Sh. Mani Ram Prop. M/s. Mani Ram Rameshwar Lal, SRIGANGANAGAR V. AO, SRIGANGANAGAR

MA 5/JODH/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0585 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-06-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 15-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C AGARWAL
• Keywords: Rectification of order
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER MA NO.5/JODH/2011 (ARISING OUT OF ITA NO. 527/JODH/2010) ASSESSMENT YEAR : 2007-08 PAN: AAZPG 6159 R SHRI MANI RAM VS. THE ITO PROP. MANI RAM RAMESHWARL LAL WARD- 2 98, NEW DHAN MANDI, SRIGANGANAGAR SRIGANGANAGAR (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.C. AGARWAL DEPARTMENT BY : SHRI MAHESH KUMAR DATE OF HEARING : 06-06-2013 DATE OF PRONOUNCEMENT : 06-06-2013 ORDER PER N.K. SAINI, A.M. THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E HAS ARISEN OUT OF THE ORDER DATED 9- 09-2011 IN ITA NO.527/JODH/2010. 2.1 THE ASSESSEE VIDE THIS APPLICATION HAS STATED T HAT THE TRIBUNAL WHILE PASSING THE ORDER HAD MISSED OUT TO FOLLOW THE FOLLOWING JUDGEMNT CIT ED DURING THE COURSE OF HEARING. 1. RAJSHREE SYNTHETICS PVT. LTD. VS CIT, 256 ITR 331 (RAJ.) 2. KANEHYA LAL JANGID VS ACIT, 217 CTR 354 (RAJ.) 3. CIT VS DAULAT RAM RAWATMAL, 87 ITR 34 (SC) 4. R.B.N.J. NAIDU VS CIT, 29 ITR 194 MP) 5. DCIT VS ROHINI BUILDERS, 256 ITR 360 (GUJ) 6. CIT VS LOVELY EXPORTS LTD. 216 CTR 195 (SC) 7. NEMICHAND KOTHARI VS CIT, 263 ITR 254 (GUJ.) 8. TOLA RAM DAGA VS CIT, 59 ITR 632 (ASSAM) 2 2.2 IT IS FURTHER STATED THAT WHILE DECIDING 3RD GR OUND OF APPEAL RELATING TO CASH CREDITORS, THE ITAT WRONGLY CONSIDERED THE BANK ACCOUNT NO. AS CHEQUE NO. AND CAME TO THE CONCLUSION THAT THEY DID NOT TALLY. ACCORDINGLY , IT IS SUBMI TTED THAT MISTAKE IS APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL . 2.3 DURING THE COURSE OF HEARING, THE LD. COUNSEL F OR THE ASSESSEE REITERATED THE CONTENTS OF THE MISC. APPLICATION AND ALSO FURNISHED THE WRITTE N SUBMISSIONS WHICH READ AS UNDER:- 1. IN THE APPEAL BEFORE THE HON'BLE TRIBUNAL THE ASSESSEE HAS DISPUTED THE ADDITION OF RS. 27,85,000/- MADE BY AO U/S 68 OF TH E I.T. ACT 1961. THE ADDITION HAS BEEN CONFIRMED BY THE HON'BLE TRIBUNAL FOR THE REAS ONS RECORDED IN PARA 11 PAGE 13 OF THE ORDER. 2. THAT ON 21/11/2011 THE APPLICANT MOVED AN APPLICATION U/S 254(2) FOR RECTIFICATION OF MISTAKE WHICH ARE APPAR ENT ON THE FACE OF RECORD. IN THIS RESPECT MY HUMBLE SUBMISSION IN BRIEF ARE AS UNDER: - (A) IN RESPECT OF JAGDISH PRASAD S/O SHRI PANNA RAM (I) IN THIS CASE THE APPELLANT FIRST GAVE A LOAN OF RS. 3,00,000/- ON 20/04/2006 BY CHEQUE NO. 036235 FROM HIS BANK ACCOU NT BEARING NO. 218166 WITH PUNJAB NATIONAL BANK. THIS CHEQUE WAS CREDITED TO THE ACCOUNT OF SHRI JAGDISH PRASAD THE DEBTOR IN HIS BANK ACCOUNT. IN S UPPORT OF ABOVE THE ASSESSEE IS FILED THE COPY OF BANK ACCOUNT OF THE DEBTOR SHR I JAGDISH PRASAD S/O SHRI PANNA LAL. THE PERUSAL OF THE BANK A/C OF SHRI JAGD ISH SHOWS THAT WHILE CREDITING THE AMOUNT OF 3,00,000/- ON 20/04/2006 TH E BANK HAS WRITTEN THE ACCOUNT NUMBER OF THE APPELLANT BEARING NO. 218166 N PLACE OF CHEQUE NUMBER BECAUSE THE BANK ACCOUNT OF THE DEBTOR & CREDITOR W AS WITH THE SAME BANK. IN LIGHT OF ABOVE IT IS CLEAR THAT THE APPELLANT FI RST ADVANCE A RS. 3,00,000/- TO THE DEBTOR SHRI JAGDISH PRASAD ON 20/ 04/2006. SHRI JAGDISH ISSUED A CHEQUE OF RS. 4,37,000/- ON 06/07/2006 BY CHEQUE NO . 988508 FROM HIS BANK ACCOUNT WHICH IS ALSO EVIDENT FROM THE COPY OF BANK ACCOUNT OF THE ASSESSEE AS WELL AS OF SHRI JAGDISH PRASAD. IN LIGHT OF ABOVE THE FINDING OF THE HON'BLE TRIBUN AL IN PARA 11 CONTAINS A MISTAKE WHICH IS APPARENT ON THE FACE OF RECORD AND REQUIRES TO BE RECTIFIED. (B) IN RESPECT OF SHRI HANUMAN PRASAD S/O SHRI SAHI RAM. (I) THE PERUSAL OF THE COPY OF ACCOUNT AND THE BANK STATEMENT WHICH IS ON RECORD SHOWS THAT ON 01/04/2006 THE ASSESSEE HAD A CREDIT BALANCE OF RS. 3,19,000/- . 3 (II) THE PERUSAL OF ACCOUNT FURTHER SHOWS THAT ON 0 9/05/2006 THE ASSESSEE ISSUED A CHEQUE BEARING NO. 036242 DRAWN ON PUNJAB NATIONAL BANK FOR RS. 6,35,000/-. THIS CHEQUE IS CREDITED IN THE ACCOUNT OF SHRI HANUMAN PRASAD IN HIS BANK ACCOUNT MAINTAINED WITH PUNJAB NATIONAL BANK O N 09/05/2006 AND THE BANK HAS WRITTEN THE BANK ACCOUNT NUMBER OF THE ASSESSEE BEARING NO. 218166 IN PLACE OF CHEQUE NUMBER PERHAPS DUE TO TRANSFER OF F UNDS FROM ONE ACCOUNT TO ANOTHER ACCOUNT OF SAME BRANCH. FROM THE ABOVE IT IS CLEAR THAT THE ASSESSEE ADVANC ED A SUM OF RS. 6,35,000/- TO SHRI HANUMAN PRASAD BY ACCOUNT PAYEE CHEQUE BEARING NUMBER 036242 BUT THE BANK IN THE ACCOUNT OF SHRI HANUMAN PRASAD WRITTEN THE ACCOUNT NUMBER 218166 OF THE ASSESSEE IN PLACE OF C HEQUE NUMBER AND BECAUSE OF THIS FACT THERE IS A APPARENT MISTAKE IN THE FINDING RECORDED BY THE HON'BLE TRIBUNAL WHICH REQUIRES TO BE RECTIFIED, ( C) IN RESPECT OF SHRI JODHA SINGH S/O MAHENDRA SINGH. (I) THE PERUSAL OF COPY OF ACCOUNT WHICH IS ON RECO RD SHOWS THAT THE ASSESSEE HAD A CREDIT BALANCE OF RS. 2,47,553.03 ON 01/04/20 06. THEREAFTER ON 15/05/2006 THIS ACCOUNT WAS CREDITED BY A SUM OF RS. 51,601.40 IN RESPECT OF SALE PROCEEDS OF WHEAT. (II) THAT ON 20/09/2006 THE ASSESSEE ISSUED A CHEQ UE BEARING NUMBER 039607 OF RS. 1,75,000/- FROM HIS BANK ACCOUNT WITH PNB BANK. THIS CHEQUE IS CREDITED IN THE ACCOUNT OF THE CREDITOR ON 20/09/20 06 AND INSTEAD OF CHEQUE NUMBER THE WORD TR HAS BEEN USED BECAUSE THE ACCOUN T OF THE CREDITOR IS ALSO WITH THE SAME BRANCH OF PUNJAB NATIONAL BANK. (III) THE APPELLANT FURTHER ISSUED A CHEQUE BEARIN G NUMBER 039637 OF RS. 80,000/- ON 26/10/2006 DRAWN ON HIS BANK ACCOUNT WI TH PUNJAB NATIONAL BANK. THIS CHEQUE IS ALSO CREDITED IN THE ACCOUNT OF SHRI JODHA SINGH AND THE WORD TR (TRANSFER FROM ONE ACCOUNT TO OTHER ACCOUNT WITH TH E SAME BRANCH) WAS USED BY THE BANK. (IV) THAT ON 22/12/2006 THE APPELLANT RECEIVED CHE QUE OF RS. 