Kantilal K Chheda, Valsad V. ACIT, Valsad Circle, Valsad

MA 51/SRT/2022

AI Insights

The case involves Kantilal Khemjibhai Chheda, the appellant, who filed a Miscellaneous Application against the order of the Income Tax Appellate Tribunal dated 24.08.2022, concerning the assessment year 2014-15. The application was based on the grounds that the Tribunal had not considered all evidences and explanations during the original hearing, which constituted a mistake apparent from the record. The Departmental Representative argued that the Tribunal's decision was made on merit and thus should not be revisited. The Tribunal concluded that the original order was comprehensive and based on the factual position of the case, and thus dismissed the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301718 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-12-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 15-11-2022
• Other Referred Cases: CIT vs. S. Khader Khan Son (2012) 25 taxmann.com 413 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retraction
• Section: 133A; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM Miscellaneous Application No.51/SRT/2022 [Arising out of ITA No.128/SRT/2019] Assessment Year: (2014-15) (Physical Court Hearing) Kantilal Khemjibhai Chheda, Shop No.1, Sannary Nx., Old Veg. Market, Valsad, Valsad-396001. Vs. The CIT, Valsad Circle, Valsad. (Appellant) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABMPC1833G Assessee by Shri S. D. Chheda, AR Respondent by Shri Vinod Kumar, Sr.DR Date of Hearing 23/12/2022 Date of Pronouncement 24/02/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: By way of captioned application, the assessee has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961(in short ‘the Act’) has crept in the order of the Tribunal dated 24.08.2022( vide ITA No.128/SRT/2019). 2. The contention of the Ld. Counsel for the assessee in this Miscellaneous Application is that in spite of the fact that all evidences and explanations were filed and specific queries were asked and satisfactorily answered before the Hon. Bench and non-consideration of the arguments of the assessee constitute a mistake apparent from the record, hence Tribunal order may be rectified. 3. On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue submitted that Tribunal has passed order on merit, hence there is no mistake in the order of Tribunal, therefore order of Tribunal should not be recalled for fresh adjudication again on merit. Page | 2 MA.51/SRT/2022/AY.2014-15 Kantilal Khemjibhai Chheda 4. We have heard both the parties. We note that after considering the assessee’s submissions and submissions of the Ld. DR for the Revenue, the Tribunal has concluded the issue as under: “5. We have heard both the parties. We note that assessee made voluntarily disclosure of Rs.56,06,492/-. However, later on, when the assessee filed return of income then he has disclosed Rs.41,93,332/- on account of voluntarily disclosure. Therefore, assessee made partly compliance so far voluntarily disclosure is concerned. We note that assessee has challenged the addition of Rs.15,95,260/- related to disclosure made in the survey u/s 133A of the Act (Rs.14,13,160/- on account of retraction of disclosed stock and Rs.1,82,000/- on account of fall in gross profit. Learned DR for the Revenue submitted that assessee declared Rs.47,65,992/- as unaccounted investment in stock on the basis of excess stock found at the time of survey proceedings, hence findings of the assessing officer should be confirmed. On the other hand, ld Counsel for the assessee submitted that purchase of Rs.1,79,74,977/- shown till the date of survey was incorrect as actual purchases was Rs.1,96,51,829/-, thus, the assessee claimed that there was purchases worth Rs.16,76,852/- which could not be considered and shown to the survey team leading to excess disclosure of income under the unaccounted stock, hence ld Counsel prays that addition made by the assessing officer should be confirmed. We note that Assessing Officer has controverted this contention in the assessment order vide para-5.6 to 5.8 wherein the claim of the assessee for genuine purchase was rebutted. The Assessing Officer has stressed that the assessee could have stated in the statement recorded during the survey that some purchase bills were not available and reconciliation could have been filed after survey proceedings. However, the assessee made the new claim of purchases only at the time of assessment proceedings. During the course of survey proceedings, the survey team did not find any such purchase bills neither the assessee