The Asstt.Commissioner of Income-tax, Amritsar. V. Sh. Rishi Grover, Amritsar.

MA 57/ASR/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8552 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 11 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2000-2001
• Appeal Filed On: 02-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT JAIN; P N ARORA
• Keywords: Rectification of order; Additional evidence; Accommodation entries; Retraction
• Section: 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A. NOS. 55 TO 59(ASR)/2010 (ARISING OUT OF I.T.A. NOS. 198 TO 202 (ASR)/200 6) ASSESSMENT YEARS:1998-99 TO 2002-03 PAN : THE ASSTT. COMMR. OF INCOME TAX VS. SH. RISHI GRO VER, CIRCLE IV, AMRITSAR. PROP. M/S. VISHNU JEWELLE RS, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY:SH. ROHIT JAIN & SH.P.N.ARORA, ADVOCA TES DATE OF HEARING:01/06/2012 DATE OF PRONOUNCEMENT:26/06/2012 ORDER PER BENCH ; THESE FIVE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE UNDER SECTION 254(2) ARISE FROM THE CONSOLIDATED ORDER O F TRIBUNAL, DATED 26 TH JUNE, 2009 PASSED IN ITA NOS. 198 TO 202(ASR)/2006 FOR THE ASSESSMENT YEARS 1998-99 TO 2002-03. 2 2. THE REVENUE HAS FILED MISCELLANEOUS APPLICATIONS , WHICH FOR THE SAKE OF CLARITY IS REPRODUCED AS UNDER: IT IS SUBMITTED THAT THE HONBLE ITATS COMBINED O RDER DATED 26.06.2009 PASSED IN RESPECT OF ITA NOS. 198 TO 202 (ASR)/2006 DATED 26.06.2009 FOR THE ASSESSMENT YEARS 1998-99 TO 2002 -2003 IN THE AFOREMENTIONED APPEAL CONTAINS (I) FACTUAL ERRORS A ND (II) ERRORS ON ACCOUNT ON NON-CONSIDERATION OF THE ARGUMENTS AND E VIDENCE LED BY THE DEPARTMENT. THE ERRORS ON ACCOUNT OF FACTS ARE ENUMERATED AT PARAS A TO O AND ERRORS ON ACCOUNT OF NON-CONSI DERATION OF ARGUMENTS AND EVIDENCE LED BY THE DEPARTMENT ARE EN UMERATED AT PARAS P TO S BELOW. IN ADDITION, IT HAS BEEN FO UND THAT THE DRS WRITTEN ARGUMENTS ON 33 POINTS WERE NOT CONSIDERED AT ALL. THE WRITTEN ARGUMENTS ON 33 POINTS HAVE BEEN ENUMERATED FROM PAGE 9 TO 57 OF THIS M.A. THE ABOVE REFERRED FACTUAL ERRORS FROM PARA A TO O ARE DILATED AS BELOW: (A) AT PARA 53, THE HONBLE BENCH HAS REMARKED THAT THE AO HIMSELF IN THE REASONS RECORDED FOR THE A.Y. 1996-9 7 LEADS TO PRIMARY CONCLUSION THAT EVEN AS PER THE DEPARTMENT THE APPELLANT WAS ENGAGED IN JEWELLERY BUSINESS UPTO TH E ASSESSMENT 1997-98. THIS ATTRIBUTION TO THE DEPARTM ENT IS WRONG AND MISPLACED AS THE REASONS RECORDED ARE NEV ER THE FINDINGS OF THE AO BUT ONLY A PREMISE . A PREMISE C AN NEVER BE A SUBSTITUTE FOR A FACTUAL TRUTH WHICH HAD BEEN EST ABLISHED IN THE ORDER OF THE AO THAT THE ASSESSEE WAS NOT ENGAGED I N THE BUSINESS OF SALE AND PURCHASE OF JEWELLERY. THEREFO RE, IT IS MISTAKE TO ALLOW AN APPEAL ON THE BASIS OF MERE PRE MISE AND THIS MISTAKE FALLS WITHIN THE AMBIT OF SECTION 254( 2) OF THE INCOME TAX ACT, 1961. (B) AT PARA 54, THE HONBLE BENCH HAS SQUARELY GONE BY THE STATEMENT OF SH. JATINDER KUMAR ON 22.01.2004 AND I T HAS TOTALLY IGNORED HIS STATEMENT RECORDED ON 06.01.200 3 AS BROUGHT TO THE NOTICE OF THE HONBLE BENCH IN THE PAPER BOO K FILED BY THE DEPARTMENT AS S.NO.23. THEREFORE, A MISTAKE HAS CREPT IN THIS PARA DUE TO THE NON-CONSIDERATION OF THE FULL FACTS WHICH DESERVES TO BE RECTIFIED U/S 254(2) OF THE ACT. 3 (C) AT PARA 55, THE HONBLE BENCH HAS RECORDED A FINDIN G THAT VARIOUS NOTICES, INTIMATIONS ISSUED BY THE INCOME-T AX DEPARTMENT HAVE ACTUALLY BEEN SERVED AT THE SAID SH OP OF THE APPELLANT. IT HAS FURTHER BEEN RECORDED THOUGH THE DR IN HIS SUBMISSIONS ARGUED SUCH NOTICES MIGHT HAVE BEEN REC EIVED BY SH. RISHI GROVER PERSONALLY BUT THE CORRESPONDENCES PLACED ON RECORD DO INDICATE THAT SUCH CORRESPONDENCES WERE S ERVED ON THE ASSESSEE. IT MAY BE MENTIONED HERE THAT THE DE PARTMENT HAD PRODUCED DISPATCH REGISTER BEFORE THE HONBLE B ENCH WHEREBY IT HAD BEE SHOWN THAT NO NOTICE, INTIMATIAO NS WERE SENT BY POST AS CLAIMED BY THE ASSESSEE. THE HONBLE BEN CH HAS NOT BROUGHT ON RECORD THIS FACT OF THE DRS SHOWING THE DISPATCH REGISTER AND AS SUCH IT AMOUNTS TO COMMITTING A MIS TAKE RECTIFIABLE U/S 254(2) OF THE ACT. (D) AT PARAS 56, 57 & 58, THE HONBLE BENCH HAS GONE B Y THE FACT THAT THE SALES-TAX AUTHORITIES HAVE ACCEPTED THE CL AIM OF THE ASSESSEE THAT HE IS ENGAGED IN THE SALE AND PURCHAS E OF JEELLERY. THE HONBLE BENCH HAS NOT CONSIDERED THE ARGUMENT OF THE DR THAT THE ASSESSEE HAD ONLY CREATED A FAADE OF GENU INENESS OF BEING A PURCHASER AND SELLER OF JEWELLERY. THE HON BLE BENCH HAS LARGELY GONE BY THE STATEMENT OF SH. RISHI GROV ER RECORDED BY THE SALES-TAX INSPECTOR ON 09.01.1998. IN THE ST ATEMENT, IT HAS BEEN STATED THAT ON THE RIGHT HAND SIDE SHOP NO .27 AND ON THE LEFT HAND SIDE SHOP NO.25 WAS SITUATED. THE HON BLE BENCH DID NOT CONTRAST IT WITH THE STATEMENT OF SH. JATIN DER ANAND DATED 06.01.2003 THEREIN IT HAD BEEN STATED BY HIM THAT THERE WERE ONLY THREE SHOPS AT GROUND FLOOR AND THREE SHO PS AT FIRST FLOOR AND HOW COULD SHOP NO.26 BE IN THE OCCUPATION OF SH. RISHI GROVER. THIS MISTAKE HAS ALSO CREPT IN THE OR DER OF THE TRIBUNAL DUE TO NON-CONSIDERATION OF STATEMENT OF S H. JATINDER ANAND DATED 06.01.2003 AND VARIOUS OTHER FACTS. THE REFORE, THIS MISTAKE ALSO NEEDS TO BE RECTIFIED BY TAKING THE FA CTS INTO CONSIDERATION IN ALL THEIR TOTALITY. (E) AT PARA 58 TO 64, THE HONBLE BENCH HAS REJECTED TH E DRS CLAIM THAT THE THREE JEWELERS, NAMELY, M/S. HUKAN C HAND SUSHIL KUMAR, M/S. KAPOOR JEWELLERS AND M/S. VINOD JEWELLE RS HAD ADMITTED HAVING RECEIVED ACCOMMODATION ENTRIES FROM THE ASSESSEE. THE HONBLE BENCH IN SUPPORT OF ITS HOLDI NG HAS REPRODUCED ASSESSEES APPLICATION U/S 144A AT PAGE 46 OF ITS 4 ORDER AND MISSED TO REPRODUCE AND ALSO TAKE COGNIZA NCE OF THE PARA 7 OF THE SAID APPLICATION WHICH READS AS UNDER : WITHOUT PREJUDICE, IT IS HUMBLY SUBMITTED THAT OUR CASE WAS FULLY COMPARABLE WITH THE CASE OF M/S. VIN OD JEWELLERS, PATHANKOT. IN THAT CASE, THE ASSESSMENTS HAVE BEEN MADE IN THE SAME CIRCLE-2 AT AMRITSAR AND HE HAS NOT BEEN TREATED AS BENEFICIARY REGARDING JEWELLERY PUR CHASED FROM OTHERS AND SOLD TO M/S. VISHNU JEWELERS. OUR F IRM HAD ALSO NOT TAKEN ANY OTHER BENEFIT, EXCEPT THE PROFIT ALREADY DECLARED. IT MAY BE MENTIONED THAT THAT IDENTICAL PARA WAS INCORPORATED IN THE APPLICATION U/S 144A IN THE CAS E OF M/S. KAPOOR JEWELLERY HOUSE (DEPARTMENTAL PAPER BOOK PAG ES 373 TO 390). IT MAY BE MENTIONED HERE IT WAS POINTED OUT TO THE HONBLE BENCH THAT THE AO IN THE CASE OF SH. VINOD KUMAR PROP. M/S. VISHNU JEWELLERS, PATHANKOT HAD HELD THA T THE ASSESSEE HAD ACTED AS A CONDUIT FOR GETTING ACCOMMO DATION ENTRIES FROM M/S. RISHI GROVER AND HAD ONLY RECEIVE D NOMINAL PROFIT THEREFROM. M/S. HUKAN CHAND SUSHIL CHAND AND M/S. KAPOOR JEWELLERS, AMRITSAR HAD IN PARA 7 OF THEIR A PPLICATIONS U/S 144A SUBMITTED THAT M/S. VINOD JEWELLERS, PATHA NKOT HAS NOT BEEN TREATED AS BENEFICIARY REGARDING JEWELLERY PURCHASED FROM OTHERS AND SOLD TO M/S. VISHNU JEWELLERS. IT H AS FURTHER BEEN AFFIRMED BY BOTH THESE CONCERNS THAT THEY HAD NOT TAKEN ANY OTHER BENEFIT EXCEPT THE PROFIT ALREADY DECLARE D. THUS, IT IS CLEAR THAT THESE TWO CONCERNS HAD ADMITTED THAT THE TOO HAD ACTED AS A CONDUIT FOR GETTING ACCOMMODATION ENTRIE S FROM M/S. RISHI GROVER FOR THE BENEFICIARIES. CLEARLY, NON-CONSIDERATION OF THIS VITAL PARA 7 OF THE APPLICATIONS MADE U/S 144A HAS RESULTED IN THE MIST AKE WHICH FALLS WITHIN THE AMBIT OF SECTION 254(2) OF THE ACT . (F) AT PARA 64, THE HONBLE BENCH HAS HELD THAT SH. VIN OD KUMAR IN HIS STATEMENT HAD REPEATEDLY STATED THAT THE TRA NACTION OF SALE OF DIAMOND JEWELLERY TO M/S. VISHNU JEWELLERS WAS D ONE BY 5 TAKING THE SAID CONCERN AS THE CONCERN OF M/S. HUKA M CHAND SUSHIL KUMAR. THE TRIBUNAL HAS LARGELY GONE BY THIS FALSE STATEMENT OF SH. VINOD KUMAR AND HAS NOT TAKEN COGN IZANCE OF THE FACT THAT THE AO HAD HELD HIM TO BE ONLY A COND UIT FOR GETTING ACCOMMODATION ENTRIES FROM M/S. VISHNU JEWE LERS THROUGH THE AGENCY OF M/S. HUKAN CHAND SUSHIL KUMAR , AMRITSAR. THIS FACT HAS BECOME FINAL AND IT IS NO W ONDER THAT M/S. HUKAN CHAND SUSHIL KUMAR AND M/S. KAPOOR JEWEL LERY HOUSE, AMRITSAR HAD ALSO DEMANDED SIMILAR TREATMENT LIKE THAT GIVEN TO SH. VINOD KUMAR BY THE AO. THIS HAD LEFT NO ROOM WITH THE HONBLE TRIBUNAL TO HOLD THAT SH. VINOD KU MARS STATEMENT WAS TRUE AND THAT THE ASSESSEE WAS ENGAGE D IN THE JEWELLERY BUSINESS. (G) AT PARA 66, THE HONBLE BENCH HAS OBSERVED THAT NO SELLER HAS DENIED HAVING SOLD JEWELLERY TO THE ASSESSEE. THE H ONBLE BENCH DID NOT CONSIDER DRS ARGUMENT THAT NO SELLER WOULD DENY SALE OF JEWELLERY TO THE ASSESSEE BECAUSE HE I S THE BENEFICIARY OF THE ACCOMMODATION ENTRIES PROVIDED B Y THE ASSESSEE. THUS, IT AGAIN AMOUNTS TO A MISTAKE. FURT HER, IT WAS POINTED OUT TO THE HONBLE BENCH THAT THE HONBLE M UMBAI BENCH OF THE TRIBUNALS ORDER IS NOT A GOOD ORDER A S WHETHER OR NOT M/S. VISHNU JEWELLERS IS ENGAGED IN GENUINE JEW ELLERY BUSINESS OR IS A ACCOMMODATION ENTRIES PROVIDER CAN ONLY BE ASCERTAINED FROM THE CASE OF M/S. VISHNU JEWELLERS AND NOT FROM THE CASE OF A BENEFICIARY. THIS ARGUMENT OF TH E DR HAS ALSO NOT BEEN CONSIDERED BY THE HONBLE BENCH AND I T CONSTITUTE A MISTAKE APPARENT RECTIFIABLE U/S 254(2). (H) AT PARAS 67 TO 70, THE HONBLE BENCH HAS COMMITTED A GREVIOUS MISTAKE IN SIMPLY GOING BY THE FALSE ASSERTION OF THE ASSESSEE THAT HE IS ENGAGED IN THE BUSINESS OF JEWELLERY. TH E HONBLE BENCH HAS QUOTED SEVERAL STATEMENTS OF THE ASSESSEE . HAD THE TRIBUNAL ANALYSED THE SAID STATEMENTS OF THE ASSESS EE, IT WOULD HAVE EASILY COME TO THE CONCLUSION THAT THE ASSESSE E HAS ONLY BEEN LYING. THE HONBLE TRIBUNALS FAILURE TO ASCER TAIN THE TRUTH FROM THESE STATEMENTS AGAIN AMOUNT TO MISTAKE. IT M AY BE MENTIONED HERE THAT IT MAY AMOUNT TO PERVERSE ORDER IF AN ERRONEOUS VIEW IS FORMED BUT IF THE RELEVANT CONTEN TS OF THE STATEMENTS ARE NOT CONSIDERED, IT AMOUNTS TO MISTA KE APPARENT FROM RECORD WHICH IS RECTIFIABLE UNDER SECTION 254( 2) OF THE ACT. A CLOSE PERUSAL OF THE VERSIONS OF THE STATEMENTS O F THE ASSESSEE 6 REVEALS INHERENT CONTRADICTION WHICH CLEARLY SHOW T HAT THE ASSESSEE IS ONLY LYING. IN HIS STATEMENT RECORDED O N 13.03.2002, HE STATED THAT HE STARTED HIS BUSINESS IN 1996 APR IL (PAGE 50 OF THE ORDER) AND IN HIS STATEMENT RECORDED ON 11.11.2 003 (PAGE 52 OF THE ORDER) THE ASSESSEE STATES THAT HE STARTED H IS BUSINESS IN 1993-94. THERE ARE LOT MANY OTHER CONTRADICTION IN THE STATEMENTS OF SH. RISHI GROVER WHICH LEAD ONE TO TH E INESCAPABLE CONCLUSION THAT HE IS NOT ENGAGED IN JE WELLERY BUSINESS. THE HONBLE TRIBUNALS NOT CONSIDERING TH OSE STATEMENTS IN THEIR TOTALITY IS A MISTAKE WHICH FAL LS WITHIN THE AMBIT OF SECTION 254(2) OF THE ACT. (I) AT PARAS 71 TO 75, THE HONBLE BENCH HAS RECORDED A FINDING THAT THE CONFESSIONAL STATEMENTS OF THE ASSESSEE DA TED 16.01.2003 AND 17.1.2003 WERE UNDER SUBSTANTIAL THR EAT AND COERCION. WHILE RECORDING THIS FINDING, IT HAS BEEN SEEN THAT THE TRIBUNAL HAS MISSED TO DEAL WITH DRS ARGUMENTS THA T HAD THE ASSESSEE BEEN REALLY HUMILIATED AND PARADED IN BAZA AR, HE WOULD NOT HAVE GONE TO THE POLICE STATION ON 7.1.2003 FOR FILING AN FIT STATING THAT HE WAS MOVING IN THE AREA OF BUS S TAND, AMRITSAR AND IF HE HAD REALLY BEEN HUMILIATED AND P ARADED THE PREVIOUS DAY, HE OUGHT TO HAVE LODGED A COMPLAINT W ITH THE POLICE OF THE SUCH MISBEHAVIOUR OR TO THE HIGHER A UTHORITIES AND INSTEAD HE WAS BUSY IN MANAGING HIS AFFAIRS TO COME CLEAN OUT OF THE RUCKUS HE HAD CREATED. NO WHERE THIS ARGUMEN T AND COPY OF THE FIT FILED BY THE DEPARTMENT IN THE PB AT PAG E 238 HAVE BEEN CONSIDERED BY THE BENCH WHICH RENDERS ITS ORDE R RECTIFIABLE U/S 254(2) OF THE ACT. THE HONBLE BENC H FURTHER FAILURE TO TAKE COGNIZANCE OF THE FACT THAT THE CON FESSIONAL STATEMENTS COULD NOT BE UNDER ANY PRESSURE AS THE S AME WERE RECORDED IN THE PRESENCE OF SH. RAJAN KUMAR CA COUN SEL FOR THE ASSESSEE. THIS FACT WAS BROUGHT TO THE NOTICE OF THE BENCH, BUT IT HAS NOT BEEN CONSIDERED AND THUS IT RENDERS THE ORDER RECTIFIABLE U/S 254(2) OF THE ACT. (J) AT PARAS 76 TO 80, THE HONBLE BENCH AFTER QUOTING THREE JUDGMENTS OF THE HONBLE SUPREME COURT HAS RECORDE D A FINDING: THUS, ON A CAREFUL READING OF THE THREE DE CISIONS OF THE HONBLE SUPREME COURT REFERRED BEFORE US, WE ARE OF THE CONSIDERED VIEW THAT THE LEGAL POSITION THAT EMRGES IS THAT A RETRACTED STATEMENT, THOUGH BINDS THE ASSESSEE, ONC E RETRACTED CANNOT BE SOLE BASIS FOR MAKING THE ASSESSMENT. THE MISTAKE 7 WHICH THE TRIBUNAL HAS COMMITTED IS THAT IT HAS AL LOWED THE ASSESSEE TO COME OUT OF THE BIND SIMPLY BY STATI NG THAT HE WAS HARASSED AND HUMILIATED WHEN FACTUAL MATRIX IS TOTALLY TO THE CONTRARY WHICH HE HAS NOT BEEN CONSIDERED BY TH E TRIBUNAL. THE TRIBUNAL HAS NOT MENTIONED EVEN A SINGLE SYLLAB LE OF THE DRS ARGUMENTS ON THIS POINT. (K) AT PARAS 81 TO 87, THE HONBLE BENCH HAS COMMITTED A MISTAKE IN PLACING RELIANCE ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF KTM M. MOHD VS. UOI 197 ITR 19 6 AS THE STATEMENTS WERE RECORDED BY THE DEPUTY DIRECTOR OF INCOME (INVESTIGATION) WHO IS A GAZETTED OFFICE. THE HONB LE BENCH FURTHER COMMITTED AN ERROR WHEN IN VIEW OF THE DECI SION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ASSTT. C IT V. VKL JOLLY & SONS (SUPRA) AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF PYRAMID SOFTWARE & TECHNOLOGIES AND MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MUKIND V KAPADIA (SUPRA), I T HELD THAT THE STATEMENTS RECORDED BY DDIT(INV.) WERE INVALID. HE WAS GAZETTED OFFICER AND THUS COMPETENT TO RECORD THE S TATEMENTS. THE HONBLE TRIBUNAL FURTHER ERRED IN NOT DEALING W ITH THE ARGUMENT OF THE DR THAT THE WORDS REFERRED TO IN SUB-S(1) OF S.132 BEFORE HE TAKES ACTION U/S CLAUSE (I) TO ( V) OF THAT SUB-SECTION IN SECTION 131(1A) DO NOT QUALIFY THE W ORDS- DIRECTOR GENERAL, DIRECTOR, JOINT DIRECTOR, ASSTT. DIRECTOR, DY. DIRECTOR BUT ONLY QUALIFY THE WORDS THE AUTHOR IZED OFFICER WHICH PRECEDES THEM. THUS, THE DECISION OF THE HONBLE MADHYA PRADESH HI GH COURT IN THE CASE OF CLASSICE BUILDERS & DEVELOPERS VS. UOI REPORTED AT 251 ITR 492 WAS CLEARLY APPLICABLE. (L) AT PARA 88, THE HONBLE BENCH HAS CONSIDERED THE ST ATEMENTS OF VARIOUS PERSONS RELIED UPON BY THE DEPARTMENT TO PR OVE THAT THE ASSESSEE WAS NOT ENGAGED IN THE PURCHASE OF SALE OF JEWELLERY. THE TRIBUNAL HAS COMMITTED MISTAKES HERE ALSO WHIC H ARE DILATED AS UNDER: (A) IT HAS COMMITTED A MISTAKE BY NOT CONSIDERING THE STATEMENT OF SH. HARJINDER SINGH IT IS TOTALITY. IT HAS ONLY GONE BY THE ASSESSEES ASSERTION THAT HE HAD LEFT B USINESS 8 IN 2001 AND SH. HARJINDER SINGH PURCHASED THE PROPE RTY IN MAY,2001. ALL OTHER FACTS STATED BY SH. HARJINDE R SINGH HAVE BEEN IGNORED BY THE HONBLE BENCH. IT HA S FURTHER COMMITTED AN ERROR THAT THE STATEMENT RECOR DED BY DDIT WAS NOT VALID WHICH IS INCORRECT AS DISCUSSED ABOVE. (B) THE TRIBUNAL HAS COMMITTED A MISTAKE BY NOT CONSIDE RING THE STATEMENT DATED 6.1.2003 OF SH. JATINDER KUMAR IN ITS TOTALITY AND NOT APPRECIATED THAT HOW COULD SH. JAT INDER KUMAR RECONCILE HIS STATEMENT DATED 22.1.2004 TO H IS STATEMENT DATED 6.1.2003? (C) THE TRIBUNAL HAS COMMITTED AN ERROR BY NOT ELABORAT ING AS TO HOW IT HAS REACHED THE CONCLUSION THAT STATEM ENTS DO NOT READ TO THE CONCLUSION THAT THE ASSESSEE WAS NO T AT ALL ENGAGED IN JEWELLERY BUSINESS. A NON-SPEAKING ORDE R IS AN ORDER WHICH FALLS WITHIN THE CORNERS OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961. (D) THE TRIBUNAL HAS COMMITTED AN ERROR IN THIS PARA AL SO AS IT HAS PASSED A NON-SPEAKING ORDER. (E) THE TRIBUNAL HAS COMMITTED AN ERROR IN NOT APPRECI ATING THAT THE FILING OF DEPOSIT VOUCHERS IN THE BANK PRE MISES FOR SH. RISHI GROVER WAS FOR HELPING HIM DO THE BUS INESS OF ACCOMMODATION ENTRIES. (F) THE TRIBUNAL COMMITTED A MISTAKE BY ALLOWING SH. RAKESH KUMAR GO WITH HIS RETRACTION STATEMENT WITHO UT BINDING HIM WITH HIS PREVIOUS STATEMENT DATED 22.1.2003. (G) THE TRIBUNAL HAS COMMITTED A MONUMENTAL MISTAKE IN RECORDING THAT BOTH THE PERSONS NAMELY SH. YUDHVIR AND SH. SUSHIL KUMAR SAREEN HAVE TAKEN CONTRARY STANDS IN THEIR STATEMENTS. THIS IS AT VARIANCE WITH THEIR OBSERVATION AT OTHER PLACES WHERE THE WITNESSES SUBSEQUENTLY RETRACTED FROM THEIR EARLIER STATEMENT AND SPOKE IN FAVOUR OF THE ASSESSEE SUBSEQUENTLY. THE TRIBUNAL ONLY MENTIONED BUT DID NOT CONSIDER THE DR S ARGUMENT THAT THE ASSESSEE HAD REFUSED TO CROSS-EXA MINE THE TWO BROKERS AND THUS IT PROVES THAT THE ASSESSE E WAS ENGAGED IN ANY SUCH BUSINESS AND HAS, THUS, COMMITT ED A MISTAKE. 9 (M) AT PAGE 92, THE HONBLE BENCH HAS NOT DEALT WITH TH E ARGUMENTS OF THE DR THAT IT WAS NOT SHEER COINCIDENCE THAT BO TH SH. RISHI GROVER AND SH. RAJ KUMAR OF M/S. NAYYAR JEWELLERS S HOULD HAVE IDENTICAL FACTS. WITHOUT CONSIDERING THE SAID ARGUMENTS AS AUGMENTED WITH THE DOCUMENTARY EVIDENCE FROM PAGES 59 TO 109 OF THE DEPARTMENTAL PAPER BOOK, THE TRIBUNALS DECIDING THE ISSUE AGAINST THE REVENUE, IS CLEARLY A MISTAKE WHICH FALLS WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. (N) AT PARA 97 TO 102, THE TRIBUNAL HAS REJECTED THE CL AIM OF THE DR THAT THE LETTERS DATED 13.2.2006 AND 22.2.2006 WERE PLANTED/INSERTED IN THE FILE OF THE LD. CIT(A). THE TRIBUNAL HAS NOT DEALT WITH THE ARGUMENTS OF THE DR ADVANCED IN THIS REGARD. THE LD. DR ARGUED THAT BOTH THE DOCUMENTS WERE NEIT HER FINDING ANY MENTIONED IN THE ORDER SHEETS MAINTAIN ED IN THE OFFICE OF THE CIT(A) AND NOR THESE DOCUMENTS CONTAI NED THE SIGNATURES OF THE WORTHY CIT(A) AND NOR THESE DOCUM ENTS CONTAINED THE SIGNATURES OF THE CIT(A) PUT AS A MAR K OF HAVING SEEN THE SAID DOCUMENTS. THE TRIBUNAL DID NOT APPRE CIATE THAT IF THESE DOCUMENTS WERE ALREADY THERE ON THE RECORD BE FORE THE CIT(A), WHY DID THE ASSESSEE SEEK TO FILE THE SAME BEFORE THE HONBLE BENCH BY WAY OF FILING ADDITIONAL EVIDENCE. THIS CLEARLY SHOWS THAT THE HONBLE TRIBUNAL HAS COMMIT TED AN ERROR BY NOT CONSIDERING THE ARGUMENTS OF THE DR AND DECI DING THE SAME. (O) AS PER PARAS 104 TO 107 , THE HONBLE TRIBUNAL HAS ERRED IN HOLDING THAT THE DECISION OF THE SPECIAL BENCH OF T HE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SH. MANOJ AGGA RWAL VS. DCIT, NEW DELHI REPORTED AT 113 ITD 377 IS APPLICAB LE TO THE CASE OF THE ASSESSEE. IT HAS OBSERVED THAT THE MODU S OPERANDI OF THE SAID ASSESSEE WERE SIMILAR TO THE OPERATIONS OF THE APPELLANT. ONE FUNDAMENTAL DIFFERENCE, INTER ALIA, IN THE SAID CASE AND THAT OF THE ASSESSEE WHICH THE DR HAD BROUGHT TO THE OT ICE OF THE HONBLE BENCH WAS THAT IN THE SAID CASE, THE SPECIA L BENCH HAD GONE LARGELY BY THE FACT THAT THE ASSESSEE HAD NOT MADE ANY CONFESSIONAL STATEMENT REGARDING JEWELLERY BUSINESS AND IT WAS ONLY IN RESPECT OF SHARE BUSINESS. THE HONBLE TRIB UNAL HAS COMMITTED A MISTAKE IN NOT CONSIDERING THIS ARGUMEN T OF THE DEPARTMENT BEFORE APPLYING THE RATIO OF THE SPECIAL BENCHS CASE. 10 THE ARGUMENTS/EVIDENCE WHICH HAS NOT BEEN CONSIDERE D AT ALL BY THE HONBLE BENCH IN ITS ORDER ARE ENUMERATE D AT PARA P TO S BELOW: (P) THE TRIBUNAL HAS NOT CONSIDERED AT ALL THE IRREFUTA BLE EVIDENCE IN THE FORM OF FORM NO.49A,(PAN APPLICATION FORM) D ATED 15.03.2001 WHEREIN HE HAS TICKED SALARIES AS HE S OURCE OF HIS INCOME. THIS IS A VERIFIED APPLICATION. IT WAS FILE D BEFORE THE HONBLE AT PAGES 53 TO 56 OF THE PAPER BOOK. IN TH IS APPLICATION, SH. RISHI GROVER STATES THAT FOR THE A CCOUNTING YEAR ENDING 31.3.2001 HIS INCOME WAS BELOW THE TAXABLE L IMIT AND IT WAS FROM SALARY. IT WAS ARGUED THAT THIS PAN APPLI CATION FORM CLEARLY PROVES THAT THE ASSESSEE WAS OT EGAGED IN A NY JEWELLERY BUSINESS. IT ALSO WHOLLY UNDERMINES THE STATEMENT O F THE ASSESSEE TAKEN AS SACROSANCT BY THE HONBLE AT PAGE S 50 OF THE ORDER, WHERE IN AN ANSWER TO QUESTION NO.2, THE ASS ESSEE HAD STATED THAT HIS BUSINESS WAS STARTED IN 1996 APRIL AND WAS DISCONTINUED IN THE BEGINNING OF THE YEAR 2001 WHER EAS IN THIS APPLICATION FORM HE IS MAKING, SELF VERIFIED STATEM ENT THAT DURING THE PREVIOUS YEAR ENDING ON 31.3.2001, HE W AS HAVING SALARY AS HIS SOURCE OF INCOME. (Q) THE HONBLE BENCH HAS NOT CONSIDERED DOCUMENTS AT P AGE NO.236 OF THE DEPARTMENTAL PAPER BOOK WHICH IS A LE TTER SENT BY SH. KAPIL KUMAR,CA COUNSEL FOR THE ASSESSEE WHICH B LOWS TO THE SMITHEREENS THE WHOLE COCK AND BULL STORY OF C OERCION AND PRESSURE BROUGHT UPON THE ASSESSEE AND WRONGLY ACCE PTED BY THE TRIBUNAL. IN THIS LETTER, SH. KAPIL KUMAR INFOR MS THAT SH. RISHI GROVER SUFFERED ACUTE CHEST PAIN ON 6.1.2003 AT 7 PM AND HAD BEEN HOSPITALIZED AND WAS UNDER MEDICAL TREATME NT AT MEDICAL UNIT 1, GURU NANAK DEV HOSPITAL, AMRITSAR A ND FURTHER REQUESTED THAT HE MAY BE PERMITTED TO ATTE ND THE OFFICE TILL HE RELIEVE FROM HOSPITAL. THEREAFTER, HE ATTEN DS THE OFFICE ON 16.1.2003 AND THEN ON 17.1.2003 ON HIS OWN VOLITION . THE TRIBUNAL DID NOT CONSIDER THE DRS ARGUMENT THAT H E HAD REALLY BEEN COERECED ON 16.1.2003 THEN WHY DID HE COME TO OFFICE AGAIN ON 17.1.2003. NON-CONSIDERATION OF THESE VITA L ARGUMENTS/EVIDENCE CONSTITUTE A MISTAKE WITHIN THE AMBIT OF SECTION 254(2) OF THE ACT. (R) IT WAS ARGUED BEFORE THE HONBLE BENCH THAT THERE H AS BEEN NO GENUINE PURCHASE PURCHASE AND SALE OF JEWELLERY AS THE 11 JEWELLERY HAD BEEN BROUGHT AND SOLD AT VARYING RATE S WHICH WAS INCONSISTENT WITH THE PREVAILING MARKET RATES. A CO PY OF MARKET RATES FOR GOLD & SILVER WAS FILED AT PAGES 399 TO 4 00 OF THE DEPARTMENTAL PAPER BOOK. (S) IT HAD BEEN ARGUED THAT AFTER THE ADMISSION OF ADDI TIONAL GROUNDS OF THE ASSESSEE, THE PROPER COURSE FOR THE HONBLE TRIBUNAL WAS TO REFER THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATING THE ADDITIONAL GROUND AND THAT THE HONBLE BENCH CANNOT SIT IN JUDGMENT OVER AN ADDITI ONAL GROUND ON FACTS. THIS GROUND OF THE DEPARTMENT HAS NOT BEEN CONSIDERED AT ALL AND IS A GLARING MISTAKE OF LAW. THE WHOLE ORDER ON THIS GROUND ALONE NEEDS TO BE RECALLED. 3. BESIDES THE ABOVE MISTAKES POINTED OUT BY THE R EVENUE, THERE WERE MISTAKES AS POINTED OUT BY THE LD. DR THAT ARGUMENT S FILED IN WRITING RUNNING INTO 33 PAGES, WHICH HAVE NOT BEEN CONSIDE RED AT ALL BY THE ITAT. THOUGH THE LD. DCIT(DR), MR. TARSEM LAL HAS NOT ARG UED AT ALL THESE 33 POINTS, AT THE SAME TIME, WE WILL DEAL WITH THE SAI D 33 POINTS WHICH ARE PART OF THE WRITTEN SUBMISSIONS OF THE REVENUE AT PAGES 9 TO 57 OF THE MISCELLANEOUS APPLICATION OF THE REVENUE. FROM THE READING OF THE SAID WRITTEN SUBMISSIONS AT PAGES 9 TO 57, THE DEPARTMEN TS CONTENTIONS WITH REGARD TO THE SAID 33 POINTS WERE AS UNDER: POINT DEPARTMENTS CONTENTION 1. IN THIS PARA, THE REVENUES ARGUMENTS ARE THAT THE APPELLANT MERELY CREATED RECORDS IN THE FORM OF RET URN OF INCOME, TAX PAYMENTS ETC. IN THIS REGARD, REFERENCE HAS BEEN MADE TO PAN APPLICATION FORM FILED BY THE APPELLANT, RETURNS OF INCOME AND THE FINANCIAL STAT EMENTS FILED ALONGWITH THE RETURN OF INCOME. 12 2. IN THIS PARA, IT IS ARGUED THAT THE RENT AGREEME NT FILED BY THE APPELLANT WAS ALSO CREATION OF RECORD. 3. IN THIS PARA, THE REVENUE HAS DOUBTED THE EXISTE NCE OF THE SHOP OF THE APPELLANT ON THE BASIS OF THE SHOP NUMB ER MENTIONED IN THE SALES TAX REGISTRATION CERTIFICATE . 4. THE DEPARTMENT HAS REFERRED TO CERTAIN BILLS OF THE STATE BANK OF INDIA AS HAVING NOT BEEN SIGNED BY THE APPE LLANT TO DOUBT THAT THE APPELLANT WAS NOT ACTUAL DEALER I N GOLD. 5. THE DEPARTMENT HAS RELIED UPON THE DESCRIPTION O F JEWELLERY CONTAINED IN BILLS ISSUED BY M/S. VINOD JEWELLERS, ASSESSMENT ORDER OF M/S. VINOD JEWELLERS , M/S. HUKAM CHAND SUSHIL KUMAR AND M/S. KAPOOR JEWELLERS. 6. THERE WAS NO THREAT OF COERCION EMPLOYED BY THE DDIT WHILE RECORDING THE STATEMENT OF THE APPELLANT, WHI CH IS EVIDENT FROM LETTER DATED 8 TH JUNE, 2003 FILED BY MR. KAPIL KUMAR AND COMPANY REQUESTING FOR PERSONS AFTE R FEW DAYS. 7 & 9 THE STATEMENTS OF SH. YUDHVIR AND SH. SUSHIL KUMAR HAVE BEEN RELIED UPON. 8. STATEMENTS OF SANJAY KUMAR HAVE BEEN RELIED UPON . 10 STATEMENTS OF SANJAY GROVER BROTHER OF THE APPEL LANT HAVE BEEN RELIED UPON. 11. STATEMENTS OF SH. JATINDER ANAND VIKAS SETH AND SH. ASHOK KUMAR HAVE BEEN RELIED UPON. 12. REFERENCE HAS BEEN MADE TO THE TRANSACTIONS WIT H M/S. BABA NAGA RICE MILLS. 13. REFERENCE IS MADE TO THE COMPLAINT IN THE FORM OF RESOLUTION FILED BY AMRITSAR JEWELERS ASSOCIATION T O THE HIGHER AUTHORITIES ALLEGING HIGH HANDEDNESS BY THE INCOME TAX DEPARTMENT. REFERENCE IS ALSO MADE TO 13 SUBSEQUENT RETRACTION BY SH. SUDHIR KAPOOR AND SATI SH KAPOOR. 14. REFERENCE HAS BEEN MADE TO BANK STATEMENT OF TH E APPELLANT WHEREIN CASH HAS BEEN DEPOSITED. 15 & 16 REFERENCE HAS AGAIN BEEN MADE TO BULLION T RADE WITH STATE BANK OF INDIA. FURTHER REFERENCE HAS BEEN MAD E TO STATEMENT OF VARIOUS PERSONS AND BILL BOOKS HAVING BEEN FOUND FROM THE OFFICE OF M/S. UMAT & COMPANY. 17. IT IS ALLEGED THAT CERTAIN DOCUMENTS HAVE BEEN INSERTED/PLANTED IN THE FILE OF THE CIT(A). 18,19 & 20 STATEMENTS OF THE APPELLANT HAVE BEEN RE FERRED TO AND BEEN RELIED UPON. 21. STATEMENTS OF SH. HUKAN RAI AND SH. VIJAY GUPTA HAVE BEEN REFERRED TO. 22. STATEMENTS OF SH. VIJAY GUPTA, SH. KULJAS RAI A ND OTHERS HAVE BEEN REFERRED TO. REFERENCE HAS ALSO BEEN MADE TO CERTAIN ALLEGED DISCREPANCIES IN THE BILL ISSUED BY THE APPELLANT. 23. STATEMENT OF SH. KAPIL KUMAR HAS BEEN REFERRED TO WHEREIN HE HAS DENIED HIS PARTICIPATION IN THE SCAM . 24. BOOKS OF ACCOUNT IMPOUNDED BY DDIT WHEREIN BULL ION TRADE WAS NOT INCORPORATED HAS BEEN REFERRED TO. 25. REFERENCE IS MADE TO FIR REGARDING LOSS OF BOOK S OF ACCOUNTS. 26 & 27 REFERENCE HAS BEEN MADE TO THE DROPPING OF PROCEEDINGS INITIATED U/S 148 OF THE ACT FOR THE ASSESSMENT YEA RS 1996-97 AND 1997-98 AND INFERENCES TO BE DRAWN THEREFROM. REFERENCE IS ALSO MADE TO AUDIT REPORT F OR ASSESSMENT YEAR 1998-99. 14 28. REFERENCE IS MADE TO THE RETRACTION FILED BY TH E APPELLANT BEFORE THE INCOME TAX AUTHORITIES. 29. REFERENCE IS MADE TO DROPPING OF PROCEEDINGS BY THE DEPARTMENT FOR CERTAIN ASSESSMENT YEARS. 30. REFERENCE IS MADE TO INADVERTENT ERROR IN RECO RDING NAME OF MOTHER OF THE APPELLANT IN THE AFFIDAVIT FILED B EFORE THE INCOME TAX AUTHORITIES. 31. REFERENCE IS AGAIN MADE TO DELIVERY OF CORRESPO NDENCES AT THE ADDRESS OF THE APPELLANT. 32. IN THIS POINT, THE REPLY TO THE SUBMISSIONS FIL ED ON BEHALF OF THE APPELLANT BEFORE THE HONBLE TRIBUNAL HAS BE EN REPRODUCED. 33. THE DECISION OF THE SPECIAL BENCH IN THE CASE O F SH. VINOD AGARWAL IS SOUGHT TO BE DISTINGUISHED. 4. THE LD. DCIT(DR), SH. TARSEM LAL, HOWEVER, PRAYE D ON THE DATE OF HEARING TO ADD ONE MORE MISTAKE IN THE FORM OF REVI SED MISCELLANEOUS APPLICATION, WHICH READS AS UNDER: IT IS SUBMITTED THAT THE UNDERSIGNED HAD FILED THE AFOREMENTIONED MISCELLANEOUS APPLICATION. IT IS SUB MITTED THE AFORESAID MA MAY KINDLY BE TREATED AS REVISED WITH THE INCLUSION OF THE FOLLOWING MISTAKE COMMITTED BY THE HONBLE TRIB UNAL: IT IS NECESSARY FOR THE TRIBUNAL TO EXAMINE THE ID ENTITY OF THE JEWELLERY DECLARED UNDER THE VDIS AND THE JEWELLERY SOLD IN THE TRANSACTION IN QUESTION. IN THE ABSENCE OF SUCH A F INDING, THE HONBLE PUNJAB & HARYANA HIGH COURT HAS IN THE CASE OF CIT VS. TEJINDER SINGH HUF REPORTED AT 239 CTR 342 ( 197 TAXMAN 325) HELD THAT WITHOUT SUCH FINDING THE TRIBUNALS FINDING CANNOT BE SUSTAINED. THUS, IT IS CLEAR THAT THE TRIBUNALS NOT GIVING ITS FIN DING WHETHER SH. RISHI GROVER HAD PURCHASED THE SAME JEWELLERY WHICH SEVER AL SELLERS HAD DECLARED UNDER THE VDIS AND SH. RISHI GROVER HAD SO LD THE SAME, 15 CONSTITUTES A MISTAKE IN VIEW OF THE JUDGMENT OF HO NBLE JURISDICTIONAL HIGH COURT (SUPRA). IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE MA ALREADY BEEN FILED BY THE DEPARTMENT MAY KINDLY BE TREATED AS RE VISED TO THE EXTENT OF INCLUSION OF THE AFORESAID MISTAKE IN THE SAID M A 5. MR. TARSEM LAL, THE LD DCIT (DR) WITH REGARD TO REVENUES APPLICATION FROM PAGES 1 TO 9 IN POINTS A TO S, INVITED OUR ATTENTION TO VARIOUS PAGES/PARAS OF THE ORDER OF THE ITAT DATED 26.06.2009 I.E. PAGES/PARAS 38,39,54, 55,56, 57, 58, 62, 64, 66, 67 TO 70, 71 TO 75, 76 TO 80, 81 TO 87, 85, 88, 92, 97 TO 102, 104 TO 107 WITH RE FERENCE TO THE MISTAKES AS POINTED OUT IN ITS APPLICATION AT PAGES 1 TO 9 IN P OINT A TO S AND ARGUED THAT THERE ARE FACTUAL ERRORS, ERRORS ON ACCOUNT OF NON-CONSIDERATION OF THE ARGUMENTS AND EVIDENCE LED BY THE DEPARTMENT AND TH EREFORE, WHOLE ORDER OF THE TRIBUNAL SHOULD BE RECALLED. 5.1 AS REGARDS THE REVISED MISTAKE FILED THROUGH RE VISED MISCELLANEOUS APPLICATION MENTIONED HEREINABOVE, THE LD. DR RELIE D UPON THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. TEJINDER SINGH, HUF, REPORTED IN 239 CTR 342 (SUPRA) AND ARG UED THAT IT IS NECESSARY FOR THE TRIBUNAL TO EXAMINE THE IDENTITY OF THE JEW ELLERY DECLARED UNDER THE VDIS AND THE JEWELLERY SOLD IN THE TRANSACTION IN QUESTION. THE ITAT HAS NOT GIVEN ITS FINDING WHETHER THE ASSESSEE SHRI RIS HI GROVER HAD PURCHASED THE SAME JEWELLERY WHICH SEVERAL SELLERS HAD DECLAR ED UNDER THE VDIS AND 16 SH. RISHI GROVER HAD SOLD THE SAME , CONSTITUTES A MISTAKE IN VIEW OF THE JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. TEJINDER SINGH, HUF (SUPRA). 6. THE LD. COUNSELS FOR THE ASSESSEE, SH. ROHIT JAI N, ADVOCATE AND SH. P.N. ARORA, ADVOCATE, HAS REPLIED THROUGH WRITTEN SUBMISSIONS ON EACH AND EVERY PARA OF THE MISCELLANEOUS APPLICATION OF THE REVENUE AT PAGES 1 TO 9 IN POINTS A TO S AS UNDER: POINT ASSESSEES REPLY A IN PARA 53, THE TRIBUNAL HAS CONSIDERED VARIOUS CUMULATIVE CIRCUMSTANCES , INCLUDING THE REASONS RECORDED BY THE AO FOR REOPENING ASSESSMENT FOR THE ASSESSMENT YEARS 1996-97 AND 1997-98 AND ALSO THE F ACT THAT THE PROCEEDINGS FOR THE SAID ASSESSMENT YEARS WERE SUBSEQUENTLY DROPPED TO COME TO A CONCLUSION THAT E VEN AS PER THE DEPARTMENT THE APPELLANT WAS ENGAGED IN JWELLERY BUSINESS UPTO ASSESSMENT YEAR 1997-98. THI S WAS BASED ON THE FACT THAT RETURNS OF THE APPELLANT FOR THE ASSESSMENT YEARS 1996-97 AND 1997-98 STOOD FINALLY ACCEPTED BY THE REVENUE. THERE IS, THUS, NO ERROR IN THE ORDER OF THE TRIBU NAL. THE HONBLE TRIBUNAL HAS NOT ATTRIBUTED ANYTHING TO THE REVENUE, RATHER HAD COME TO A CONCLUSION ON THE BAS IS OF THE APPRECIATION OF FACTS NARRATED IN THE REASONS R ECORDED BY THE AO AND ALSO AFTER TAKING INTO CONSIDERATION THE SUBSEQUENT EVENTS. B. THE CONTENTION OF THE REVENUE THAT THE TRIBUNAL HAS IGNORED STATEMENT OF SH. JATINDER KUMAR RECORDED ON 6 TH JANUARY, 2003 IS FACTUALLY INCORRECT. IN PARA 54, THE TRIBUNAL HAS REPRODUCED REPLIES GI VEN IN RESPONSE TO QUESTION NOS. 3 & 4. IN QUESTION NO.4, SH. ANAND WAS SPECIFICALLY CONFRONTED ON HIS STATEMENT DATED 6.1.2003. 17 FURTHER, STATEMENT DATED 6.1.2003 HAS BEEN SPECIF ICALLY BEEN CONSIDERED BY THE TRIBUNAL IN PARA 88(B). THIS FACT HAS NOT BEEN POINTED OUT BY THE DEPARTMENT BEFORE T HE TRIBUNAL IN THE MISCELLANEOUS APPLICATION. THE ALLEGATION OF THE REVENUE THAT HONBLE BENCH H AS NOT CONSIDERED STATEMENT DATED 6.1.2003 IS THUS FAC TUALLY INCORRECT. C IN PARA 55, THE HONBLE BENCH HAS TAKEN INTO CONSIDERATION THE ENTIRE FACTS AND THE ARGUMENTS AD VANCED BY BOTH THE SIDES. THE HONBLE TRIBUNAL HAS TAKEN INTO CONSIDERATION NOTICES/INTIMATION PLACED IN THE PAPER BOOK AND AL SO THE CONTENTION OF THE REVENUE THAT SUCH NOTICES MAY HAV E BEEN RECEIVED BY THE APPELLANT PERSONALLY. AFTER TAKING INTO CONSIDERATION THE ENTIRE MATERIA L, THE TRIBUNAL HAD COME TO DEFINITE CONCLUSION THAT THE APPELLANT HAD ACTUALLY TAKEN THE SHOP ON RENT. SUC H CONCLUSION HAS BEEN ARRIVED AT ON THE BASIS OF ENTI RELY OF THE FACTS, INCLUDING STATEMENTS OF VARIOUS PERSONS REFERRED IN THE EARLIER PARA. THE ALLEGATION OF THE REVENUE THAT THE TRIBUNAL HA S NOT CONSIDERED THE FACT THAT DISPATCH REGISTER WAS PRO DUCED IS, THUS, GROSSLY MISPLACED, PARTICULARLY WHEN THE ARGUMENT ADDRESSED BY THE REVENUE ON THE BASIS OF T HE SAID DISPATCH REGISTER WAS VERY MUCH CONSIDERED BY THE TRIBUNAL. D THE CONTENTION OF THE REVENUE IS, IN OUR RESPECTF UL SUBMISSION, NOTHING SHORT OF FINDING FAULT IN THE F INAL CONCLUSION ARRIVED AT BY THE TRIBUNAL AFTER CONSIDE RING VARIOUS DOCUMENTARY EVIDENCES PLACED ON RECORD. THE REVENUE IS, IN FACT, TRYING TO DITATE/DIRECT T HE DECISION OF THE TRIBUNAL BY SUGGESTING THE CONCLUSI ON THAT THE TRIBUNAL OUGHT TO HAVE COME TO RATHER THA 18 COMING TO THE CONCLUSION/FINDINGS GIVEN IN PARAS 56 , 57 & 58 OF THE ORDER. THE HONBLE TRIBUNAL, IT IS SUBMITTED HAS TAKEN IN TO CONSIDERATION THE ENTIRETY OF FACTS, INCLUDING BUT NO LIMITED TO STATEMENT OF THE LANDLORD, FACTS RELATIN G TO REGISTRATION OF THE APPELLANTS JEWELLERY BUSINESS WITH HE SALES TAX AUTHORITIES, ETC. TO REJECT THE ARGUMENT OF THE REVENUE THAT THE ASSESSEE HAD CREATED A FAADE OF GENUINENESS. THE ALLEGATION THAT THE TRIBUNAL HAS NOT CONSIDERE D STATEMENT OF SH. JATINDER ANAND DATED 6.1.2003, AS MENTIONED ABOVE, IS FACTUALLY INCORRECT SINCE THE S AID STATEMENT HAS IN FACT BEEN CONSIDERED IN PARAS 54 T O 88(B) OF THE TRIBUNAL. THE APPELLANT, THEREFORE, IT IS RESPECTFULLY SUBMI TTED, FAILS TO APPRECIATE AS TO HOW AND ON WHAT BASIS THE DEPAR TMENT COULD EVEN ALLEGE NON-CONSIDERATION OF MATERIAL PLA CED ON RECORD. THE ALLEGATION OF THE REVENUE SHOWS NOTHING BUT DISRESPECT/CONTEMPT OF THE ORDER OF THE TRIBUNAL, W HICH IS CLEARLY NOT PERMISSIBLE IN LAW. THE DEPARTMENT HAS ALSO CLEARLY FAILED TO APPREC IATE THE SCOPE AND AMBIT OF THE PROCEEDINGS U/S 254(2) OF TH E ACT. E THE ALLEGATIONS OF THE REVENUE ARE FACTUALLY INCO RRECT AND A GROSSLY MISCONCEIVED. IN PARAS 58 TO 64 OF THE ORDER, THE TRIBUNAL HAS ELABORATELY CONSIDERED NOT ONLY FINDINGS GIVEN BY T HE AO IN RESPECTIVE ASSESSMENT ORDERS OF THE THREE JEWELE RS, BUT ALSO TAKEN INTO CONSIDERATION THEIR RESPECTIVE STAT EMENTS AND ALSO THE APPLICATIONS FILED U/S 144A OF THE ACT . IN PARAS 62 & 63, THE TRIBUNAL HAS ELABORATELY CON SIDERED THE APPLICATION FILED U/S 144A OF THE ACT. THE MERE FACT THAT PARA 7 HAS NOT BEEN REPRODUCED IN THE ORDER DO ES NOT 19 MEAN THAT THE SAID PARA HAS NOT BEEN CONSIDERED BY THE HONBLE TRIBUNAL, AS ALLEGED BY THE REVENUE. KIND ATTENTION IS PARTICULARY INVITED TO THE FINDI NG IN PARAS 62-63 WHEREIN AFTER CONSIDERING PARAS 1 TO 4 OF THE APPLICATION FILED U/S 144A OF THE ACT, THE HONBLE TRIBUNAL CONCLUDED THAT THREE FIRMS HAD, IN FACT, A DMITTED HAVING SOLD DIAMOND JEWELLERY TO THE APPELLANT. PARA 7 REFERRED BY THE REVENUE, IN FACT, NOWHERE S UPPORTS THEIR CASE, SINCE THE SAID CONTENTION WAS MERELY A N ALTERNATIVE SUBMISSION OF THE JEWELERS, AS IS EVIDE NT FROM THE FACT THAT THE SAID PARA BEGINS WITH THE PHRASE WITHOUT PREJUDICE. RELIANCE PLACED BY THE REVENUE, IN THE PRESENT MISCELLANEOUS APPLICATION, ON THE ASSESSMENT ORDERS PASSED IN THE CASE OF VINOD JEWELLERS IS ALSO GROSS LY MISPLACED SINCE THE SAID ORDER HAS ALSO BEEN CONSID ERED IN PARAS 58 TO 60 OF THE ORDER OF THE TRIBUNAL. F THE ASSESSEE FAILS TO APPRECIATE AS TO HOW DESPIT E THE FACT THAT THE TRIBUNAL, IN PARA 64 OF THE ORDER, HAS ELA BORATELY DEALT WITH THE ASSESSMENT ORDER PASSED IN THE CASE OF M/S. VINOD JEWELLERS, IT COULD EVEN BE ALLEGED BY THE RE VENUE THAT THE TRIBUNAL HAS NOT CONSIDERED ANY PARTICULAR FACT. ON A CAREFULLY PERUSAL OF THE CONTENTION OF THE RE VENUE, IT IS NOTICED THAT THE REVENUE IS, IN FACT, AGAIN T RYING TO DICTATE THE CONCLUSION THAT THE TRIBUNAL OUGHT TO H AVE ARRIVED AT. IN DOING SO, THE REVENUE HAS, IN FACT, CONTENDED T HAT THE TRIBUNAL HAD COME TO A WRONG CONCLUSION, WHICH CLE ARLY SHOWS COMPLETE DISRESPECT TO THE BINDING ORDER OF THE TRIBUNAL. THE ASSESSEE FAILS TO APPRECIATE AS TO HOW SUCH CO NTENTION CAN EVEN BE RAISED IN THE MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT. THE SAID PROCEEDINGS ARE RESTRIC TED TO 20 RECTIFICATION OF MISTAKES APPARENT FROM RECORD AND NOT FOR THE PARTIES TO THE APPEAL TO VENT ITS GRIEVANCE AGA INST THE FINAL CONCLUSION/FINDING OF THE TRIBUNAL. G IN THIS PARA TOO, THE REVENUE, INSTEAD OF POINTIN G OUT ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, HAS IN FACT CHALLENGED THE CONCLUSION OF THE TRIBUNAL, WHICH IS CLEARLY NOT PERMISSIBLE U/S 254( 2) OF THE ACT. H. IN PARA 67 TO 70, THE TRIBUNAL HAS ELABORATELY C ONSIDERED ALL THE STATEMENTS OF THE APPELLANT RECORDED AT VAR IOUS POINTS OF TIME. EVEN IN THE MISCELLANEOUS APPLICAT ION, IT IS NOT THE CASE OF THE REVENUE THAT ANY OF THE STAT EMENTS OF THE APPELLANT HAVE NOT BEEN CONSIDERED. BOTH THE STATEMENTS DATED 13 TH FEB.,2002 AND 11 TH NOV., 2003, REFERRED BY THE REVENUE HAVE, IN FACT, BEEN ELABORATELY DEALT WITH BY THE TRIBUNAL IN PARAS 67 TO 68 IN THE TWO STATEMENTS AS ALLEGED BY THE REVENUE, SI NCE IN THE STATEMENT DATED 11.11.2003, THE APPELLANT HAD REFERRED TO STARTING OF REPAIR WORK OF JEWELLERY IN THE YEAR 1993-94, WHEREAS IN THE STATEMENT DATED 13.02.2002, THE APPELLANT HAD REFERRED TO STARTING OF THE JEWELLER Y BUSINESS. THE CONTENTIONS OF THE REVENUE ARE, IT IS SUBMITTE D, NOTHING BUT A CLEAR ATTEMPT ON THE PART OF THE DEPA RTMENT TO CHALLENGE THE CONCLUSION OF THE TRIBUNAL IN GUIS E OF THE PRESENT MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT. THIS IS CLEARLY EVIDENT FROM THE USE OF THE FOLLOWI NG EXPRESSIONS IN THE MISCELLANEOUS APPLICATION: HAD THE TRIBUNAL ANALYSED THE SAID STATEMENTS OF THE ASSESSEE, IT WOULD HAVE EASILY COME TO THE CONCLUSION THAT THE ASSESSEE HAS ONLY BEEN LYING. THE TRIBUNALS FAILURE TO ASCERTAIN THE TRUTH FROM THESE STATEMENTS AGAIN AMOUNT TO MISTAKE. 21 THERE IS CLEARLY NO ERROR IN THE ORDER OF THE HONB LE TRIBUNAL, AS ALLEGED BY THE REVENUE. I ALL THE ASPECTS MENTIONED BY THE REVENUE HAVE BEE N ELABORATELY CONSIDERED BY THE TRIBUNAL IN PARA 71 T O 75 OF THE ORDER, AS EXPLAINED HEREUNDER: (A) ISSUE REGARDING NON-REPORTING OF THE MATTER TO THE HIGHER AUTHORITY HAS BEEN CONSIDERED BY THE TRIBUNA L IN PARA 80 OF THE ORDER WHEREIN REFERENCE HAS BEEN MADE TO A LETTER WRITTEN BY AMRITSAR JEWELLERY ASSOCIATION TO CBDT COMPLAINING AGAINST THE HARASSMENT BY THE INVESTIGATION WING OF AMRITSAR. (B) THE FACT THAT STATEMENTS OF THE APPELLATE DATED 16.1.2003 AND 17.1.2003 WERE RECORDED IN THE PRESENCE OF SH. RAJAN KUMAR, THE SO CALLED COUNSEL OF THE APPELLANT, HA BEEN CONSIDERED IN PARA 36 OF THE ORDER OF THE TRIBUNAL. IN VIEW OF THE AFORESAID, THE CONTENTION OF THE REV ENUE THAT CERTAIN FACTS HAVE NOT BEEN TAKEN COGNIZANCE O F BY THE TRIBUNAL IS FACTUALLY INCORRECT. IT MAY ALSO BE PERTINENT TO MENTION HERE THAT THE T RIBUNAL IN PARAS 71 TO 75 HAVE NOT ONLY ELABORATELY DEALT W ITH ALL THE STATEMENTS OF THE APPELLANT, BUT ALSO CONSIDERE D THE THEN PREVAILING CIRCUMSTANCES, RETRACTIONS FILED BY THE APPELLANT ETC. TO COME TO A FINDING/CONCLUSION. THE REVENUE IS MERELY TRYING TO CHALLENGE THE CONCLUSION/FINDING OF THE TRIBUNAL, WHICH IS CLEARL Y NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF T HE ACT. J AGAIN, THE REVENUE HAS SHOWN GROSS DISRESPECT TO THE BINDING ORDER OF THE TRIBUNAL BY SEEKING TO CHALLEN GE THE CONCLUSION/FINDING OF THE TRIBUNAL IN THE GUISE OF MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT. THE HONBLE TRIBUNAL HAS FIRST RECORDED THE ARGUME NTS ADVANCED ON BEHALF OF THE APPELLANT. IN PARAS 17 TO 32 THE 22 TRIBUNAL HAS EXTENSIVELY REFERRED TO THE VARIOUS ARGUMENTS ADDRESSED TON BEHALF OF THE REVENUE. THEREAFTER, THE TRIBUNAL HAS DEALT WITH THE ARGUMEN TS ADVANCED ON BOTH THE SIDES FROM PARA 67 ONWARDS. EACH AND EVERY ARGUMENT OF BOTH THE SIDES HAS BEEN FULLY CONSIDERED BY THE TRIBUNAL. IN PARAS 76 TO 80 THE TRIBUNAL DILATED THE LEGAL P OSITION EMANATING FROM VARIOUS JUDICIAL PRECEDENTS AND HAD APPLIED THE LEGAL POSITION TO THE FACTS OF THE PRES ENT CASE. IN FACT, IN THE ABOVE PARAS, THE TRIBUNAL HAS ALSO DEALT WITH VARIOUS ARGUMENTS AND THE DECISIONS RELIED UPO N BY THE REVENUE. IN THE PRESENT MISCELLANEOUS APPLICATION, THE ARG UMENT WHICH HAS ALLEGEDLY NOT BEEN CONSIDERED THE TRIBUN AL IS CONSPICUOUS BY ITS ABSENCE. IT IS TRUE, PATENTLY CLEARLY THAT THERE IS NO ERRO R IN THE ORDER OF THE TRIBUNAL, AS ALLEGED BY THE REVENUE. T HE REVENUE IS ONLY SEEKING TO CHALLENGE THE FINAL CONC LUSION OF THE TRIBUNAL IN THE MISCELLANEOUS APPLICATION, W HICH IS CLEARLY NOT PERMISSIBLE IN LAW. K. IN PARAS 81 TO 87 THE HONBLE TRIBUNAL HAS ELABO RATELY DEALT WITH THE LEGAL POSITION REGARDING VALIDITY OF THE STATEMENTS RECORDED BY DDIT(INV) AND HAS FOLLOWED/RELIED UPON VARIOUS DECISION OF CO-ORDINAT E BENCHES OF THE TRIBUNAL. AS REGARDS THE DECISION OF THE MADHYA PRADESH HIGH COURT IN THE CASE OF CLASSICE BUILDERS, REFRRED BY THE REVENUE, THE SAME HAS BEEN SPECIFICALLY DEALT WITH AND CONSIDERED IN PARA 85 OF THE ORDER OF THE TRIBUNAL. IN VIEW OF THE AFORESAID, THERE IS CLEARLY NO MIST AKE IN THE ORDER OF THE TRIBUNAL. 23 L. ON PERUSAL OF THE CONTENTIONS OF THE REVENUE, IT IS CLEARLY EVIDENT THAT IT HAS BEEN ALLEGED THAT THE ORDER PAS SED BY THE TRIBUNAL IS A NON-SPEAKING ORDER WHEREIN THE TRIBUNAL HAS NOT, ACCORDING TO THE REVENUE ELABORAT ELY DEALT WITH THE CONCLUSION ARRIVED AT ON THE BASIS O F STATEMENTS OF VARIOUS PERSONS. THE CONTENTIONS OF THE REVENUE ARE, IT IS REITERATE D, NOTHING BUT A CLEAR ATTEMPT ON THE PART OF THE REVE NUE TO SHOW GROSS DISRESPECT TO THE ORDER OF THE TRIBUNAL. IN FACT, THERE IS A CLEAR ATTEMPT ON THE PART OF THE R EVENUE IN TRYING TO DICTATE/DIRECT NOT ONLY THE MANNER IN WHI CH THE TRIBUNAL OUGHT TO HAVE PASSED THE ORDER BUT ALSO TO DIRECT AND DICTATED THE CONCLUSION THAT THE TRIBUNAL SHOUL D HAVE ARRIVED AT. REFERENCE, AT THIS STAGE MAY BE MADE TO THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF GOPAL SUGA R VS. ITO: 40 ITR 618, WHICH HAS BEEN ELABORATELY DISCUSSED IN THE MAIN SUBMISSIONS. AT THE COST OF DUPLICITY, IT MAY HOWEVER, BE NOTED THAT IN THAT C ASE THE COURT OBSERVED THAT THE CONTENTION OF THE REVENUE T HAT THE ORDER OF THE TRIBUNAL WAS NOT INTELLIGBLEBETRA YS A REGRETTABLE LACK OF CANDOUR. THE AFORESAID DECISION IS EQUALLY APPLICABLE AND DI RECTLY DEALS WITH THE UNACCEPTABLE CONTENTIONS BEING CANVA SSED ON BEHALF OF THE REVENUE, IN CLEAR/GROSS VIOLATION OF PRINCIPLES OF JUDICIAL HIERARCH/PROPRIETY/DISCIPLIN E. M. IN PARA 92 THE HONBLE TRIBUNAL HAS SPECIFICALLY REJECTED THE CONTENTION OF THE REVENUE THAT THE FACTS RELATI NG TO AN ALTOGETHER DIFFERENT ASSESSEE CANNOT BE TAKEN INTO CONSIDERATION WHILE DECIDING THE CASE OF THE APPELL ANT. THE REVENUE IS, IN THE MISCELLANEOUS APPLICATION, INDIRECTLY SEEKING TO SUGGEST (INTACT DIRECT) THAT THE TRIBUNAL SHOULD HAVE CONSIDERED THE FACTS RELATING TO M/S. NAYYAR JEWELLERS AND SHOULD NOT HAVE REJECTED THE S AID ARGUMENT OF THE REVENUE. 24 AGAIN THERE IS CLEAR ATTEMPT ON THE PART OF THE RE VENUE IN VIOLATING ALL THE CANONS OF PRINCIPLES OF JUDICIAL HIERARCHY/PROPRIETY/DISCIPLINE. THERE IS CLEARLY NO MISTAKE IN THE ORDER OF THE TR IBUNAL REQUIRING RECTIFICATION U/S 254(2) OF THE ACT. N. THE REVENUE HAS AGAIN CHALLENGED THE CORRECTNESS OF THE FINDING/CONCLUSION OF THE TRIBUNAL. AS ELABORATELY DISCUSSED SUPRA, THIS IS CLEARLY NOT PERMISSIBLE IN LAW. IN FACT, IN PARA 101, THE TRIBUNAL NOTICED THAT TH E LETTERS MENTIONED BY THE REVENUE WERE VERY MUCH FILED BEFOR E THE CIT(A). THERE IS , THUS, NO MISTAKE APPARENT FROM RECORD I N THE ORDER OF THE TRIBUNAL. O IN PARA 103 THE TRIBUNAL BEFORE REFERRING TO AND RELYING UPON THE DECISION OF THE SPECIAL BENCH OF THE TRIBU NAL IN THE CASE OF MANOJ AGGARWAL HAS COME TO A DEFINITE FINDING THAT THE EVIDENCES AVAILABLE ON RECORD CLEA RLY ESTABLISH THAT THE APPELLANT WAS NOT PROVIDING ACCOMMODATION ENTRY. THEREAFTER, THE HONBLE TRIBUNAL HAS MERELY RELIED UPON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL I N THE CASE OF MANOJ AGGARWAL IN SUPPORT OF ITS CONCLUSION . THE HONBLE TRIBUNAL HAS NOWHERE OBSERVED THAT TH E FACTS OF THE APPELLANTS CASE ARE IDENTICAL/PARI M ATERIAL WITH THE FACTS IN THE CASE OF MANOJ AGGARWAL. THE HONBLE TRIBUNAL HAS MERELY RELIED UPON. THE RATIO EMANATING FROM THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL, IN SUPPORT OF THE SPECIFIC FINDINGS GIVEN AFTER APPRECIATING THE ENTIRE EVIDENCES PLACED ON RECORD IN THE CASE OF THE APPELLANT. 25 THE APPELLANT FAILS TO APPRECIATE AS TO HOW THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL IN PLACING RELIA NCE ON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL. P. THE CONTENTIONS OF THE REVENUE, THE SUBMISSION O F THE APPELLANT AND THE FINDINGS OF THE TRIBUNAL ON THIS ISSUE ARE CONTAINED IN PARAS 19,33, AND 90. THEREFORE, THE ALLEGATION OF THE REVENUE THAT THE ARGUMENT OF THE DEPARTMENT RELYING UPON THE CONTENT S OF PAN APPLICATION FORM FILED BY THE ASSESSEE HAS NOT BEEN CONSIDERED AT ALL IS FACTUALLY INCORRECT. Q THE HONBLE TRIBUNAL, AS DISCUSSED IN ANNEXURE A AND IN THIS ANNEXURE, HAS ELABORATELY DEALT WITH NOT ONLY ALL THE STATEMENTS OF THE APPELLANT, BUT ALSO THE THEN PREV AILING CIRCUMSTANCES AND HAS ALSO TAKEN INTO CONSIDERATION VARIOUS OTHER FACTS LIKE COMPLAINT BEING FILED BEFO RE THE CBDT AGAINST THE PRESSURE BEING EXERTED BY THE INVESTIGATING AGENCY. REFERENCE NOW BEING MADE TO A LETTER SENT BY SH. K APIL KUMAR, COUNSEL FOR THE ASSESSEE, NOWHERE SUPPORTS T HE CASE OF THE REVENUE. IN THE SAID LETTER, THE COUNSE L MERELY INFORMED ABOUT THE APPELLANT HAVING BEEN HOSPITALIZ ED AND, THEREFORE, REQUESTED FOR TIME TO APPEAR. IN VIEW OF THE AFORESAID, THE CONTENTION OF THE RE VENUE THAT AN IMPORTANT ARGUMENT HAS NOT BEEN CONSIDERED IS, IT IS RESPECTFULLY SUBMITTED, TOTALLY MISPLACED/FALLAC IOUS. R. THE ADDITIONAL EVIDENCES FILED BY THE DEPARTMENT VIDE SL. NO.69 OF THE DEPARTMENTAL PAPER BOOK (PAGES 399 TO 400) WERE ADMITTED BY THE HONBLE BENCH AND DULY TAKEN I NTO CONSIDERATION WHILE ADJUDICATING THE APPEAL. THE ARGUMENTS OF THE DEPARTMENT WERE ALSO REBUTTED BY THE APPELLANT IN THE SUBMISSIONS FILED BEFORE THE B ENCH. 26 REFERENCE TO THE SAID EVIDENCES AND THE ARGUMENTS BASED ON THE SAID EVIDENCES HAVE BEEN INCORPORATED IN PAR AS 6 AND 24 OF THE TRIBUNALS ORDER. IN THE AFORESAID CIRCUMSTANCES, THE CONTENTION OF THE REVENUE THAT THE EVIDENCES FILED AND THE ARGUMENT R AISED HAVE NOT BEEN CONSIDERED IS, IT IS RESPECTFULLY SU BMITTED, FACTUALLY INCORRECT. S. THE HONBLE TRIBUNAL HAD, VIDE SEPARATE ORDER DA TED 27.5.2009, ADMITTED THE ADDITIONAL GROUNDS OF APPEA L PREFERRED BY THE APPELLANT. IN THE SAID ORDER, THE TRIBUNAL HAS ELABORATELY DEALT WITH THE ARGUMENTS ADDRESSED ON BEHALF OF BOTH THE SIDES. THE ARGUMENT OF THE DEPARTMENT THAT THE MATTER SHO ULD BE REFERRED BACK TO THE LOWER AUTHORITIES WAS SPECI FICALLY CONSIDERED AND REJECTED BY THE HONBLE TRIBUNAL. REFERENCE, IN THIS REGARD, MAY BE MADE TO PARA 17 O N PAGE 16 OF THE ORDER DATED 27 TH MAY, 2009. THE CONTENTION OF THE DEPARTMENT THAT THE ARGUMENT S ADDRESSED HAVE NOT BEEN CONSIDERED IS, THEREFORE, I T IS RESPECTFULLY SUBMITTED, FACTUALLY INCORRECT. 7. AS REGARDS 33 POINTS, THE REPLY OF THE SAID 33 P OINTS IN THE MISCELLANEOUS APPLICATION OF THE REVENUE FROM PAGES 9 TO 57 OF THE APPLICATION OF THE REVENUE, THE ARGUMENTS AND THROU GH WRITTEN SUBMISSIONS ON BEHALF OF THE ASSESSEE POINT-WISE IS AS UNDER: POINT REPLY I ALL THESE ISSUES HAVE SPECIFICALLY BE EN CONSIDERED BY THE HONBLE TRIBUNAL IN PARA19,33,37,52,53,57, 88F AND 91. THEREFORE, THE CONTENTION OF THE REVENUE THAT THE ARGUMENTS/SUBMISSIONS HAVE NOT BEEN CONSIDERED IS FACTUALLY INCORRECT. 27 2. RENT AGREEMENT AND SUBMISSIONS BASED ON THE SAME HAVE BEEN CONSIDERED BY THE HONBLE TRIBUNAL IN PARAS 19,54 AND 88B OF THE ORDER. 3. THIS ISSUE HAS SPECIFICALLY BEEN CONSIDERED IN PARAS 19,34 AND 55 TO 57 OF THE ORDER. 4. THESE ASPECTS HAVE BEEN ELABORATELY CONSIDERED I N PARAS 32, 38 AND 97 TO 102 OF THE ORDER. 5. THESE ASPECTS HAVE BEEN ELABORATELY CONSIDERED I N PARAS 24, 34 AND 58 TO 65 OF THE ORDER. 6. THE ASPECT RELATING TO THE MANNER IN WHICH STATEMENTS OF THE APPELLANTS WERE RECORDED HAS BEEN ELABORATELY CONSIDERED IN PARAS 67 TO 75 OF THE ORDER. 7&9 BOTH THE STATEMENT SHAVE BEEN CONSIDERED IN PAR A 28 AND 88(H) OF THE ORDER. 8. THE STATEMENT HAS BEEN CONSIDERED IN PARAS 27, 3 1, 36 AND 58 TO 65 OF THE ORDER. 10. THESE STATEMENTS HAVE BEEN CONSIDERED IN PARAS 11, 23 AND 69 TO 70 OF THE ORDER. 11. THESE STATEMENTS HAVE BEEN CONSIDERED IN PARAS 20,54, 88(A), 88(B) AND 88(C) OF THE ORDER. 12. THIS ASPECT HAS BEEN SPECIFICALLY CONSIDERED IN PARAS 29,35 AND 90 OF THE ORDER. 13. ALL THESE ASPECTS HAVE BEEN CONSIDERED IN PARAS 32(A), 36, 58, 60, 61, 80 AND 105 OF THE ORDER. 14. THIS ASPECT HAS BEEN CONSIDERED IN PARAS 16, 44 , 57 AND 71 OF THE ORDER. 28 15 & 16. TRANSACTIONS WITH STATE BANK OF INDIA HAVE BEEN ELABORATELY CONSIDERED IN THE ORDER, AS DISCUSSED I N REPLY TO POINT NO. 4 SUPRA. STATEMENT OF VARIOUS PERSONS HAVE BEEN CONSIDERED IN VARIOUS PARAS OF THE HONBLE TRIBUNAL, PARTICULARLY PARA 88 OF THE ORDER. ISSUE OF DUPLICATE BILL BOOKS, BEING FOUND HAS BEE N DISCUSSED IN PARAS 39, 93 AND 94 OF THE ORDER. 17. THIS ASPECT HAS BEEN SPECIFICALLY CONSIDERED IN PARA 98 TO 101 OF THE ORDER. 18.19 & 20 VARIOUS STATEMENTS OF THE APPELLANT HAVE BEEN ELABORATELY CONSIDERED IN PARAS 67 TO 75 OF THE ORDER. 21. THESE STATEMENTS HAVE BEEN DEALT WITH BY THE TRIBUNAL IN PARAS 88(C) AND 88(G) OF THE ORDER. 22. STATEMENTS OF VARIOUS PERSONS HAVE BEEN DEALT W ITH IN VARIOUS PARAS OF THE ORDER, PARTICULARLY PARA 88 OF THE ORDER. ISSUE OF DUPLICATE BILL BOOK AND ALLEGED DISCREPANCIES IN THE BILLS HAVE ALSO BEEN CONSIDERED IN PARAS 39, 93 AND 94 OF THE ORDER. 23. THIS STATEMENT NOWHERE SUPPORTS THE CASE OF THE REVENUE, THE EXACT GRIEVANCE OF THE REVENUE HAS NOT BEEN STATED. 24. ISSUE OF BULLION TRADE WITH STATE BANK OF INDIA HAS BEEN ELABORATELY DEALT WITH IN PARAS 23, 32, 38, 96 TO 101 OF THE ORDER. 25. THIS ISSUE HAS BEEN DISCUSSED IN PARAS 22, 25 A ND 94 OF THE ORDER. 29 26 & 27 THIS ISSUE/ASPECT HAS BEEN CONSIDERED IN PA RAS 52 AND 53 OF THE ORDER. 28. STATEMENTS OF THE APPELLANT AND SUBSEQUENT RETRACTION HAVE BEEN ELABORATELY CONSIDERED IN PARAS 67 TO 75 OF THE ORDER. 29. SAME AS POINT NOS. 26 & 27. 30. THE FACT THAT THERE WAS AN INADVERTENT ERROR IN TYPING THE NAME OF THE MOTHER OF THE APPELLANT WAS POINTED OUT BY THE APPELLANT IN ITS REPLY FILED BEFORE THE TRIBUNAL. SUCH TYPOGRAPHICAL ERROR DOES NOT SUPPORT/ADVANCE THE CASE OF THE REVENUE IN ANY MANNER. FURTHER, THE DEPARTMENT BOOK CONTRADICTORY STAND SINCE IN POINT NO. 28 IT WAS ALLEGED THAT THE AFFIDAVIT WAS NEVER FILED, WHEREAS IN POINT NO. 30 IT WAS ADMITTED THAT THE AFFIDAVIT WAS FILED. 31. THIS ISSUE HAS BEEN DEALT WITH IN PARAS 32 AND 55 OF THE ORDER. 32. THE DEPARTMENT HAS NOT POINTED OUT THE ISSUE WHICH HAS BEEN DEALT WITH IN THE SUBMISSIONS BUT NOT CONSIDERED BY THE TRIBUNAL. IN MA, THE ENTIRE SUBMISSIONS HAS MERELY BEEN REPRODUCED WITHOUT APPRECIATING THAT EACH OF THE ISSUES/ARGUMENTS RAISED THEREIN HAVE BEEN CONSIDERED IN THE ORDER OF THE TRIBUNAL. 33. THIS ASPECT HAS BEEN CONSIDERED IN DETAIL BY TH E HONBLE TRIBUNAL IN PARAS 32(A) AND 104 TO 107 OF THE ORDER. 8. APART FROM THE REPLY OF THE SAID 33 POINTS, IT W AS ARGUED AND SUBMITTED AS UNDER: 30 APART FROM THE ALLEGED FACTUAL ERRORS MENTIONED IN PARAS A TO O ON PAGES 1 TO 9 OF THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE, WHICH HAVE BEEN SEPARATELY DEALT WITH IN ANNEXURES A AND B, THE REVENUE HAS ALSO REFERRED TO 33 POINTS ON PAGES 9 T O 57 OF THE MISCELLANEOUS APPLICATION. IT IS THE CASE OF THE REVENUE THAT THE AFORESAID 33 POINTS WERE RAISED IN THE WRITTEN SUBMISSIONS FILED BEFORE THE TRIBUNAL, WHICH HAVE NOT BEEN CONSIDERED AT ALL IN THE FINAL ORDER. IN THE REBUTTAL TO THE AFORESAID, IT IS RESPECTFULL Y SUBMITTED AS UNDER: IT IS, AT THE OUTSET, RESPECTFULLY SUBMITTED THAT T HE DEPARTMENT HAS REFERRED TO WRITTEN SUBMISSIONS FILED BY THE DEPART MENTAL REPRESENTATIVE ON 10 TH JUNE, 2009. IN RESPONSE TO THE SAID SUBMISSIONS, THE APPELLANT HAD ALSO FILED A PARA-WI SE REBUTTAL/REPLY ON 17 TH JUNE, 2009. THE CONTENTION OF THE REVENUE THAT THE AFORESAID 3 3 POINTS RAISED BY THE REVENUE IN THE FORM OF WRITTEN SUBMISSIONS HAVE NOT BEEN CONSIDERED AT ALL, IT IS RESPECTFULLY SUBMITTED, IS FACTUALLY INCORRECT AND GROSSLY MISPLACED. ALL THE ARGUMENTS/SUBMISSIONS MA DE IN THE ABOVE WRITTEN SUBMISSIONS WERE, IT IS RESPECTFULLY SUBMIT TED, VERY MUCH CONSIDERED BY THE TRIBUNAL, AS ELABORATED INFRA. THE TRIBUNAL HAS, IN FACT, SPECIFICALLY NOTICED THE FACT THAT THE LD. DEPARTMENTAL REPRESENTATIVE HAD FILED WRITTEN SUBMI SSIONS IN PARA 32(A) OF THE ORDER. THEREFORE, THE CONTENTION OF TH E REVENUE THAT THE WRITTEN SUBMISSIONS FILED BEFORE THE BENCH WERE NOT CONSIDERED, IT IS RESPECTFULLY SUBMITTED, IS FACTUALLY INCORRECT. THE GRIEVANCE OF THE REVENUE, IT APPEARS, IS BASED ON THE FACT THAT THE TRIBUNAL HAS NOT REPRODUCED THE ENTIRE WRITTEN SUBM ISSION FILED ON BEHALF OF THE DEPARTMENT IN THE FINAL ORDER PASSED BY THE HONBLE TRIBUNAL. IN THE RESPECTFUL SUBMISSION OF THE APPEL LANT, NON- PRODUCTION OF THE ENTIRE WRITTEN SUBMISSIONS FILED BY EITHER OF THE PARTIES IN THE FINAL ORDER PASSED BY THE TRIBUNAL C ANNOT BE THE BASIS FOR SEEKING A RECALL/REVIEW OF THE DETAILED ORDER PASSE D BY THE TRIBUNAL. 31 9. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSE E THAT IN THE ABOVE MISCELLANEOUS APPLICATION, THE REVENUE HAS TAKEN TH E FOLLOWING GROUNDS FOR SEEKING REVIEW AND RECALL OF THE ORDER PASSED BY TH E TRIBUNAL: (A) ALLEGED FACTUAL ERRORS SET OUT IN PARAS A TO O ON PAGES 1 TO 8 OF THE APPLICATION. (B) ALLEGED NON-CONSIDERATION OF ARGUMENTS AND EVID ENCES SET OUT IN PARAS P TO S ON PAGES 8 AND 9 OF THE APPLICATION . (C) NON-CONSIDERATION OF ARGUMENTS AND EVIDENCES, B EING 33 POINTS SET OUT ON PAGES 9 TO 57 OF THE APPLICATION. 9.1. IT WAS FURTHER SUBMITTED THAT THE CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION PREFERRED BY THE REVENUE ARE NOT ONLY FACTUALLY INCORRECT BUT IN FACT CONTAINS PRAYER FOR REVIEW AN D RECALL OF THE ELABORATE ORDER PASSED BY THE HONBLE TRIBUNAL, WHICH IS BEYO ND THE SCOPE AND AMBIT OF THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE MR. ROHIT JAIN INVITED OUR ATTENTION TO PR OVISIONS OF SECTION 254(2) OF THE ACT AND STATED THAT THE SAID SECTION IS ONLY INTENDED TO RECTIFY MISTAKES APPARENT FROM RECORD, I.E. OBVIOUS AND PATENT MISTA KES. 9.2. HE FURTHER INVITED OUR ATTENTION TO JUDGMENTS OF VARIOUS COURTS OF LAW: I) T.S. BALARAM, ITO VS. VOLKART BROTHERS 82 ITR 1 50 (SC) II) CIT VS. HERO CYCLES P. LTD. 228 ITR 463 (SC) III) DEVA METAL POWDERS (P) LTD VS. COMMISSIONER OF TRADE TAX UP (2008) 2 SCC 439 (SC) 32 IV) CIT VS. VARDHMAN SPINNING 226 ITR 296 (P&H) V) UPLAKSH METAL INDUSTRIES V. CIT 309 ITR 61 (P&H) VI) CIT VS. PEARL WOOLLEN MILLS ITR NO.187 OF 1998 (P& H) VII) B. LEASING & FINANCE CO. LTD. VS. CIT 163 TAXMAN 14 3 (DEL) VIII) CIT VS. MCDOWELL & CO. LTD. 310 ITR 215 (KAR) IX) ASIA RESORTS LTD. VS. CIT 245 CTR 276 (HP) X) K.K. RAVINDRAN (DECD.) BY LRS VS. ITAT & ANR. 332 I TR 569 (ORI) XI) POPULAR ENGINEERING CO. VS. ITAT 248 ITR 577 (P&H) XII) GOPAL SUGAR VS. ITO 40 ITR 618 (SC) XIII) ABDUL SATTAR VS. ITO 132 ITR 875 (KERALA) XIV) CIT VS. GOKUL CHAND AGARWAL 202 ITR 14 (CAL.) XV) CIT VS. RAMESH ELECTRIC & TRADING CO. 203 ITR 497 ( BOM.) XVI) CORROSION ROADLINES VS. DCIT 92 TTJ 631 (TM) XVII) EXPRESS NEWSPAPERS LIMITED VS. DCIT 320 ITR 12 (MAD ) XVIII) BISWANATH PRASAD & SONS VS CIT 277 ITR 265 10. AS REGARDS THE REVISED MISTAKE, IT WAS ARGUED D URING THE COURSE OF HEARING BY THE LD. COUNSEL FOR THE ASSESSEE THAT TH E DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. TEJINDER SINGH, HUF REPORTED IN 239 CTR 342 CANNOT BE MADE APPLICABLE I N THE PRESENT CASE, SINCE IN THAT CASE THE APPELLANT WAS THE PERSON WHO DECLARED JEWELLERY UNDER VDIS AND ALSO MADE SALE OF THE JEWELLERY. THE SAID APPELLANT WAS NOT A JEWELER AS THE APPELLANT IN THE PRESENT CASE WAS EN GAGED IN THE BUSINESS OF SALE AND PURCHASE OF JEWELLERY THE APPELLANTS CASE AT THE MOST CAN BE 33 COMPARED WITH THREE JEWELLERS I.E. MR. MANOJ AGGAR WAL ETC. THE LD. COUNSEL FOR THE ASSESSEE PRAYED THAT THE DECISION OF THE TRIBUNAL HAS BEEN GIVEN ON THE BASIS OF FACTS OF THE ASSESSEE THAT TH E ASSESSEE IS ENGAGED IN THE BUSINESS OF SALE AND PURCHASE OF JEWLLERY AND THERE FORE, THE SAID DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT, CANNOT BE THE BASIS OF MISTAKE APPARENT FROM RECORD IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE PRAYED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE ITAT DATED 26.06.2 009 AND FOR THE SUBMISSIONS AND ARGUMENTS MADE HEREINABOVE AND IN T HE WRITTEN SUBMISSIONS, THE REVENUE, IN FACT, IS TRYING TO GET THE ORDER REVIEWED UNDER THE GARB OF MISCELLANEOUS APPLICATION WHICH IS NOT PERMITTED UNDER SECTION 254(2) OF THE ACT. THEREFORE, THE SAID MISCELLANE OUS APPLICATION OF THE REVENUE BE REJECTED IN VIEW OF THE ARGUMENTS AND SU BMISSIONS MADE AND THE DECISIONS OF VARIOUS COURTS OF LAW RELIED UPON HERE INABOVE. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS ARGUED BY THE LD. DCIT(DR), MR. TARSEM LAL T HAT IN POINT A TO S IN REVENUES APPLICATION AT PAGES 1 TO 9, THERE ARE FACTUAL ERRORS, ERRORS ON ACCOUNT OF NON-CONSIDERATION OF THE ARGUMENTS AND E VIDENCE LED BY THE DEPARTMENT. THE ERRORS ON ACCOUNT OF FACTS ARE ENUM ERATED AT PARA A TO 34 O AND ERRORS ON ACCOUNT OF NON-CONSIDERATION OF ARGUMENTS AND EVIDENCE LED BY THE DEPARTMENT ARE ENUMERATED AT PARAS P T O S. FIRST OF ALL, WE DEAL WITH THE MISTAKES POINTED OUT IN THE APPLICATI ON OF THE REVENUE IN PARAS A TO S AS UNDER: A) AS REGARDS PARA 53 OF ITAT ORDER, THE LD. DR POI NTED OUT THAT THE FINDINGS OF TRIBUNAL IN THIS PARA ARE WRONG AN D MISPLACED AS THE REASONS RECORDED ARE NEVER THE FINDINGS OF THE AO B UT THEY ARE ONLY A PREMISE. A PREMISE CAN NEVER BE A SUBSTITUTE FOR A FACTUAL TRUTH WHICH HAD BEEN ESTABLISHED IN THE ORDER OF THE AO THAT T HE ASSESSEE WAS NOT ENGAGED IN THE BUSINESS OF SALE AND PURCHASE OF JEW ELLERY. IN THIS PARA 53, THE ITAT HAS CONSIDERED CUMULATIVE CIRCUMSTANC ES, INCLUDING THE REASONS RECORDED BY THE AO FOR REOPENING ASSESSMEN T FOR THE ASSESSMENT YEARS 1996-97 & 1997-98 AND ALSO THE FAC T THAT THE PROCEEDINGS FOR THE SAID ASSESSMENT YEARS, WHICH WE RE SUBSEQUENTLY DROPPED TO COME TO A CONCLUSION THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF JEWELLERY UPTO THE ASSESSMENT YEAR 1997 -98. THE LD. DCIT(DR), MR. TARSEM LAL HAS TRIED TO GET THE ORDER REVIEWED OF THIS BENCH, WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. WE FIND NO MISTAKE IN THE ORDER OF THE TRI BUNAL AND THE TRIBUNAL AFTER CONSIDERING ALL THE CUMULATIVE CIRC UMSTANCES HAD 35 FINALLY COME TO THE CONCLUSION IN THE SAID PARA. T HEREFORE, THIS MISTAKE POINTED OUT BY THE LD. DR IS DISMISSED. B) AS REGARDS PARA 54, THE LD. DR POINTED OUT WITH REGARD TO THE STATEMENT OF SH. JATINDER KUMAR ON 22.01.2004 AND T HE TIBUNAL HAS TOTALLY IGNORED THE STATEMENT RECORDED ON 06.01.20 03. THIS MISTAKE POINTED OUT BY THE LD. DR CANNOT BE ACCEPTED FOR TH E REASON THAT IN PARA 54, THE TRIBUNAL HAS REPRODUCED THE REPLIES GI VEN IN RESPONSE TO QUESTIONS NO. 3 & 4 AND AT PAGES 39 & 40 OF ITATS ORDER, THE SAID STATEMENT DATED 06.01.2003 HAS ALSO BEEN CONSIDERE D . AT PAGE 67 IN PARA 88(B) WHICH READS THAT THE STATEMENT OF SH. JA TINDER KUMAR ANAND RECORDED ON 06.01.2003 BY THE DDIT HAS BEEN RELIED UPON BY THE AO. A PERUSAL OF THE STATEMENT DATED 06.01.2003 WHICH IS EVIDENT FROM THE SAID ORDER AT PARA 88(B) AT PAGES 67 & 68 OF ITATS ORDER. THEREFORE, IN THIS PARA ALSO, THE LD. DCIT(D R), MR. TARSEM LAL, HAS TRIED TO GET THE ORDER REVIEWED FROM THIS BENCH, WHICH IS OUTSIDE THE SCOPE OF SECTION 254(2) OF THE ACT. C) IN PARA 55, THE LD. DCIT(DR). MR. TARSEM LAL, H AS POINTED OUT THAT THE DEPARTMENT HAD PRODUCED THE DISPATCH REGIS TER BEFORE THE ITAT TO SHOW THAT NO NOTICE OR INTIMATIONS WERE SEN T BY POST AS CLAIMED BY THE ASSESSEE. THE ITAT HAS NOT BROUGHT T HIS FACT ON RECORD. 36 IN THIS REGARD, THE ITAT HAS TAKEN INTO CONSIDERATI ON THE ENTIRE FACTS OF THE MATTER AND CONTENTIONS OF THE REVENUE THAT SUCH NOTICES MIGHT HAVE BEEN RECEIVED BY THE ASSESSEE PERSONALLY AND T HE ASSESSEE HAD ACTUALLY TAKEN THE SHOP ON RENT BASED ON THE TOTALI TY OF THE FACTS AND STATEMENTS OF VARIOUS PERSONS REFERRED IN EARLIER P ARAS. THE TRIBUNAL HAS CONSIDERED THE SAID FACTS OF DISPATCH REGISTER AND OTHER FACTS IN TOTALITY AND HAS COME TO THE CONCLUSION AND THEREF ORE, WE FIND NO MISTAKE APPARENT FROM RECORD IN THE SAID PARA 55 OF THE TRIBUNALS ORDER. THE LD. DRS CONTENTION TO GET THE ORDER REV IEWED, IS OUTSIDE THE SCOPE OF SECTION 254(2) OF THE ACT HENCE, THE S AME IS REJECTED. (D) AS REGARDS PARAS 56,57 & 58 OF ITAT ORDER, THE LD. DCIT(DR), MR. TARSEM LAL APPEARING ON BEHALF OF THE REVENUE A RGUED THAT THE ITAT IN THE SAID PARAS HAD GONE BY THE FACTS THAT T HE SALES TAX AUTHORITIES HAD ACCEPTED THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE IS ENGAGED IN THE SALE AND PURCHASE OF JEWELLERY. THE TRIBUNAL HAS NOT CONSIDERED THE STATEMENT OF SH. JATINDER KUMAR DATE D 06.01.2003. IT WAS ARGUED THAT THE TRIBUNAL HAS NOT CONSIDERED THE ARGUMENT OF THE LD. DR THAT THE ASSESSEE HAD ONLY CREATED FAADE OF GENUINENESS OF BEING A PURCHASER AND SELLER OF THE JEWELLERY. IN T HIS REGARD, IT APPEARS THAT THE LD. DCIT(DR), MR. TARSEM LAL, REQUIRES FRO M THE BENCH TO 37 RE-WRITE THE ORDER AS PER HIS DICTATES TO TAKE THE VIEW WHAT THE AO HAS TAKEN. WHEREAS IN THE SAID PARAS, THE TRIBUNAL HAS CONSIDERED THE TOTALITY OF THE FACTS IN THE EARLIER AND FOREGOING PARAS INCLUDING THE STATEMENT OF SH. JATINDER KUMAR ANAND AND THE ARGUM ENTS OF THE LD. DR , INCLUDING THE STATEMENT OF THE LANDLORD, FACTS RELATING TO REGISTRATION OF THE ASSESSEES JEWELLERY BUSINESS W ITH THE SALES TAX AUTHORITIES. THE STATEMEMT OF SH. JATINDER KUMAR AN AND AS HAS BEEN MENTIONED HEREINABOVE, HAS BEEN CONSIDERED IN PARAS 54 & 88(B) OF THE ORDER OF THE TRIBUNAL AND THEREFORE, THE ARGUM ENT OF THE LD. DCIT(DR) WITH REGARD TO THE MISTAKE IN THE SAID PAR AS IS REJECTED. SUCH ARGUMENT WHICH TANTAMOUNTS TO REVIEW OF THE OR DER OF THE ITAT IS OUTSIDE THE AMBIT OF SECTION 254(2) OF THE ACT, WHICH IS NOT PERMITTED IN THE SAID SECTION. THEREFORE, MISTAKES POINTED OUT BY THE LD. DR IN PARAS 56, 57 & 58 ARE REJECTED. (E) AS REGARDS MISTAKE E WITH REGARD TO PARAS 58 TO 64 OF THE ORDER OF THE TRIBUNAL, IT WAS POINTED OUT IN PARAS 58 TO 64 OF TRIBUNALS ORDER THAT APPLICATION U/S 144A IN THE CASE OF M/S. KAPOOR JEWELLERS HAS NOT BEEN CONSIDERED. IN THIS REGARD IN PARAS 62 & 63, THE ITAT HAS CONSIDERED THE EXPLANATION FILED U/S 144A OF THE ACT. MERE INTERPRETATION OF PARA-7 DOES NOT MEAN THAT THE SA ID ISSUE HAS NOT BEEN 38 CONSIDERED BY THE ITAT. IT HAS DULY BEEN CONSIDERED IN PARAS 62 & 63. AFTER CONSIDERING PARAS 1 TO 4 OF APPLICATION, THE ITAT HAS COME TO THE CONCLUSION THAT THE SAID THREE FIRMS HAD IN FAC T ADMITTED HAVING SOLD DIAMOND JEWELLERY TO THE ASSESSEE. THOUGH PARA 7 REFERRED BY THE LD. DR WAS AN ALTERNATIVE SUBMISSION. AS REGARDS TH E ORDERS IN THE CASE OF M/S. VINOD JEWELLERS, THE SAME HAS ALSO BEE N CONSIDERED IN PARAS 66 TO 68 OF ITAT ORDER. FROM THE APPLICATION OF THE REVENUE AND THE ARGUMENTS OF THE LD. DR, THE LD. DCIT(DR), SH. TARSEM LAL IS TRYING TO GET THE ORDER REVIEWED FROM THIS BENCH , WHICH IS OUTSIDE THE SCOPE OF SECTION 254(2) OF THE ACT, WHICH IS NO T PERMITTED. THEREFORE, THE SAID MISTAKE POINTED OUT BY THE LD. DR IN THE APPLICATION OF THE REVENUE IN PARAS 58 TO 64 OF TH E ORDER OF THE TRIBUNAL IS REJECTED. (F) IN POINT F OF THE MISCELLANEOUS APPLICATION, THE LD. DR HAS POINTED OUT A MISTAKE IN PARA 64 OF THE TRIBUNAL TH AT THE ITAT HAS GONE BY THE FALSE STATEMENT OF SH. VINOD KUMAR AND HAS NOT TAKEN COGNIZANCE OF THE FACT THAT THE AO HAD HELD HIM TO BE ONLY A CONDUIT FOR GETTING ACCOMMODATION ENTRIES FROM M/S. VISHNU JEWELLERS. IT WAS ARGUED THAT THE FINDING OF THE AO HAS BECOME FINAL AND THIS HAS LEFT NO ROOM WITH THE TRIBUNAL TO HOLD THAT SH. VINOD KUM ARS STATEMENT 39 WAS TRUE THAT THE ASSESSEE WAS ENGAGED IN THE JEWEL LERY BUSINESS. THIS APPLICATION OF THE REVENUE AND ARGUMENT OF THE LD. DCIT(DR), MR. TARSEM LAL, CANNOT BE ACCEPTED THAT ANY FINDING OF THE AO BECOMES FINAL AND THERE IS NO ROOM FOR ANY HIGHER COURT IN CLUDING THE TRIBUNAL TO HOLD THAT SH. VINOD KUMARS STATEMENT WAS TRUE A ND THE ASSESSEE WAS ENGAGED IN THE JEWELLERY BUSINESS. WHEREAS IN P ARA 64 OF ITAT ORDER, THE ASSESSMENT ORDER PASSED IN THE CASE OF M /S. VINOD JEWELERS HAS BEEN DEALT IN DETAIL. IT APPEARS THAT THE LD. D CIT(DR), MR. TARSEM LAL, REQUIRES THE BENCH TO RE-WRITE AND REVIEW THE ORDER, WHICH IS BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT. THER EFORE, THIS MISCELLANEOUS APPLICATION OF THE REVENUE WITH REGAR D TO PARA 64 IS REJECTED. (G) AS REGARDS PARA 66, THE LD. DR ARGUED THAT THE ITAT IN PARA 66 HAD OBSERVED THAT NO SELLER HAD DENIED HAVING SOLD THE JEWELLERY TO THE ASSESSEE. IT WAS ARGUED BEFORE THE BENCH BY THE THE N LD. DR THAT NO SELLER WOULD DENY SALE OF JEWELLERY TO THE ASSESSEE . IT WAS ALSO ARGUED BY THE LD. DCIT(DR), MR. TARSEM LAL, THAT THE ORDE R OF THE HONBLE MUMBAI BENCH OF THE TRIBUNAL IS NOT A GOOD ORDER AS TO WHETHER THE OR NOT M/S. VISHNU JEWELLERS IS ENGAGED IN GENUINE JEWELLERY BUSINESS. THE ITAT HAS NOT CONSIDERED THESE ARGUMEN TS OF THE LD. DR 40 BEFORE COMING TO THE CONCLUSION IN PARA 66. IN THI S REGARD, THE TRIBUNAL HAS COME TO THE CONCLUSION BY CONSIDERING THE TOTALITY OF THE FACES IN THE FOREGOING PARAS AND ON THE BASIS OF TH E FACTS, WHICH WERE BEFORE THE BENCH AND AFTER CONSIDERING ALL THE FACT S AND DECISION BEFORE IT, THE ITAT HAD DECIDED THE ISSUE IN PARA 6 6. IT APPEARS THAT THE LD. DCIT(DR), MR. TARSEM LAL, IS TRYING TO GET THE ORDER REVIEWED OR TO RE-WRITE THE ORDER AS PER HIS DICT ATES, WHICH HE HAS COMMENTED ON THE ORDER OF THE TRIBUNAL OF MUMBAI BE NCH THAT THE SAME WAS NOT A GOOD ORDER, WHICH IS NOT PERMITTED. SUCH ARGUMENTS OR DICTATES AND COMMENTS ON THE ORDERS OF THE HIGHER A UTHORITIES ARE NOT PERMITTED BY THE LD. DR. IN THE FACTS AND CIRCUMST ANCES OF THE CASE, WE FIND NO MISTAKE AS POINTED OUT BY THE REVENUE AN D ARGUED BY THE LD. DR IN PARA 66 OF THE ORDER OF THE TRIBUNAL AND THE SAME IS REJECTED. (H) AS REGARDS TO POINT H OF THE MISCELLANEOUS AP PLICATION WITH REGARD TO PARAS 67 TO 70 OF ITATS ORDER, IT WAS AR GUED BY THE LD. DCIT(DR), MR. TARSEM LAL, APPEARING FOR THE REVENUE THAT THE BENCH IN THE SAID PARAS 67 TO 70 HAS QUOTED SEVERAL STATEMENTS OF THE ASSESSEE AND THE ITAT HAS FAILED TO ASCERTAIN THE T RUTH FROM THESE STATEMENTS AND IT IS A PERVERSE ORDER OF THE ITAT A ND THERE IS AN 41 ERRONEOUS VIEW FORMED BY THE ITAT SINCE THE ITAT HA S NOT CONSIDERED THE RELEVANT CONTENTS OF THE STATEMENTS, THIS AMOUNTS TO MISTAKE APPARENT FROM RECORD UNDER SECTION 254(2) OF THE ACT. THE LD. DR TRIED TO POINT OUT VERSION IN THE STATEMENT AND THE INTERPRETATIONS WHICH SHOULD HAVE BEEN TAKEN BY TH E ITAT AND AGAIN POINTED OUT THAT THIS IS A MISTAKE APPARENT FROM RE CORD AND THE ORDER SHOULD BE RECALLED. IN THIS REGARD, IT IS NOT THE CASE OF THE REVENUE THAT NO STATEMENT OF THE ASSESSEE HAS BEEN CONSIDERED. THE STATEMENTS DATED 13.02.2002 AND 11.11.2003 REFERRED TO IN THE APPLICATION OF RE VENUE HAVE BEEN DEALT WITH IN ITATS ORDER IN PARAS 67 & 68. THERE FORE, THE TRIBUNAL HAS IN ITS WISDOM BY CONSIDERING THE TOTALITY OF TH E FACTS AND THE STATEMENTS ETC. HAVE COME TO THE CONCLUSION IN THE SAID PARAS AND WE FIND NO MISTAKE IN THE SAID PARAS 67 TO 70 OF ITAT S ORDER. THE MISCELLANEOUS APPLICATION OF THE REVENUE AND THE AR GUMENTS OF THE LD. DCIT(DR), MR. TARSEM LAL USING THE WORDS THAT THE ITAT HAS FAILED TO ASCERTAIN THE TRUTH, THAT THE ORDER IS PE RVERSE AND THERE IS ERRONEOUS VIEW FORMED, ARE OUTSIDE THE SCOPE OF SEC TION 254(2) OF THE ACT AND SUCH DICTATE SHOULD BE AVOIDED AND CANNOT B E SUBJECT MATTER 42 OF THE ARGUMENT BY THE LD. DCIT(DR), MR. TARSEM LAL IN HIS ARGUMENTS IN APPLICATION U/S 254(2) OF THE ACT. IN THE FACTS AND CIRCUMSTANCES, WE FIND NO MISTAKE APPARENT FROM RE CORD IN PARAS 67 TO 70 U/S 254(2) OF THE ACT. THUS, THE MISCELLANEO US APPLICATION OF THE REVENUE IN THIS REGARD IS REJECTED. (I) AS REGARDS PARAS 71 TO 75 OF THE ORDER OF THE ITAT, THE LD. DCIT(DR), MR. TARSEM LAL, APPEARING FOR THE REVENUE HAS ARGUED THAT CONFESSIONAL STATEMENTS OF THE ASSESSEE DATED 16.01.2003 AND 17.01.2003 WERE UNDER SUBSTANTIAL THREAT AND COERC ION, WERE THE FINDINGS OF THE TRIBUNAL IN THE SAID PARAS. IN THIS REGARD, THE LD. DCIT( DR), MR. TARSEM LAL ARGUED THAT ITAT WHILE PA SSING ORDER IN PARAS 71 TO 75 HAS MISSED TO DEAL WITH THE ARGUMENT S OF THE LD. DR THAT HAD THE ASSESSEE BEEN REALLY HUMILIATED AND PA RADED IN BAZAAR, HE WOULD NOT HAVE GONE TO THE POLICE STATION ON 07.01. 2003 FOR FILING AN FIR. IT WAS ARGUED BY THE LD. DCIT(DR), MR. TARSEM LAL THAT THE ITAT HAS FAILED TO TAKE COGNIZANCE OF THE FACT THAT THE CONFESSIONAL STATEMENTS COULD NOT BE UNDER ANY PRESSURE AS THE SAME WERE RECORDED IN THE PRESENCE OF SH. RAJAN KUMAR, CA, COUNSEL FOR THE ASSESSEE. THIS WAS NOT CONSIDERED BY THE BENCH AND THIS RENDE RS THE ORDER RECTIFIABLE UNDER SECTION 254(2) OF THE ACT. 43 IN THIS REGARD, THE TRIBUNAL IN PARAS 71 TO 75 HAS CONSIDERED THE ISSUE WITH REGARD TO NON-REPORTING OF THE MATTER TO THE H IGHER AUTHORITIES IN PARA 80 OF ITS ORDER WHERE THE REFERENCE HAS BEEN M ADE TO A LETTER WRITTEN BY AMRITSAR JEWELLERY ASSOCIATION TO CBDT C OMPLAINING AGAINST THE HARASSMENT BY THE INVESTIGATION WING OF AMRITSAR INCOME- TAX DEPARTMENT. THE FACTS OF THE STATEMENTS DATED 1 6.01.2003 & 17.01.2003 IN THE PRESENCE OF SH. RAJAN KUMAR,CA, C OUNSEL FOR THE ASSESSEE HAVE ALSO BEEN CONSIDERED IN PARA 36 OF IT ATS ORDER. THE ITAT AFTER CONSIDERING IN TOTALITY OF THE FACTS AN D CIRCUMSTANCES BEFORE IT, AT THE TIME OF PASSING OF THE ORDER, DID NOT FIND ANY MISTAKE IN THE SAID PARAS 71 TO 75 AS POINTED OUT BY THE RE VENUE AND ARGUED BY THE LD. DR. THE WORDING AGAIN USED BY THE LD. DCIT( DR), MR. TARSEM LAL IN HIS ARGUMENTS THAT THE ITAT HAS FAILE D TO TAKE COGNIZANCE OF THE FACT THAT CONFESSIONAL STATEMENTS COULD NOT BE GIVEN UNDER ANY PRESSURE IS NOT PERMITTED. (J) AS REGARDS POINT J OF THE MISCELLANEOUS APP LICATION WITH REGARD TO PARAS 76 TO 80, THE LD. DCIT(DR), MR.TARS EM LAL APPEARING FOR THE REVENUE HAS ARGUED THAT THE ITAT IN THE SAI D PARAS HAS REFERRED TO THREE DECISIONS OF HONBLE SUPREME COUR T THAT THE LEGAL 44 POSITION THAT EMERGES IS THAT OF A RETRACTED STATEM ENT, THOUGH BINDS THE ASSESSEE, ONCE RETRACTED CANNOT BE SOLE BASIS FOR M AKING THE ASSESSMENT. IT WAS ARGUED BY THE LD. DCIT(DR), MR. TARSEM LAL THAT THE TRIBUNAL HAS ALLOWED THE ASSESSEE TO COME OUT O F BIND SIMPLY BY STATING THAT HE WAS HARASSED AND HUMILIATED WHEN F ACTUAL MATRIX IS CONTRARY AND IT CONSTITUTES A MISTAKE APPARENT FROM RECORD. IN THIS REGARD, THE LD. DR HAS CHALLENGED THE ORDE R OF THE ITAT UNDER THE GARB OF MISCELLANEOUS APPLICATION U/S 254 (2) OF THE ACT, WHICH IS OUT SIDE THE SCOPE OF SECTION 254(2) OF TH E ACT. THE ITAT HAS RECORDED THE ARGUMENTS ADVANCED ON BEHALF OF THE AS SESSEE IN PARAS 17 TO 32 OF ITS ORDER. THE ITAT HAS REFERRED TO VARIOU S ARGUMENTS ADDRESSED ON BEHALF OF THE REVENUE AND THEREAFTER A RGUMENTS BY BOTH SIDES FROM PARA 67 AND THEREAFTER THE ARGUMENTS OF BOTH THE SIDES WERE CONSIDERED BY THE ITAT AND IN THE TOTALITY OF THE F ACTS AND CIRCUMSTANCES BEFORE THE BENCH AND THE LEGAL POSITI ON AS EMANATING FROM THE DECISIONS OF VARIOUS JUDICIAL PRECEDENTS H AD APPLIED THE LEGAL POSITION TO THE FACTS OF THE CASE BEFORE THE TRIBUN AL. IN THIS REGARD, WE FIND NO MISTAKE APPARENT FROM THE RECORDS U/S 254(2 ) OF THE ACT AND THE APPLICATION OF THE REVENUE WITH REGARD TO PARA S 76 TO 80 IS REJECTED. 45 (K) IN POINT K OF THE MISCELLANEOUS APPLICATION W ITH REGARD TO PARAS 81 TO 87, THE LD. DR, MR. TARSEM LAL POINTED OUT THAT THE GAZETTED OFFICER LIKE DDIT (INVESTIGATION), WHO HAD RECORDED THE STATEMENTS WERE VALID STATEMENTS AND THE TRIBUNAL IN PARA 81 TO 87 HAS WRONGLY HELD WITH REGARD TO THE RECORDING OF TH E STATEMENT BY DDIT (INV.). IN THIS REGARD, IN THE SAID PARAS 81 TO 87, THE IT AT HAS DEALT WITH THE LEGAL POSITION REGARDING VALIDITY OF THE S TATEMENTS RECORDED BY THE DDIT(INV.) AND HAS FOLLOWED THE DECISION OF CO-ORDINATE BENCHES OF THE TRIBUNAL. AS REGARDS THE DECISION OF THE MADHYA PRADESH HIGH COURT IN THE CASE OF CLASSIC BUILDERS REFERRED BY THE REVENUE, HAS BEEN CONSIDERED IN PARA 85 OF TRIBUN ALS ORDER. THEREFORE, WE FIND NO MISTAKE IN THE ORDER OF THE T RIBUNAL IN PARAS 81 TO 87 . THE CONCLUSION IN THE SAID PARAS HAS BEEN M ADE AFTER CONSIDERING THE FACTS ON RECORD, IN VIEW OF THE LEG AL POSITION IN THIS REGARD. THUS, MISCELLANEOUS APPLICATION OF THE REV ENUE IN POINT K IS REJECTED. 46 (L) AS REGARDS POINT L WITH REGARD TO PARA 88, T HE LD. DCIT(DR), MR. TARSEM LAL, HAS ARGUED THAT THE ITAT HAS NOT CO NSIDERED THE STATEMENTS OF SH. HARJINDER SINGH AND SH. JATINDER KUMAR. THE ITAT HAS PASSED A NON-SPEAKING ORDER. THE ITAT HAS NOT A PPRECIATED THE FILING OF THE DEPOSIT VOUCHERS IN THE BANK PREMISES , ALSO BY ALLOWING SH. RAKESH KUMAR THOUGH WITH HIS RETRACTION STATEM ENT WITHOUT BINDING HIM WITH THE PREVIOUS STATEMENT DATED 22.1 .2003. IT WAS ALSO ARGUED THAT THE ITAT IN ITS ORDER HAS MADE MONUMENT AL MISTAKE IN RECORDING THAT BOTH THE PERSONS NAMELY SH. YUDHVIR AND SH. SUSHIL KUMAR SAREEN HAVE TAKEN CONTRARY STAND IN THEIR STA TEMENTS AND THIS WAS NOT CONSIDERED BY THE ITAT. WITH REGARD TO THE MISTAKE POINTED OUT BY THE LD. D CIT(DR) AND ON PERUSAL OF THE FACTS ON RECORD BEFORE THE IT AT, THE ITAT HAS PASSED THE ORDER AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CONSIDERING ALL THE STATEMENTS AS REFERRED TO BY TH E REVENUE IN THE APPLICATION OF THE REVENUE AND AS ARGUED BY THE LD. DR. IT APPEARS THAT THE LD. DCIT(DR), MR. TARSEM LAL, BY USING THE WORD MONUMENTAL MISTAKE AND NON-SPEAKING ORDER IS TRYI NG TO GET THE ORDER REVIEWED, WHICH IS NOT WITHIN THE SCOPE OF SE CTION 254(2) OF THE ACT. THEREFORE, THE APPLICATION IN POINT L OF THE REVENUE IS REJECTED. 47 (M) AS REGARDS POINT M OF THE MISCELLANEOUS APPLI CATION OF THE REVENUE WITH REGARD TO PARA 92 OF ITATS ORDER, THE MISTAKE POINTED OUT BY THE LD. DR WAS THAT THE ITAT HAS NOT CONSIDE RED THE ARGUMENT OF THE LD. DR THAT IT WAS NOT SHEER COINCIDE THAT B OTH SH. RISHI GROVER AND SH, RAJ KUMAR SHOULD HAVE IDENTICAL FACTS AND I T IS A MISTAKE APPARENT FROM RECORD. IN THIS REGARD, THE ITAT HAS SPECIFICALLY REJECTED THE CONTENTION OF THE REVENUE THAT THE FACTS RELATING TO DIFFERENT ASSESSEES CANNOT BE TAKEN INTO CONSIDERATION, WHILE DECIDING THE CASE O F THE ASSESSEE. THEREFORE, IN THE FACTS AND CIRCUMSTANCES, WE FIND NO MISTAKE APPARENT FROM RECORD IN THE APPLICATION IN POINT M OF THE REVENUE.THE SAME IS REJECTED. (N) IN POINT N OF THE MISCELLANEOUS APPLICATION WITH REGARD TO PARAS 97 TO 102, IT WAS POINTED OUT BY THE LD. DR T HAT THE TRIBUNAL HAS NOT DEALT WITH THE ARGUMENTS OF THE LD. DR WITH REG ARD TO THE LETTERS DATED 13.2.2006 AND 22.2.2006. IN THIS REGARD, THE ITAT IN PARA 102 HAS NOTICED THAT THE LETTERS MENTIONED BY THE REVEN UE WERE VERY MUCH FILED BEFORE THE LD. CIT(A). THE ITAT BY CONSIDERIN G THE TOTALITY OF THE FACTS OF THE SAID LETTERS HAVE DECIDED THE ISSU E. WE FIND NO MISTAKE 48 APPARENT FROM RECORD IN THE SAID PARAS 97 TO 102 IN THE ORDER OF THE TRIBUNAL. THE MISTAKE POINTED OUT IN POINT N OF T HE MISCELLANEOUS APPLICATION OF THE REVENUE IS THUS REJECTED. (O) AS REGARDS POINT O OF THE MISCELLANEOUS APPLI CATION OF THE REVENUE, IT WAS ARGUED BY THE LD. DCIT(DR), MR. TAR SEM LAL WITH REGARD TO PARAS 104 TO 107 OF THE ORDER OF THE TRIB UNAL THAT THE TRIBUNAL HAS ERRED IN HOLDING THAT THE DECISION OF THE SPECIAL BENCH OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SH. M ANOJ AGGARWAL VS. DCIT, 113 ITD 377 IS APPLICABLE TO THE CASE OF THE ASSESSEE. THE LD. DCIT(DR), MR. TARSEM LAL POINTED OUT HOW THE SAID C ASE OF SPECIAL BENCH (SUPRA) IS DIFFERENT FROM THE CASE OF THE ASS ESSEE AND THEREFORE, THE SAID CASE IN SPECIAL BENCH HAS WRONGLY BEEN APP LIED BY THE ITAT AND THIS CONSTITUTES A MISTAKE APPARENT FROM RECORD . THE TRIBUNAL IN PARA 103 HAS GIVEN A DEFINITE FIN DING AND ON THE BASIS OF EVIDENCES AVAILABLE ON RECORD CLEARLY ESTABLISHED THAT THE ASSESSEE WAS NOT PROVIDING ACCOMMODATION ENTRY. THE ITAT HAS MERELY RELIED ON THE SPECIAL BENCH IN THE CASE OF S H. MANOJ KUMAR AND HAS NO WHERE OBSERVED THE FACTS IN THE CASE OF THE ASSESSEE ARE IDENTICAL TO THE FACTS IN THE CASE OF SH. MANOJ AG GARWAL REFERRED TO HEREINABOVE. THE TRIBUNAL HAS RELIED UPON THE RATI O EMANATING FROM 49 THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL I N THE CASE OF SH. MANOH AGGARWAL, IN SUPPORT OF THE SPECIFIC FINDINGS GIVEN AFTER APPRECIATING THE FACTS IN TOTALITY. THEREFORE, IN T HE FACTS AND CIRCUMSTANCES, WE FIND NO MISTAKE APPARENT FROM REC ORD IN POINT O AND IN PARAS 104 TO 107 OF THE ORDER OF THE TRIBUNA L. THUS, THE MISCELLANEOUS APPLICATION ON THE POINT OF O OF T HE REVENUE IS REJECTED. (P) AS REGARDS POINT P, IT WAS ARGUED BY THE LD. DR THAT THE TRIBUNAL HAS NOT CONSIDERED AT ALL THE IRREFUTABLE EVIDENCE IN THE FORM OF FORM NO.49A BEING PAN APPLICATION FORM DATED 15. 03.2001 WHERE THE ASSESSEE HAS TICKED SALARIES AS THE SOURCE OF HIS INCOME. IN THIS REGARD, THE CONTENTIONS OF THE REVENUE AND SUBMISSIONS OF THE ASSESSEE ARE CONTAINED IN PARAS 19, 33 AND 90 WHERE THE FINDINGS GIVEN BY THE TRIBUNAL ARE ON THE BASIS OF TOTALITY OF FACTS AND THEREFORE, WE FIND NO MISTAKE APPARENT FROM RECORD U/S 254(2) OF THE ACT IN POINT P OF THE APPLICATION OF THE REVENUE AND THE SAME IS REJECTED. (Q) AS REGARDS POINT Q OF THE REVENUE, IT WAS POI NTED OUT THAT PAGE 236 OF THE DEPARTMENTAL PAPER BOOK WHICH IS A LETTER SENT BY SH. 50 KAPIL KUMAR, CA, COUNSEL FOR THE ASSESSEE, THE SAME HAS WRONGLY BEEN ACCEPTED BY THE TRIBUNAL. THE TRIBUNAL HAS NOT CONSIDERED THE LD. DRS ARGUMENT IN THIS REGARD AND IT CONSTITUTES A MISTAKE APPARENT FROM RECORD. IN THIS REGARD, THE ITAT HAS DEALT WITH THE STATE MENTS OF THE ASSESSEE, THE PREVAILING CIRCUMSTANCES AT THAT TIM E AND AFTER TAKING INTO CONSIDERATION ALL THE FACTS LIKE COMPLAINT FI LED BEFORE THE CBDT AGAINST INCOME TAX DEPARTMENT FOR BEING EXERTING THE PRESSURE, THE DECISION HAD BEEN TAKEN BY THE TRIBUNAL. AS REGARDS THE LETTER SENT BY SH. KAPIL KUMAR, CA, WHICH IS MERE INFORMATION, WHO WAS SEEKING TIME FOR APPEARANCE DOES NOT EFFECT THE DECISION OF THE REVENUE, WHICH HAS BEEN TAKEN AS MENTIONED HEREINABOVE, AFTE R CONSIDERING THE TOTALITY OF THE FACTS AND VARIOUS OTHER CIRCUMSTANC ES. ACCORDINGLY, WE FIND NO MISTAKE AS POINTED OUT BY THE REVENUE IN PO INT Q OF ITS APPLICATION. THUS, THE SAME IS REJECTED. (R) AS REGARDS POINT R OF THE MISCELLANEOUS APPLICATI ON OF THE REVENUE, IT WAS ARGUED BY THE LD. DCIT(DR) BEFORE T HE ITAT THAT THERE HAS NOT BEEN GENUINE PURCHASE AND SALE OF JEW ELLERY AS JEWELLERY HAD BEEN BOUGHT AND SOLD WHICH WAS INCONSISTENT WI TH THE PREVAILING 51 MARKET RATES. A COPY OF MARKET RATES FOR GOLD AND S ILVER WAS FILED AT PAGES 399 TO 400 OF THE DEPARTMENTAL PAPER BOOK. IN THIS REGARD, ADDITIONAL EVIDENCES FILED BY THE DEPARTMENT VIDE SL. NO.69 OF THE DEPARTMENTAL PAPER BOOK AT PA GES 399 TO 400 WERE ADMITTED BY THE ITAT, WHICH WERE DULY TAKEN IN TO CONSIDERATION WHILE DECIDING THE APPEAL. THE ARGUMENTS OF THE RE VENUE WERE ALSO REBUTTED BY THE ASSESSEE. THE SAID EVIDENCES/ARGUME NTS ARE FOUND IN PARAS 6 & 24 OF THE TRIBUNALS ORDER IN THE FACTS A ND CIRCUMSTANCES, WE FIND NO MISTAKE IN POINT R OF THE MISCELLANEOU S APPLICATION OF THE REVENUE. THE SAID APPLICATION OF THE REVENUE IS, TH EREFORE, REJECTED. (S) AS REGARDS POINT S OF THE MISCELLANEOUS APPLI CATION OF THE REVENUE, IT WAS ARGUED THAT AFTER ADMISSION OF ADDI TIONAL GROUNDS OF THE ASSESSEE, THE PROPER COURSE FOR THE TRIBUNAL WA S TO REFER THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATING THE GROUNDS AND THE BENCH CANNOT SIT IN JUDGMENT OVER AN ADDITIONAL GRO UND ON FACTS. THIS GROUND OF THE DEPARTMENT HAS NOT BEEN CONSIDERED A T ALL AND IS A GLARING MISTAKE OF LAW. IN THIS REGARD, THE ITAT VIDE ITS ORDER DATED 27. 05.2009 HAS ADMITTED THE ADDITIONAL GROUNDS, WHERE THE ARGUMENT S ADDRESSED BY 52 BOTH THE SIDES HAVE BEEN DEALT WITH AND WHERE SPECI FIC REFERENCE TO THE ARGUMENTS OF THE REVENUE TO REFER THE MATTER BACK T O THE LOWER AUTHORITIES HAS BEEN GIVEN AND WHICH WAS REJECTED B Y THE TRIBUNAL. THE REFERENCE IS FOUND IN PARA 17 AT PAGE 16 OF THE ORDER DATED 27 TH MAY, 2009. THEREFORE, IN THE FACTS AND CIRCUMSTANCE S, THE MISCELLANEOUS APPLICATION OF THE REVENUE IN PARA S IS REJECTED. 12. AS REGARDS 33 POINTS WHICH THE LD. DCIT(DR), MR . TARSEM LAL HAS REFERRED AT PAGES 9 TO 57 OF THE MISCELLANEOUS APP LICATION, THOUGH THE SAME WERE NOT ARGUED AT ALL AND IT HAS NOT BEEN POINTE D OUT WHAT ACTUALLY MISTAKE IS THERE IN THE SAID 33 POINTS. HOWEVER, IN THE INTEREST OF JUSTICE, WE HAVE GONE THROUGH THE WRITTEN SUBMISSIONS OF THE RE VENUE AND THE MISTAKES SO POINTED OUT AT PAGES 9 TO 57 OF THE MISCELLANEOU S APPLICATION AND THE REPLY OF THE ASSESSEE IN THIS REGARD. WE DEAL WITH SUCH 3 3 POINTS AS UNDER: I) AS REGARDS POINT NO.1 OF THE MISCELLANEOUS APPLI CATION, WE HAVE OBSERVED THAT ALL THE ISSUES HAVE SPECIFICALLY BEEN CONSIDERED BY THE TRIBUNAL IN PARAS 19, 33, 37, 52, 53, 57, 88F & 91. 53 II) AS REGARDS MISTAKE POINT-2, THE RENT AGREEMENT AND SUBMISSIONS BASED ON THE SAME HAS BEEN CONSIDERED A T PARAS 19,54, & 88B OF TRIBUNALS ORDER. III) IN POINT-3, THE SAME HAS BEEN CONSIDERED IN PA RAS 19,34 AND 55 TO 57 OF THE TRIBUNALS ORDER. IV) AS REGARDS POINT-4 WITH REGARD TO BILLS OF THE STATE BANK OF INDIA, THE SAME HAS BEEN CONSIDERED BY THE TRIBUNA L IN PARAS 32, 38 AND 97 TO 102 OF ITS ORDER. V) AS REGARDS POINT-5, WITH REGARD TO DESCRIPTION O F JEWELLERY CONTAINED IN BILLS ISSUED BY M/S. VINOD JEWELLERS, THE SAID DESCRIPTION HAS BEEN CONSIDERED IN PARAS 24, 34 AND 58 TO 65 OF THE TRIBUNALS ORDER. VI) AS REGARDS POINT-6 WITH REGARDS TO THREAT OR C OERCION HAS BEEN CONSIDERED IN PARAS 67 TO 75 OF ITATS ORDER. VII) AS REGARDS POINTS-7 & 9 WITH REGARD TO THE STA TEMENTS OF SH. YUDHIVIR AND SH. SUSHIL KUMAR, THE SAME HAVE BEEN C ONSIDERED IN PARAS 28 AND 88(H) OF THE ITATS ORDER. VIII) AS REGARDS POINT-8 WITH REGARD TO THE STATEME NTS OF SH. SATISH KUMAR, THE SAME HAVE BEEN CONSIDERED IN PARAS 27,31 , 36 AND 58 TO 65 OF THE TRIBUNALS ORDER. 54 IX) AS REGARDS POINT-10 WITH REGARD TO THE STATEMEN TS OF SANJAY GROVER BROTHER OF THE ASSESSEE, THE SAME HAVE BEEN CONSIDERED IN PARAS 11, 23 AND 69 TO 70 OF THE TRIBUNALS ORDER. X) AS REGARDS POINT-11 WITH REGARD TO THE STATEMENT S OF SH. JATINDER ANAND, VIKASH SETH AND SH. ASHOK KUMAR, TH E SAME HAVE BEEN CONSIDERED IN PARAS 20,54, 88(A), 88(B) AND 88 (C) OF THE TRIBUNALS ORDER. XI) AS REGARDS POINT 12 WITH REGARD TO THE TRANSACT IONS WITH M/S. BABA NAGA RICE MILLS, THE SAME HAVE BEEN CONSIDERED BY THE TRIBUNAL IN PARAS 29,35 AND 90 OF ITS ORDER. XII) AS REGARDS POINT-13 WITH REGARD TO THE COMPLAI NT IN THE FORM OF RESOLUTION FILED BY AMRITSAR JEWELLERS ASSOCIATION TO THE HIGHER AUTHORITIES, THE SAME HAS BEEN CONSIDERED IN PARAS 32(A), 36, 58, 60, 61, 80 AND 105 OF THE TRIBUNALS ORDER. XIII) AS REGARDS POINT-14, WITH REGARD TO BANK STA TEMENT OF THE ASSESSEE WHEREIN CASH HAS BEEN DEPOSITED, THE SAME HAS BEEN CONSIDERED IN PARAS 16, 44, 57 AND 71 OF THE ORDER OF THE TRIBUNAL. XIV) AS REGARDS POINTS-15 & 16 WITH REGARD BULLION TRADE WITH STATE BANK OF INDIA AND STATEMENTS OF VARIOUS PERSONS AND BILL BOOKS, THE 55 SAME HAVE BEEN CONSIDERED IN PARAS 32, 38, 97 TO 1 02, 88, 39, 93 AND 94 OF THE ORDER OF THE TRIBUNAL. XV) AS REGARDS POINT-17 WITH REGARD TO DOCUMENTS I NSERTED/PLANTED IN THE FILE OF THE CIT(A), THE SAME HAVE BEEN CONSI DERED IN PARAS 98 TO 101 OF THE TRIBUNALS ORDER. XVI) AS REGARDS POINTS 18, 19 & 20 WITH REGARDS TO THE STATEMENTS OF THE ASSESSEE, THE SAME HAVE BEEN CONSIDERED IN PARA S 67 TO 75 OF THE TRIBUNALS ORDER. XVII) AS REGARDS POINT-21 WITH REGARD TO THE STATEM ENTS OF SH. HAKUMAT RAI AND SH. VIJAY KUMAR, THE SAME HAVE BEEN DEALT WITH BY THE TRIBUNAL IN PARAS 88(E) AND 88(G) OF ITS ORDER. XIX) AS REGARDS POINT 22, WITH REGARD TO THE STA TEMENTS OF SH. VIJAY GUPTA, SH. KULJAS RAI AND OTHERS, THE SAME HA S BEEN CONSIDERED IN PARAS 88, 39,93 & 94 OF THE TRIBUNALS ORDER. XX) AS REGARDS POINT-23, WITH REGARD TO THE STATEM ENT OF SH. KAPIL KUMAR, WE FIND NO MISTAKE IN THIS REGARD AND NO SPE CIFIC REFERENCE HOW THE MISTAKE HAS CREPT HAS BEEN BROUGHT ON RECOR D. XXI) AS REGARDS POINT-24, WITH REGARD BOOKS OF ACCO UNT IMPOUNDED BY DDIT, THE SAME HAS BEEN CONSIDERED IN PARAS 23, 32, 38, 96 TO 101 OF THE TRIBUNALS ORDER. 56 XXII) AS REGARDS POINT-25 WITH REGARD TO FIR REGARD ING LOSS OF BOOKS OF ACCOUNT, THE SAME HAS BEEN DEALT WITH IN PARAS 2 2, 25 AND 94 OF THE ITATS ORDER. XXIII) AS REGARDS POINTS-26 & 27 WITH REGARD TO THE DROPPING OF PROCEEDINGS INITIATED U/S 148 FOR THE ASSESSMENT YE ARS 1996-97 AND 1997-98 AND AUDIT REPORT FOR THE ASSESSMENT YEAR 19 98-99, THE SAME HAS BEEN CONSIDERED IN PARAS 52 AND 53 OF THE ITAT S ORDER. XXIV) AS REGARDS POINT-28 WITH REGARD TO RETRACTION FILED BY THE ASSESSEE BEFORE THE INCOME-TAX AUTHORITIES, THE SAM E HAS BEEN CONSIDERED IN PARAS 67 TO 75 OF ITATS ORDER. XXV) AS REGARDS POINT-29, WITH REGARD TO DROPPING OF PROCEEDINGS BY THE DEPARTMENT FOR CERTAIN ASSESSMENT YEARS, THE SA ME HAS BEEN CONSIDERED BY THE TRIBUNAL IN PARA 52 & 53 OF ITS ORDER. XXVI) AS REGARDS POINT-30 WITH REGARD TO INADVERTEN T MISTAKE IN RECORDING NAME OF MOTHER OF THE ASSESSEE IN THE AFF IDAVIT FILED BEFORE THE INCOME-TAX AUTHORITIES, IN THIS REGARD, THERE W AS AN INADVERTENT ERROR IN TYPING THE NAME OF THE MOTHER OF THE APPEL LANT AS POINTED OUT BY THE APPELLANT IN ITS REPLY FILED BEFORE THE TRIB UNAL. THIS STAND BY THE DEPARTMENT AT THIS JUNCTURE FOR FILING THE AFFI DAVIT OR NOT FILING THE AFFIDAVIT DOES NOT CONSTITUTE A MISTAKE APPARENT FR OM RECORD. 57 XXVII) AS REGARDS POINT-31 WITH REGARD TO DELIVERY OF CORRESPONDENCES AT THE ADDRESS OF THE ASSESSEE, THE SAME HAS BEEN D EALT WITH IN PARAS 32 AND 55 OF THE TRIBUNALS ORDER. XXVIII) AS REGARDS POINT-32 WITH REGARD TO THE REPL Y TO THE SUBMISSIONS FILED ON BEHALF OF THE ASSESSEE BEFORE THE TRIBUNAL, NOTHING HAS BEEN POINTED OUT BY THE REVENUE ON TH E ISSUE WHICH HAS NOT BEEN CONSIDERED BY THE TRIBUNAL. WHEREAS THE E NTIRE SUBMISSIONS HAVE BEEN REPRODUCED IN THE ORDER OF THE TRIBUNAL. XXIX) AS REGARDS POINT-33 WITH REGARD TO THE DECISION OF THE SPECIAL BENCH IN THE CASE OF SH. MANOJ AGGARWAL, THE SAID D ECISION HAS BEEN CONSIDERED BY THE TRIBUNAL IN PARAS 32(A) AND 104 T O 107 OF THE TRIBUNALS ORDER. 13. FROM THE SAID 33 POINTS RAISED BY THE REVENUE AND AFTER GOING THROUGH THE RECORD AND SUBMISSIONS OF BOTH THE PART IES, THE TRIBUNAL HAS CONSIDERED EACH AND EVERY SUBMISSION AND EVIDENCE A ND FACTS PLACED ON RECORD BY THE REVENUE INCLUDING THE WRITTEN SUBMISS IONS. THEREFORE, THE APPLICATION OF THE REVENUE THAT THE ITAT HAS NOT CO NSIDERED AT ALL THE WRITTEN SUBMISSIONS OF THE REVENUE IS FACTUALLY INC ORRECT IN VIEW OF OUR OBSERVATIONS HEREINABOVE AND THEREFORE APPLICATION OF THE REVENUE WITH REGARD TO SAID 33 POINTS ALONGWITH APPLICATION OF T HE REVENUE IN PARAS A 58 TO S MENTIONED HEREINABOVE IS REJECTED. WE HAVE O BSERVED THAT THE LD. DCIT(DR), MR. TARSEM LAL IN THE SAID MISCELLANEOUS APPLICATION HAS TRIED TO GET THE ORDER REVIEWED BY THIS BENCH WHICH IS OU TSIDE THE SCOPE OF SECTION 254(2) OF THE ACT THE MISTAKE UNDER SECTION 254(2) OF THE ACT HAS TO BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. THIS VIEW IS FORT IFIED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF T.S. BALAR AM, ITO VS. VOLKART BROTHERS REPORTED IN 82 ITR 50 . AS PER DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF C.I.T. VS. HERO CYCLES PVT. LTD. AND OTHERS, REPORTED IN 228 ITR 463, RECTIFICATION UNDER SECTION 154 CAN ONLY BE MADE WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFF ICER PASSING THE ORDER BECOMES APPARENT FROM THE RECORD. RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. IN THE PRESENT MISCELLANEOUS APPLICATION OF THE REVENUE, THE LD. DCIT(DR), MR. TARSEM LAL HAD TRIED TO ARGUE THE WHOLE APPEAL UNDER THE GARB OF MISTAKE APPARENT FROM RECO RD UNDER SECTION 254(2) OF THE ACT. IT IS AN APPLICATION UNDER SECTION 254( 2) OF THE ACT WHICH HAS GOT LIMITED APPLICATION, IT SHOULD BE A GLARING AND PAT ENT MISTAKE, THE MISTAKE SHOULD NOT REQUIRE ANY LONG DRAWN PROCESS OF REASON ING. IT DOES NOT COVER 59 THE REVIEW OF THE ORDER, AS WAS THE INTENTION OF TH E LD. DCIT(DR), MR. TARSEM LAL, IN THE PRESENT APPLICATION, WHO HAD BEE N POINTING OUT THE FAULT IN UNDERSTANDING THE FACTS OF THE CASE BY THE ITA T AND WANTED THE ORDER TO BE RE-WRITTEN. EACH AND EVERY MISTAKE POINTED OUT B Y THE LD. DCIT(DR), MR. TARSEM LAL WAS CAPABLE OF FULL DEBATE AND IN LO NG DRAWN PROCESS WHICH IS NOT PERMITTED IN LAW AS HELD AND FORTIFIED BY TH E DECISIONS OF VARIOUS COURTS OF LAW RELIED UPON AS UNDER: I) DEVA METAL POWDERS PVT. LTD. COMMISSIONER TRADE TAX U.P.(2008) 2 SCC 439 SC). II) CIT VS. VARDHMAN SPINNING 226 ITR 296 (P&H) III) UPLASKHSH METAL INDUSTRIES VS. CIT 309 ITR 61 IV) CIT VS. PEARL WOOLLEN MILLS ITR NO.187 OF 1998 (P& H) V) H.B. LEASING AND FINANCE CO. LTD. VS. CIT 163 TAXMA N 143 (DELHI). VI) ASIA RESORTS LIMITED VS. CIT 245 CTR 276. VII) K.K. RAVINDRAN (DECD. BY LRS) V. ITAT & ANRS. 332 ITR 569. 13. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS CLEARLY OUTSIDE THE SCOPE AND AMBIT OF THE PROVISIONS OF SECTION 254(2) OF THE ACT AND THE RE IS NO FACTUAL ERROR FOUND IN THE SAID ORDER OF THE ITAT, AMRITSAR BENCH, AMRI TSAR, DATED 26 TH JUNE, 60 2009 PASSED IN ITA NOS. 198 TO 202(ASR)/2006 FOR TH E ASSESSMENT YEARS 1998-99 TO 2002-03. THE TRIBUNAL IN ITS ORDER DATE D 26.06.2009 HAS DULY CONSIDERED ALL THE ARGUMENTS ADVANCED BY THE LD. D R APPEARING FOR THE REVENUE. BESIDES, ALL THE EVIDENCES AVAILABLE ON RE CORD AND ALL THE WRITTEN SUBMISSIONS PLACED ON RECORD. WERE DULY CONSIDERED BY THE TRIBUNAL, WHILE DECIDING THE APPEALS OF THE ASSESSEE IN THE SAID OR DER IN ITA NO. 198 TO 202(ASR)/2006 FOR THE ASSESSMENT YEARS 1998-99 TO 2 002-03. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IN E ACH AND EVERY POINT IN A TO S AND IN 33 POINTS IS HIGHLY DEBATABLE WHI CH REQUIRES A LONG DRAWN PROCESS OF REASONING AND DEBATE AND, THEREFORE, THE SAID MISCELLANEOUS APPLICATION FOR ALL THE FIVE YEARS IN MA NOS. 55 TO 59(ASR)/2010 IS REJECTED. 14. AS REGARDS, THE REVISED GROUNDS IN THE MISCELLA NEOUS APPLICATION WITH REGARD TO THE DECISION OF CIT VS. TEJINDER SINGH HU F, REPORTED AT 239 CTR 432 OF THE HONBLE PUNJAB & HARYANA HIGH COURT, THE SAID CASE IS NOT APPLICABLE IN THE PRESENT FACTS OF THE CASE SINCE A S ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING THAT THE PRESENT CASE OF THE ASSESSEE IS THAT OF A JEWELLER AND THAT OF CIT VS. TEJINDER SINGH HUF (SUPRA) IS OF A PERSON WHO DECLARED JEWELLERY UNDER VDIS. T HEREFORE, WE FIND NO 61 MISTAKE APPARENT FROM RECORD IN THIS REGARD AND THE REVISED MISCELLANEOUS APPLICATION OF THE REVENUE IS REJECTED. 15. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS O F THE REVENUE IN M.A. NOS.55 TO 59(ASR)/2010 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH JUNE, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26TH JUNE, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. RISHI GROVER, AMRITSAR. 2. THE ACIT, CIR.IV, AMRITSAR. 3. THE CIT(A), ASR 4. THE CIT, ASR 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.