2,75,000/- BEARING NUMBER 126686 FROM SHRI JODHA SINGH WHICH I S ALSO APPEARING IN HIS BANK ACCOUNT. FROM THE ABOVE IT IS CLEAR THAT THE FINDING RECORDE D BY THE HON'BLE TRIBUNAL CONTAINS A MISTAKE WHICH IS PATENT FROM THE FACE OF RECORD. (D) IN RESPECT OF SHRI JAGROOP SINGH S/O SHRI SAN TA SINGH. (I) THE AO MADE AN ADDITION OF RS. 2,50,000/- FOR CREDIT APPEARING IN THE NAME OF SHRI JAGROOP SINGH S/O SHRI SANTA SINGH. TH E ASSESSEE SUBMITTED THAT IN THE ACCOUNT OF SHRI JAGROOP SINGH S/O SANTA SINGH T HERE IS NO SUCH CREDIT ENTRY AND IN SUPPORT OF THIS HE FILED COPY OF ACCOUNT WHI CH IS AVAILABLE ON RECORD. THE ID AO MADE THE ADDITION IN THE NAME OF THIS PERSON ON THE PLEA THAT ON 22/12/2006 THERE IS A CREDIT ENTRY OF RS. 2,50,000/ - IN THE ACCOUNT OF SHRI GURU SEWAK SINGH S/O SHRI JAGROOP SINGH. THE APPELLANT S UBMITTED THAT, TO SHRI 4 GURU SEWAK SINGH HE ADVANCED A SUM OF RS. 2,28,000/ - ON 25/09/2006 BY CHEQUE NUMBER 039612 AND RECEIVED A SUM OF RS. 2,50,000/- ON 22/12/2006 BY CHEQUE NUMBER 127863 AND TO SUPPORT HE FILED A COPY OF HIS ACCOUNT AS APPEARING IN HIS BOOKS OF ACCOUNT ALONG WITH HIS BANK STATEMENT. IN LIGHT OF ABOVE THE FINDING OF THE HON'BLE TRIBUN AL CONTAIN AN APPARENT MISTAKE THAT THE ASSESSEE HAS NOT ADVANCED AMOUNT E ARLIER TO HIM. 3. THAT THE OBSERVATION OF THE HON'BLE TRIBUNAL IN PARA 10 PAGE 10 OF THE ORDER ALSO CONTAIN A MISTAKE WHICH IS APPARENT ON THE FACE OF RECORD. THE ASSESSEE SUBMITTED COPY OF HIS BANK ACCOUNT BEFORE THE AO AN D WAS PART OF THE RECORD. TO BRING THE FACT ON RECORD THE ASSESSEE OBTAINED A CERTIFIE D COPY FROM THE AO AND PLACED THE SAME ALONG WITH APPLICATION U/S 254(2) TO PROVE THA T COPY OF BANK STATEMENT WAS PLACED ON RECORD. 4. THAT THE WORD 'CP' USED IN THE BANK STATEMENT OF THE CREDITORS AND DEBTORS MEANS THE CASH PAYMENT AND NOT CHEQUE PURCH ASED AS OBSERVED BY THE HON'BLE TRIBUNAL. THIS IS ALSO A FACTUAL MISTAKE WHICH CONT AINED IN THE ORDER OF THE TRIBUNAL AND REQUIRES TO BE RECTIFIED AS OTHER ADDITIONS WER E CONFIRMED BECAUSE OF THIS WORD CP. 5. THAT TO SUPPORT THE DELETION OF ADDITION THE AR RELIED ON SEVERAL DECISIONS AS MENTIONED BELOW WHICH HAD DIRECT BEARI NG ON THE ISSUE BUT THE SAME HAS NOT BEEN CONSIDERED BY THE HON'BLE TRIBUNAL DUE TO OVER SITE WHICH ALSO CONSTITUTE A MISTAKE ON THE FACE OF RECORD: - A] CIT V/S DAULAT RAM RAWAT MAL (87 ITR 349) B] R.B.N.J NAIDU V/S CIT (29 ITR 194) C] RAJSHREE SYNTHETIC PVT. LTD. V/S CIT (256 ITR 331) D] DCIT V/S ROHINI BUILDERS (256 ITR 360) E] KANHAIYA LAI JANGID V/S ACIT (217 ITR 354) F] CIT V/S LOVELY EXPORTS PVT. LTD. (216 CTR 195) IN LIGHT OF ABOVE IT IS CLEAR THAT ORDER OF THE HON'BLE TRIBUNAL CONTAINS NUMBER OF FACTUAL MISTAKES WHICH ARE APPARENT ON FA CE OF RECORD AND BECAUSE OF FACTUAL MISTAKES THE CONCLUSION DRAWN REQUIRES TO B E RECTIFIED AND FOR THIS PURPOSE I REQUEST THAT ORDER PASSED EARLIER MAY KINDLY BE REC ALLED IN LIGHT OF THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF SHRI CH AMPA LAL CHOPRA V/S STATE OF RAJASTHAN REPORTED IN 257 ITR 74 IN WHICH THE HON'B LE RAJASTHAN HIGH COURT HELD AS UNDER: - 'SECTION 254 OF THE INCOME-TAX ACT, 1961 - APPELLAT E TRIBUNAL - POWERS OF-ASSESSMENT YEAR 1978-79 WHETHER IN A GIVEN CAS E WHERE FACTUAL MISTAKE IS SO APPARENT THAT IT BECOMES NECESSARY TO CORRECT SA ME, TRIBUNAL WOULD BE JUSTIFIED IN NOT ONLY CORRECTING SAID MISTAKE BY WA Y OF RECTIFICATION BUT IF JUDGMENT HAS PROCEEDED ON BASIS OF THAT FACT, IT WO ULD BE JUSTIFIED IN RECALLING SUCH ORDER AND POSTING FOR HEARING' 5 2.4 IN HIS RIVAL SUBMISSIONS, THE LD. D.R. FOR THE REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WHIC H COULD BE RECTIFIED U/S 254(2) OF THE ACT. IT WAS STATED THAT ONLY MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED AND THERE IS NO PROVISION TO REVIEW THE ORDER. IT WAS FURTHER STATE D THAT THE ORDER DATED 09-09-2011 PASSED BY ITAT IS A WELL REASONED ORDER, THERE IS NO MISTA KE AND THE ASSESSEE WANTS THE ORDER TO BE REVIEWED WHICH IS NOT PERMISSIBLE. 2.5 WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CA SE, THE ASSESSEE POINTED OUT THAT WHILE DECIDING THE ISSUE AND COMING TO THE CONCLUSION THA T THE AGRICULTURISTS HAD TAKEN LOANS FROM HIM AND THE AMOUNT CREDITED ON RECEIPT OF LOAN/ AM OUNTS ADVANCED EARLIER WAS NOT PROVED FROM THE BANK ACCOUNT. IT IS ALSO NOTICED THAT THE TRIBUNAL HAS MENTIONED THAT THE CHEQUE NO VIDE WHICH AMOUNT WAS DEPOSITED IN THE BANK ACCOU NT AND CHEAUE NO. RECORDED IN THE BOOKS OF ACCOUNT DID NOT TALLY. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT ITAT HAD MENTIONED THE BANK ACCOUNT NO. AS CHEQUE NO. BY MIS TAKE AND THEREAFTER CONCLUDED THAT CHEQUE NOS. DID NOT TALLY. OUR ATTENTION WAS DRAWN TOWARDS PAGE NO. 11 OF THE TRIBUNAL ORDER DATED 9-09-2011. ON THE SAID PAGE, IT IS MENT IONED THAT IN THE ACCOUNT OF SHRI JAGDISH PRASAD, AN AMOUNT OF RS. 3.00 LACS WAS DEPOSITED ON 20-04-2006 VIDE CHEQUE NO.218166 WHEREAS IN THE ASSESEE'S BANK ACCOUNT CHEQAUE NO. I S 036235. HENCE, CHEQUE NOS. ARE NOT TALLIED. IT IS NOTICED THAT CHEQUE NO. 218166 WAS WRONGLY MENTIONED. IN FACT, THIS WAS THE BANK ACCOUNT NO. SIMILAR WAS THE POSITION OF SHRI H ANUMAN PRASAD. IN THE INSTANT CASE, WE FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE THAT WHILE COMING TO THE CONCLUSION THAT CHEQUES WERE NOT TALLIED AND BANK ACCOUNT NO. WAS M ENTIONED IN PLACE OF CHEQUE NO. SINCE IT IS A MISTAKE APPARENT FROM RECORD, WE THEREFORE, ALLOW THE MISC. APPLICATION OF THE ASSESSEE AND ORDER OF THE TRIBUNAL DATED 09-09-2011 IS RECALLED TO DECIDE THE ISSUE RELATING TO CASH CREDIT ONLY. THE REGISTRY IS DIRECTED TO RE FIX THE CASE IN DUE COURSE, 6 3.0 IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06-0 6-2013.) SD/- SD/- (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 6 TH JUNE, 2013 MISHRA COPY TO:- 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE ASSISTANT REGISTRAR ITAT, JODHPUR