brought forth any evidences or made any statements supporting such claim of purchases. The Ld. Counsel further contended that the claim for purchases are duly supported by purchase bills and pertains to pre-survey period. The ld Counsel also relied on the decision of Hon'ble Supreme Court in the case of CIT vs. S. Khader Khan Son (2012) 25 taxmann.com 413 (SC), wherein it was held that the admission on the date of survey cannot be conclusive and the assessee has the right to prove that such admission was incorrect. The Ld Counsel also referred to the CBDT Circular No.286 dated 10.03.2003 on the issue of declaration taken in survey u/s 133A of the Act and stated that department had no corroborative evidence to substantiate the impugned undisclosed income. 6 We note that ld CIT(A), based on these facts, sustained the addition of Rs.14,13,160/-. With regard to addition of Rs.1,82,097/- on account of fall in gross profit, the Assessing Officer has not given specific reason for such Page | 3 MA.51/SRT/2022/AY.2014-15 Kantilal Khemjibhai Chheda changed percentage of gross profit and hence the addition of Rs.1,82,079/- was deleted by ld CIT(A). 7.Thus, we note that total voluntarily disclosure was at Rs.56,06,492/- however while filing return of income, the assessee accepted voluntarily disclosed amount to the extent of Rs.41,93,332/- and hence denied the balance amount of Rs.14,13,160/- (Rs.56,06,492 -Rs.41,93,332). The assessee did not submit any valid explanation that how and why he did not accept Rs.14,13,160/- and why it is not a part of total disclosure. Once the substantial amount of Rs.41,93,332/- was accepted by assessee then for balance amount of Rs.14,13,160/- (Rs.56,06,492 -Rs.41,93,332), the assessee should not make any excuse. That is, for balance amount of Rs.14,13,160/-, the assessee argued that as per decision of Hon'ble Supreme Court in the case of S.Khader Khan Son (supra), admission on the date of survey cannot be conclusive evidence. Before us, the assessee did not explain with cogent evidence, that why he has accepted Rs.41,93,332/- and how and why he is not accepting balance amount of Rs.14,13,160/-, whereas nature of both the amounts are same. We are of the view that Judgment cited by ld Counsel in case of S.Khader khan Son(supra) does not help the assessee to delete part addition of Rs.14,13,160/-, as the said amount is part of total disclosure made by the assessee and the assessee accepted the same and paid the taxes thereon. We note that total disclosure made by assessee was to the tune of Rs. Rs.56,06,492/- and out of that substantial amount of Rs.41,93,332/- was accepted by assessee then for balance amount of Rs.14,13,160/- (Rs.56,06,492 -Rs.41,93,332), the assessee should not make any excuse. Besides, the assessee has not distinguished the said amount of Rs.14,13,160/- with cogent evidence that it is different from total disclosure. Since, the nature of voluntarily disclosure in respect of both the amounts are same, hence ld CIT(A) has rightly confirmed the addition. That being so, we decline to interfere with the order of Id. CIT(A) and his order on this addition is, therefore, upheld and the grounds of appeal of the assessee is dismissed. 8. In the result, the appeal filed by the assessee is dismissed.” 5. We have gone through the above finding of the Tribunal and observed that Tribunal has considered the submission of the Ld. Counsel for the assessee, as well as submission of Ld. DR for the Revenue and adjudicated the issue on merit. Such adjudication made by the Tribunal on merit cannot be reviewed or altered. Hence, there is no mistake apparent on record. We note that the conclusion reached by the Tribunal is based on the factual position of the assessee`s case, hence there is no mistake apparent on record. Review proceedings imply proceedings where a party, as of right, can apply for Page | 4 MA.51/SRT/2022/AY.2014-15 Kantilal Khemjibhai Chheda reconsideration of the matter, already decided upon, after a fresh hearing on the merits of the controversy between the parties, such remedy is certainly not provided by section 254(2) the Income Tax Act, 1961. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re- argue the whole matter, which is beyond the scope of the section 254(2) of the Act. Therefore, considering the facts and circumstances of the case, we dismiss the Miscellaneous Application of the assessee. 6. In the result, Miscellaneous Application filed by assessee is dismissed. Order is pronounced on 24/02/2023 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 24/02/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat