Shri Abdul Aziz Abdul Rashid Shaikh, Surat V. The Income tax Officer, Ward-5(1), Surat

MA 61/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9203 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-02-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 28-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: J P SHAH
• Keywords: Unexplained investment; Gift; Opportunity of being heard; Additional evidence; Reasonable cause
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI D.K. TYAGI, JM AND SHRI A. MOHAN ALANK AMONY, AM) M. A. NO. 61/AHD/2011 ((IN ITA NO.1895/AHD/2010 AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH, 1/93, GULISTAN HOUSE, 1 ST FLOOR, GOLANDAZ STREET, NANPURA, SURAT P. A. NO. AEQPS 5609 K VS THE INCOME TAX OFFICER, WARD -5 (1), SURAT (APPLICANT) (RESPONDENT) APPLICANT BY SHRI J. P. SHAH, AR RESPONDENT BY SHRI Y. P. VERMA, SR. DR DATE OF HEARING: 02-11-2012 DATE OF PRONOUNCEMENT: 23-11-2012 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE ASSESSEE FOR RECTIFICATION OF THE FINDING IN THE ORDER OF THE TRIBUNAL DATED 21-01-2011 PASSED IN ITA NO.1895/AHD /2010 FOR THE ASSESSMENT YEAR 2007-08, WHEREIN IT WAS PRAYED IN P ARA (3) PAGE 11 OF THE MISC. APPLICATION AS UNDER: (3) IT IS, THEREFORE, RESPECTFULLY SUBMITTED THAT IN VIEW OF THE AFOREMENTIONED DISCUSSION, THE HON. TRIBUNAL IN MAT TERS RELATING TO SET ASIDE ASSESSMENT MAY GIVE APPROPRIA TE DIRECTIONS AND AS REGARDS THE THIRD ISSUE WHERE THE ADDITION HAS BEEN CONFIRMED, THE MATTER MAY KINDLY BE RESTORED T O THE ASSESSING OFFICER TO CONSIDER THE EVIDENCE FILED WI TH THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AND NO T ACCEPTED BY HIM AND DECIDE THE MATTER. 2. THE ASSESSEE IN HIS MISC. APPLICATION SUBMITTED AS UNDER: MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 2 2) THERE WERE PRIMARILY THREE ISSUES ADJUDICATED B Y THE TRIBUNAL IN ITA. NO. 1895/AHD/2010 FOR THE ASSESSME NT YEAR 2007-08 AND THE SAME ARE STATED HEREIN BELOW:- (A) UNEXPLAINED INVESTMENT OF RS.29,98,476/- BEING DEPOSIT OF BROTHER OF THE APPELLANT VIZ. MOHAMMAD RAFIQ ABDUL RASHID SHAIKH. (B) UNEXPLAINED INVESTMENT IN FDR OF RS.3,95,902/- (C ) ADDITION U/S. 68 OF THE ACT, AMOUNTING TO RS.5,00,000/-. 2.1 REGARDING FIRST ISSUE, THE ASSESSEE SUBMITTED A S UNDER:- (A) (I) AS REGARDS THE FIRST ISSUE, THE CASE OF THE ASSESSEE IS THAT IN BANK A/C. NO.17771 WITH BANK OF BARODA OF MOHAMMAD RAFIQ ADUL RASHID SHAIKH, THE ASSESSEE ALONG WITH TWO OTHERS VIZ. MOTHER OF THE ASSESSEE AND ANOTHER BROTHER WAS JOINT HOLDER. THE CASE OF THE A. O. IS THAT THE ASSESSEE DEPOSITED THE ENTIRE AMOUNT OF RS.29,98,476/. THE ASSESSEES CONTENTION WAS THAT THE ENTIRE DEPOSIT WAS MADE BY MOHAMMAD RAFIQ ABDUL RASHID SHAIKH WHOSE ACCOUNT IT WAS AND WHO HAD BY LETTER DATED 24-11-09 (P. 18-19) NOT ONLY ACCEPTED THE FACT OF ENTIRE DEPOSIT MADE IN HIS ACCOUNT SHOWN IN HIS BOOKS OF ACCOUNT, REFLECTED IN HIS BALANCE SHEET (P.22) AND ATTACHED COMPLETE COPIES OF BANK AND CASH ACCOUNT FROM HIS BOOKS (P.23-24) TO ESTABLISH THAT ALL THE DEPOSITS WERE MADE BY HIM AND REFLECTED IN HIS BOOKS. (A) (II) THE ASSESSING OFFICER FOUND THAT SOME BANK PAY-IN-SLIPS WERE FILLED BY THE ASSESSEE. IT IS