Mohd. Atique, Bhopal V. The ACIT 3(1), Bhopal

MA 49/IND/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3202 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 19-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: GIRISH AGRAWAL
• Keywords: Unexplained expenditure; Loose papers
• Section: 133A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER MA NO. 49/IND/2013 ARISING OUT OF IT(SS)A NO. 316/IND/2012 A.Y. 2007-08 MOHD. ATIQUE BHOPAL PAN AGW[A 6383N ::: APPLICANT VS. ASSTT.COMMR. OF INCOME TAX 3(1) BHOPAL ::: RESPONDENT APPLICANT BY SHRI GIRISHAGRAWAL RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 10.7.2015 DATE OF PRONOUNCEMENT 1 3 .7.2015 O R D E R PER SHRI D.T. GARASIA, AM THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION ON THE GROUND THAT WHILE DECIDING THE ISSUE THE TRIB UNAL 2 HAS DECIDED THE ISSUE RELATING TO UNEXPLAINED INCOME WHEREIN THE TRIBUNAL HAS HELD THAT THE AMOUNT RECEIVED AS WELL AS THE AMOUNT PAID CANNOT BE THE INCOME OF THE ASSESSEE. THE TOTAL OF THESE ENTRIES INDICATED THE REC EIPT OF CASH OF RS.17,09,800/-WHEREAS SUCH PAYMENT WAS RS.33,12,000/-. THUS, THERE WAS TOTAL CASH PAYMENT OF RS.33,12,000/-. THEREFORE, THE AMOUNT PAID BY THE ASSESSEE IN EXCESS WHICH HE RECEIVED WAS EXPLAINED INC OME AND THE TRIBUNAL HAS CONFIRMED THE ADDITION OF RS.16,02,000/- IN PLACE OF RS.50,91,800/-. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED TH AT AS PER THE BOOKS OF ACCOUNTS NN AND AA PRODUCED WERE DIFFERENT THAT PRODUCED BEFORE THE ASSESSING OFFICER . THIS TRANSACTION, WHICH WAS REFLECTED IN THE SEIZED DIARY, W AS NOT COVERED BY CASH BOOK. THEREFORE, THE CONFIRMATION OF ADDITION OF RS. 17,09,800/- IS NOT LEGAL. THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS ADDED BOTH TH E 3 AMOUNTS OF RS. 17,09,800/- AND RS. 33,12,000/- WHILE THE TRIBUNAL HAS ADDED RS. 16,02,200/-. THE LEARNED COUNS EL FOR THE ASSESSEE SUBMITTED THAT NO CASH WAS GIVEN TO OT HERS WHICH IS NOT ACCOUNTED FOR. THE CASH WAS GIVEN OUT OF CASH IN HAND. THEREFORE, IF THIS ARGUMENT IS CONSIDERED, T HERE WILL BE NO ADDITION BUT WHILE DECIDING THIS ISSUE, T HE TRIBUNAL HAS NOT CONSIDERED THIS ASPECT. 3. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT IN PAR A 12 OF THE ORDER, THE TRIBUNAL HAS SPECIFICALLY CLARIFIE D THAT NAVIN NAV YUVAK (NN) AND REAL ESTATE (AA) WERE CONTROLLED BY ONE MR. MOHD. ATIQ AND THE TRIBUNAL HAS DISCUSSED T HE ISSUE IN DETAIL IN ITS ORDER AND HAS CONSIDERED ALL TH E ASPECTS AND CONFIRMED THE ADDITION OF RS. 16,02,200/-. THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. 4. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PARTIES . LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT WHILE DECIDING THE ISSUE, THE TRIBUNAL HAS CONSID ERED 4 THE RECONCILIATION CHART. WE FIND THAT THE TRIBUNAL HAS DISCUSSED ALL THE ISSUES IN DETAIL IN PARA 12 OF ITS OR DER WHICH READS AS UNDER :- 21). THE CLAIM OF THE ASSESSEE IS THAT THESE CASH TRANSACTIONS WERE WITH RESPECT TO NAVIN NAV YUVAK (NN) AND A.A. REAL ESTATE (AA). IT WAS CONTENDED THAT THE ASSESSEE (MOHD. ATIQUE) CONTROLS