULTIVA TED, THE AGRICULTURAL INCOME OF RS.6,00,000/- CLAIMED BY THE PETITIONER S HOULD HAVE BEEN ALLOWED IN FULL. 22. IT IS RESPECTFULLY SUBMITTED AND PRAYED THAT T HE HONORABLE APPELLATE TRIBUNAL DID NOT CONSIDER THE FOLLOWING DOCUMENTS/ EVIDENCES AND STATEMENTS FURNISHED BY THE PETITIONER IN SUPPORT O F THE CLAIM OF RS.6,00,000/- TOWARDS AGRICULTURAL INCOME EARNED FR OM ABOUT 83 ACRES OF AGRICULTURAL PROPERTIES. A. STATEMENT IN DETAIL SHOWING THE COMPUTATION OF AGRI CULTURAL INCOME (LAND WISE). B. COPIES OF THE PURCHASE DEEDS IN SUPPORT OF THE AGRI CULTURAL LANDS OWNED BY THE ASSESSEE. 23. IT IS RESPECTFULLY PRAYED THAT THE HONORABLE A PPELLATE TRIBUNAL OMITTED TO CONSIDER THESE EVIDENCES AND FACTS. THUS IT IS RESPECTFULLY SUBMITTED THAT THE OMISSION TO CONSIDER THE ABOVE EVIDENCES AND TH E CONTENTIONS PRODUCED BY THE PETITIONER IS A MISTAKE OF FACT APP ARENT FROM RECORDS. 24. THE PETITIONER PRAYS THAT THE HONBLE APPELLATE TRIBUNAL MAY BE PLEASED TO RECTIFY THIS MISTAKE OF FACT BY DELETING THE ADDITION OF RS.6,00,000/- SUSTAINED FOR THE IMPUGNED ASSESSMENT YEAR 2010-11. 25. THE ASSESSING AUTHORITY HAS ERRED IN MAKING AN ADDITION OF RS.5,00,000/- AGAINST THE ADVANCE AMOUNT RECEIVED FROM SHRI T.K. SHAJI AGAINST THE VALUE OF AN APARTMENT W ITH AN AREA OF 1350 SQ. FT. AT PERIYAR RESIDENCY, ALUVA. THERE WAS AN AGREEMEN T FOR THE TRANSACTION M.P. NOS.46-52/COCH/2016 9 DATED 12/08/2009. THE SALE AMOUNT PROPOSED WAS FOR RS.20,00,000/-. IT IS AGAINST THIS AGREEMENT THAT THE PETITIONER RECEIVED AN ADVANCE OF RS.5,00,000/- ON 12/08/2009 AS PER THE AGREEMENT DA TED 12/08/2009. BUT, THE SALE AGREEMENT DID NOT GO THROUGH AND THE PETIT IONER REFUNDED THE ENTIRE ADVANCE AMOUNT TO SHRI T.K. SHAJI ON CANCELL ATION OF THE AGREEMENT. THE IDENTITY OF SHRI T.K. SHAJI, HIS CREDIT WORTHIN ESS, SOURCE FOR MAKING THE ADVANCE TO THE PETITIONER AND OTHER DETAILS WERE FU RNISHED BEFORE THE ASSESSING AUTHORITY. IN FACT THIS ADVANCE IS A TRAD E CREDIT. THEREFORE THE ASSESSING AUTHORITY OUGHT NOT HAVE MADE THIS ADDITI ON OF RS.5,00,000/-. 26. THE PETITIONER RESPECTFULLY PRAYS AND SUBMITS THAT THE HONORABLE APPELLATE TRIBUNAL DID NOT CONSIDER THE CONFIRMATIO N LETTER RECEIVED FROM THE CREDITOR CONFIRMING THE AMOUNT PAID TO SHRI E.N . GOPAKUMAR AGAINST THE SALE OF FLAT TOGETHER WITH THE EXPLANATION FOR THE SOURCE OF CREDIT AND FURNISHED BY THE PETITIONER AT THE TIME OF THE HEAR ING BEFORE THE TRIBUNAL IN SUPPORT OF THE SUM OF RS.5,00,000/- RECEIVED AS ADV ANCE FROM SHRI T.K. SHAJI. 27. THE PETITIONER HUMBLY PRAYS THAT THIS OMISSION TO CONSIDER THE AFOREMENTIONED EVIDENCES AND DOCUMENTS IS A MISTAKE OF FACT APPARENT ON RECORDS AND HENCE IS ELIGIBLE TO BE RECTIFIED. 28. IT IS A MISTAKE OF FACT TO SUSTAIN THE ADDITI ON OF RS.5,00,000/- 29. THE PETITIONER PRAYS THAT THE HONBLE APPELLATE TRIBUNAL MAY BE PLEASED TO RECTIFY THIS MISTAKE OF FACT BY DELETING THIS ADDITION OF RS.5,00,000/- SUSTAINED FOR THE IMPUGNED ASSESSMENT YEAR 2010-11. 