BOTH THE CONCERNS AND USED TO KEEP THE CASH OF BOTH THE CONCERNS WITH HIM. THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER. THE LEARNED FIRST APPELLATE AUTHORITY IN PARA 7.2 PAGE 12 OBSERVED AS UNDER :- THE PRINTOUT SUBMITTED BEFORE ME IS PREPARED ON COMPUTER JUST TO SUPPORT THE THEORY THAT THE EXPENSES ARE ENTERED IN THE CASH BOOK OF THE TWO CONCERNS. THE CASH BOOK SUBMITTED BEFORE THE A.O. DID NOT HAVE THESE 5 ENTRIES. THIS CLEARLY SHOWS THAT THE PRINTOUT OF CASH BOOK SUBMITTED BEFORE ME ARE NOT RELIABLE. IN VIEW OF THE ABOVE, IT IS HELD THAT THE ADDITION OF RS.50,21,800/- FOR UNACCOUNTED EXPENDITURE IS VALID HENCE THE SAME IS CONFIRMED. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ACCOUNTS WERE MAINTAINED ON COMPUTER AND THE PRINTOUT OF THE SAME WAS DULY PRODUCED BEFORE THE CIT(A). ON THE OTHER HAND, THE LD. DR SUPPORTED TWO ORDERS OF LOWER AUTHORITIES. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT IN THE A.Y. 2007- 08 AN ADDITION OF RS.50,21,800/- WAS MADE. WITH REFERENCE TO 16 THE ABOVE, THE ADDITION MADE IN RESPECT OF LOOSE PAPERS FOUND WHEREIN THE CASH PAYMENT OF RS. 17,09,800/- AND CASH RECEIPT OF RS. 6 33,12,000/- WAS COMPUTED. THE ASSESSING OFFICER HAS MADE THE ADDITION ON THE BASIS OF ENTRIES IN THE BOOK MARKED AS BS-1. THE TOTAL OF SUCH ENTRIES UNDER TWO HEADS OF RECEIPT AND PAYMENT WAS RS. 50,21,800/- (17,09,800 + 33,12,000). IT WAS ALSO EXPLAINED BEFORE THE ASSESSING OFFICER THAT BHAI JAN IS THE NICK NAME OF THE ASSESSEE WHO IS ELDEST SON OF MOHD. SHAFIQ AND ALL KNOWN PERSONS CALL HIM BY THAT NAME. DURING THE COURSE OF SURVEY, CASH BOOK OF M/S NAVIN NAV YUVAK (IN SHORT NN) AND M/S A.A. REAL ESTATE (IN SHORT AA) WAS ALSO IMPOUNDED U/S 133A ON 21.9.2006. IT WAS ALSO EXPLAINED THAT THESE WERE CASH TRANSACTIONS WITH NN/AA. AS THE ASSESSEE, M/S MOHD. ATIQU LOOKING AFTER THE WORK OF BOTH THE CONCERNS 7 AND ALSO USED TO KEEP CASH OF BOTH THE CONCERNS, THESE TRANSACTIONS WERE FOUND RECORDED ON THE LOOSE PAPER RECOVERED FROM THE PREMISES OF THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER INFERRED THAT THESE TRANSACTIONS ARE IN THE NATURE OF EXPENSES WHICH WERE NOT FOUND RECORDED IN THE RESPECTIVE BOOKS OF THESE CONCERNS. WE FIND THAT THE FINDINGS RECORDED BY 17 THE ASSESSING OFFICER TO THE EFFECT THAT THE CASH BOOK DOES NOT SUPPORT ENTRIES IN THE PAPERS IS NOT CORRECT INSOFAR AS COPIES OF CASH BOOK OF NN/AA WERE FILED BEFORE THE LOWER AUTHORITIES. THE ASSESSEE ALSO FILED RECONCILIATION STATEMENT BEFORE THE CIT(A). WITHOUT VERIFYING THE RECONCILIATION STATEMENT AND ITS CORRECTNESS, THE CIT(A) CONFIRMED THE ADDITION 8 MADE BY THE ASSESSEE. AS PER OUR CONSIDERED VIEW, THE AMOUNT RECEIVED AS WELL AS AMOUNT PAID CANNOT BE THE INCOME OF THE ASSESSEE. THE TOTAL OF THESE ENTRIES INDICATING RECEIPT OF CASH WAS RS. 17,09,800/- WHEREAS TOTAL OF SUCH CASH PAYMENT WAS RS. 33,12,000/-. THUS, OUT OF THE TOTAL CASH PAYMENT OF RS. 33,12,000/-, A SUM OF RS.17,09,800/- ITSELF WAS THE RECEIPT INDICATED ON THE SAME SET OF PAPERS, THEREFORE, AS PER OUR CONSIDERED VIEW, AMOUNT PAID BY THE ASSESSEE IN EXCESS OF WHAT HE HAS RECEIVED, CAN BE TREATED AS HIS UNEXPLAINED INCOME. THUS, THE MAXIMUM ADDITION WHICH CAN BE MADE WORKS OUT TO BE RS. 16,02,200/- (RS.33,12,000/- (-) RS. 17,09,800/-). ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO RESTRICT THE ADDITION TO 9 THE EXTENT OF RS. 16,02,200/- IN PLACE OF RS. 50,91,800/-. 5. WE FIND THAT THE POWER OF THE TRIBUNAL TO REVIEW I TS ORDER HAS BEEN EXPLAINED BY HON'BLE MADRAS HIGH COURT IN THE CASE OF EXPRESS NEWSPAPERS LTD. VS. DCIT (2010) 1 86 TAXMAN 111 (MAD.). THE RELEVANT PORTION OF THE SAID JUDGMENT IS REPRODUCED AS UNDER :- FROM THE VARIOUS JUDGMENTS OF THE SUPREME COURT ABOVE REFERRED TO AND OTHER HIGH COURTS, IT IS CLEAR THAT THE TRIBUNALS POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. WHAT CAN BE TERMED AS MISTAKE APPARENT ? MISTAKE IN GENERAL MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING; IT IS AN ERROR; A FAULT, 10 AMISUNDERSTANDING, A MISCONCEPTION. MISTAKE IN TAXATION LAWS HAS A SPECIAL SIGNIFICANCE. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IS THIN AND INDISCERNIBLE. APPARENT MEANS VISIBLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVIOUS PLAIN, OPEN TO VIEW, EVIDENT, APPEARS, APPEARING AS REAL AND TRUE, CONSPICUOUS, MANIFEST, SEEMING. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EXPENDITURE-FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. IF SUCH A MISTAKE APPARENT ON THE FACE OF RECORD IS BROUGHT TO THE NOTICE, SECTION 254(2) EMPOWERS THE TRIBUNAL TO AMEND THE ORDER PASSED UNDER SECTION 254(1). AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER. 11 WHAT IS MISTAKE APPARENT ON THE FACE OF THE RECORD OR WHERE DOES A MISTAKE CEASE TO BE MERE MISTAKE AND BECOME MISTAKE APPARENT ON THE FACE OF THE RECORD IS RATHER DIFFICULT TO DEFIN E PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY NATURE AND IT MUST BE DISCERNIBLE FROM THE FACTS OF EACH CASE BY JUDICIOUSLY TRAINED MIND. MERE EXISTENCE OF A MISTAKE OR ERROR WOULD NOT PER SE RENDER THE ORDER AMENABLE FOR RECTIFICATION, BUT SUCH A MISTAKE MUST BE ONE WHICH MUST BE MANIFEST ON THE FACE OF THE RECORD. WE RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HON'B LE MADRAS HIGH COURT (SUPRA), ARE OF THE VIEW THAT THE SC OPE AND AMBIT OF APPLICATION OF SECTION 254(2) OF THE ACT I S VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF T HE MISTAKE APPARENT FROM RECORD. THE RECALLING OF THE ENTI RE 12 ORDER WOULD MEAN PASSING A FRESH ORDER. THAT DOES NOT APPEAR TO BE LEGISLATIVE INTENT. WHAT THE TRIBUNAL IS EN TITLED TO DO IN EXERCISE OF POWER U/S 254(2) OF THE ACT IS TO RECTIFY AN APPARENT MISTAKE AVAILABLE FROM RECORD AND NOT TO REVIEW ITS OWN ORDER OR TO RE-WRITE A FRESH JUDGMENT . WE FIND THAT THE TRIBUNAL HAS NO INHERENT POWER OF REVIEW . THEREFORE, WE FIND NO MERIT IN THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND DISMISS THE SAME. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. PRONOUNCED IN OPEN COURT ON 13 TH JULY, 2015 SD SD (B.C. MEENA) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER 13 TH JULY, 2015 DN/-1010