30. THE PETITIONER RESPECTFULLY PRAYS THAT THE HON BLE TRIBUNAL MAY SYMPATHETICALLY CONSIDER THE ABOVE MENTIONED EVIDEN CES AND POINTS AND RECTIFY THE MISTAKES OF FACTS AND LAW APPARENT ON R ECORDS BY DELETING THE ADDITION OF RS.31,65,919/- SUSTAINED AS PER THE ORD ER DATED 26/10/2015. 31. THE MISTAKES OF LAW AND FACTS PLACED BEFORE T HE HONBLE APPELLATE TRIBUNAL THROUGH THIS PETITION ARE MISTAKES APPAREN T FROM RECORDS AND DO NOT CALL FOR ANY DEBATE OF LAW AND/OR INVESTIGATION INTO THE FACTS. I HEREBY CONFIRM THAT I HAVE NOT FILED ANY OTHER MI SCELLANEOUS APPLICATION U/S. 254(2) BEFORE THIS HONORABLE TRIBUNAL AGAINST THE ORDER NOW UNDER CONSIDERATION. M.P. NOS.46-52/COCH/2016 10 3. THE LD. DR OPPOSED THE SAID MISCELLANEOUS APP LICATIONS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ADDITION OF RS.10,81,787/- ON ACCOUNT OF DEPRECIATION BEING NON CASH STATUTORY IN COME AND NOT AN EXPENDITURE AND THEREFORE, THERE IS NO OUTGOING OF THE FUNDS, WHICH WILL NOT DILUTE THE CASH POSITION AS PER THE CASH FLOW STATE MENT WHICH WAS PLACED BEFORE BOTH THE AUTHORITIES BELOW AND ALSO BEFORE T HE ITAT, BUT THE SAME HAS NOT BEEN CONSIDERED BY THE TRIBUNAL WHICH TANTAMOUN TS TO A MISTAKE APPARENT FROM RECORD AND WHICH ULTIMATELY REQUIRES RECTIFICA TION U/S. 254(2) OF THE ACT. ALSO, THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THE ADDITION OF RS.6,34,132/- AGAINST THE SHARE OF PROFITS FROM THE FIRM M/S. ESS EN TRADING COMPANY SHOWN AS CASH AVAILABLE BY THE ASSESSEE IN THE CASH FLOW STA TEMENT WHICH WAS CREDITED TO THE PERSONAL ACCOUNT OF THE ASSESSEE ALONG WITH OTHER FUNDS BROUGHT IN BY HIM IN THE BOOKS OF M/S. ESSEN TRADING COMPANY WAS NOT CONSIDERED BY THE ITAT WHICH TANTAMOUNTS TO A MISTAKE APPARENT FROM RECORD . THE ITAT HAS NOT CONSIDERED THE BALANCE SHEET OF THE FIRM M/S. ESSEN TRADING COMPANY AS ON 31- 03-2010, COPY OF CURRENT ACCOUNT OF THE ASSESSEE IN THE FIRM M/S. ESSEN TRADING COMPANY, STATEMENT SHOWING DATEWISE TRANSFER AGAINS T THE CURRENT ACCOUNT AND RECONCILIATION STATEMENT SHOWN IN THE CASH FLOW STATEMENT WHICH IN FACT M.P. NOS.46-52/COCH/2016 11 WERE NOT CONSIDERED BY THE ITAT WHICH CALLS FOR RE CTIFICATION U/S. 254(2) OF THE ACT. 5. AFTER PERUSAL OF THE FACTS OF THE CASE AND ARG UMENTS OF BOTH THE PARTIES AND THE VARIOUS EVIDENCES AND DOCUMENTS AND CASH FLOW S TATEMENT PLACED ON RECORD BEFORE BOTH THE AUTHORITIES BELOW AND BEFORE US, IT IS APPARENT THAT THE TRIBUNAL HAS NOT CONSIDERED THE VARIOUS EVIDENCES A ND DOCUMENTS PLACED ON RECORD ALONGWITH CASH FLOW STATEMENT WHICH TANTAMOU NTS TO A MISTAKE APPARENT FROM RECORD RECTIFIABLE U/S. 254(2) OF THE ACT WITH REGARD TO THE ADDITION OF RS.10,81,787/- ON ACCOUNT OF DEPRECIATI ON AND RS. 6,34,132/- ON ACCOUNT OF SHARE OF PROFITS FROM M/S. ESSEN TRADING COMPANY AND ACCORDINGLY, THE ORDER IS LIABLE TO BE RECALLED ON THE SAID ISSU ES. 6. AS REGARDS THE ADDITION OF RS. 5 LAKHS RECEIVE D AS ADVANCE FROM SHRI T.N. SINDHU KUMAR, COUSIN OF THE ASSESSEE, RUNNING THE B USINESS OF PHOTOGRAPHIC STUDIO IN DUBAI FOR MORE THAN 20 YEARS, THE ASSESSE E HAS PLACED ON RECORD THE CONFIRMATION LETTER FROM SHRI SINDHU KUMAR, COPY OF THE BANK ACCOUNT WHERE THE PAYMENTS TO THE ABOVE HAVE BEEN REFLECTED, DETA ILS OF THE PAN AND COPY OF THE PASSPORT OF SHRI SINDHUKUMAR WHICH IN FACT WERE NOT CONSIDERED BY THE TRIBUNAL WHICH TANTAMOUNTS TO A MISTAKE APPARENT FR OM RECORD AND CALLS FOR RECTIFICATION OF THE ORDER TO THAT EFFECT AND IS AC CORDINGLY, LIABLE TO BE RECALLED. M.P. NOS.46-52/COCH/2016 12 7. AS REGARDS AGRICULTURAL INCOME AMOUNTING TO RS .6 LAKHS, VARIOUS EVIDENCES DOCUMENTS FURNISHED BY THE ASSESSEE LIKE STATEMENT OF COMPUTATION OF AGRICULTURAL INCOME, COPIES OF PURCHASE DEEDS OF AG RICULTURAL LAND MEASURING 83 ACRES WERE NOT CONSIDERED BY THE TRIBUNAL WHICH TAN TAMOUNTS TO A MISTAKE APPARENT FROM RECORD AND THE ORDER TO THAT EFFECT I S LIABLE TO BE RECALLED. 8. AS REGARD ADDITION OF RS. 5 LAKHS AGAINST THE ADVANCE RECEIVED FROM SHRI T.K. SHAJI AGAINST THE VALUE OF AN APARTMENT WITH AREA O F 1350 SQ. FT. AT PERIYAR RESIDENCY, ALUVA, THE TRIBUNAL HAS NOT CONSIDERED T HE CONFIRMATION LETTER RECEIVED FROM THE CREDITOR WHICH GOES INTO THE ROOT OF THE MATTER AND TANTAMOUNTS TO A MISTAKE APPARENT FROM RECORD AND A CCORDINGLY, THE ORDER IS LIABLE TO BE RECALLED. 9. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, OUR ORDER IN I.T.A. NO. 440/COCH/2014 THROUGH M.P. NO. 52/COCH/2016 IS LIAB LE TO BE RECALLED AS MENTIONED HEREINABOVE. 10. AS REGARDS OTHER MISCELLANEOUS PETITIONS IN M .P. NOS. 46-51/COCH/2016 ARISING OUT OF I.T.A. NOS. 434-439/COCH/2014 FOR TH E ASSESSMENT YEARS 2004-05 TO M.P. NOS.46-52/COCH/2016 13 2009-10, ALL ARE HAVING IDENTICAL FACTS AS IN THE M .P. NO. 52/COCH/2016 FOR THE ASSESSMENT YEAR 2010-11 DECIDED BY US HEREINABOVE A ND ACCORDINGLY, FOR THE ISSUES RAISED IN THE SAID MISCELLANEOUS APPLICATION S WHICHEVER ARE APPLICABLE, OUR ORDER IN M.P. NO.52/COCH/2016 FOR THE ASSESSME NT YEAR 2010-11 IS IDENTICALLY APPLICABLE TO M.P. NOS. 46-51/COCH/2016 FOR THE AS SESSMENT YEARS 2004-05 TO 2009-10. ACCORDINGLY, ALL THE APPEALS IN I.T.A. NO S. 434-440/COCH/2014 VIDE OUR ORDER DATED 26/10/2015 ARE RECALLED AND THE REGISTR Y IS DIRECTED TO FIX THE SAID APPEALS FOR HEARING ON 22 ND SEPTEMBER, 2016 . SINCE THE DATE OF HEARING HAS BEEN PRONOUNCED IN THE OPEN COURT, NO SEPARATE NOTI CES SHALL BE SENT TO THE PARTIES. 11. IN THE RESULT, ALL THE SEVEN MISCELLANEOUS PET ITIONS IN M.P. NOS. 46- 52/COCH/2016 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COU RT ON 06-09-2016. SD/- SD/- ( . ) (GEORGE GEORGE K.) ( . . ) (B. P. JAIN) /JUDICIAL MEMBER /ACCOUNTANT MEMBER ( /PLACE: /COCHIN 4 /DATED: 06 TH SEPTEMBER, 2016 GJ/ 3 , *0' 5''0 /COPY TO: 1. () /E.N. GOPAKUMAR, EDATHIPARAMBIL HOUSE, PALISSERY, P O ANNAMANADA, THRISSUR-680 741. M.P. NOS.46-52/COCH/2016 14 2. *+ () /THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIR CLE-1, ERNAKULAM. 3. .6 0 ( )/THE COMMISSIONER OF INCOME-TAX(APPEALS)-I, KOCHI, 4. .6 0 /THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. '78 *0 , /THE DR/ITAT, COCHIN BENCH. 6. 8: ;/ /GUARD FILE. 3. /BY ORDER < /ASSISTANT REGISTRAR / . =1 . > . =1 ., /I.T.A.T., COCHIN