RESPECTFULLY SUBMITTED THAT THE HON. TRIBUNA L HAS WRONGLY STATED THAT SEVERAL TRANSACTIONS WERE MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 3 DONE UNDER THE SIGNATURE OF THE ASSESSEE WHEN THAT WAS NOBODYS CASE. THE HON. TRIBUNAL FURTHER STATED THAT THE ASSESSIN G OFFICER VERIFIED ALL THE INCOME-TAX RETURNS OF HIS BROTHER AND FOUND THAT THEY DID NOT CONTAIN THE CORROBORATIVE EVIDENCE SUCH AS BALANCE SHEET & PROFIT & LOSS A/C. CONTAINING ALLEGED DEPOSITS MADE BY THE BROTHER OF THE ASSESSEE. THIS IS FACTUALLY INCORRECT BECAUSE BALANCE SHEET WAS FILED AND AS MENTIONED EARLIER (P-22), CASH BOOK AND ENTIRE ACCOUNT OF BANK WERE FILED (P23-24) SHOWING THE DEPOSITS MADE ENTIRELY BY THE BROTHER OF THE APPELLANT. (A) (III) IN PARA 3, THE HON. TRIBUNAL HAS STATED T HAT BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ASSESSEE HAS FILED AFFIDAVIT STATING THAT HE HAS NOT MADE ANY DEPOSIT IN THAT BANK ACCOUNT. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) REJECTED THIS AFFIDAVIT AS IT DID NOT SATISFY THE CONDITIONS UNDER RULE 46A (1). THE ABOVE STATEMENT IS FACTUALLY INCORRECT BECAUSE THE AFFIDAVIT (P.11-12) WAS FILED WITH THE ASSESSIN G OFFICER AND NOT BEFORE THE COMMISSIONER OF INCOME- TAX (APPEALS). THE CIT(APPEALS) REJECTED THE AFFIDAVIT NOT BECAUSE IT DID NOT SATISFY THE CONDIT ION UNDER RULE 46A (1) BUT BECAUSE THE ASSESSEE COULD NOT PRODUCE THE EVIDENCE TO SUPPORT THE FACT OF DEPOSIT NOT HAVING BEEN MADE BY HIM. NOBODY CAN GIVE NEGATIVE EVIDENCE. (A) (IV) AGAIN IN PARA 4 IT IS MENTIONED IN THE OR DER AS UNDER:- 4. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT ACCOUNT IS IN JOINT NAMES AND EVERY BODY HAS DEPOSITED THEREIN. HIS BROTHER MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 4 HAD GIVEN HIM POWER OF ATTORNEY AND, THEREFORE, HE HAD DEPOSITED THE MONEY OF HIS BROTHER IN THE BANK. IT IS RESPECTFULLY SUBMITTED THAT THIS IS ALSO FACTUALLY INCORRECT BECAUSE IT HAD ALWAYS BEEN THE CONSISTENT STAND OF THE ASSESSEE AT ALL STAGES THAT ONLY ASSESSEES BROTHER MOHAMMAD RAFIQ ABDUL RASHID SHAIKH HAD DEPOSITED MONEY IN HIS BANK ACCOUNT AND NO JOINT HOLDER HAD DEPOSITED MONEY THEREIN. FURTHER, THE ASSESSEES BROTHER HAD NOT GIVEN ANY POWER OF ATTORNEY AND THAT WAS NEVER SUBMITTED NOR HAS HE EVER STATED THAT THE ASSESSEE HAD DEPOSITED MONEY OF HIS BROTHER IN THE BANK. ULTIMATELY BASED ON THE ABOVE, THE HON. TRIBUNAL CAME TO THE FOLLOWING INCORRECT CONCLUSION IN PARA 6. IN OUR CONSIDERED VIEW, THE ASSESSEE HAS FAILED TO ESTABLISH THAT MONEY BELONGED TO HIS BROTHER. (A) (VI) IT IS RESPECTFULLY SUBMITTED THAT THIS IGN ORES THE EVIDENCE TO WHICH ATTENTION WAS DRAWN OF THE HON. TRIBUNAL OF THE CASH BOOK, BANK BOOK AND BALANCE SHEET OF MOHAMMAD RAFIQ ABDUL RASHID SHAIKH (P.18-40). IN PARA 6 THE HON. TRIBUNAL ALSO COME TO ANOTHER CONCLUSION THAT THERE WERE THREE JOINT OWNERS. THESE THREE PERSONS INCLUDING ASSESSEE HAD ONLY THEIR NAMES BUT DID NOT OWN ANY AMOUNT. (VII) BASED ON THE ABOVE, THE HON. TRIBUNAL HAS DIRECTED THAT WHERE THE ASSESSEE FILLED UP THE PAY IN SLIPS, TH E MONEY DEPOSITED IN THE BANK AS PER SUCH SLIPS WOULD BELONG TO THE ASSESSEE AND MONEY DEPOSITED THROUGH THE SI0GNATURES OF OTHERS WOULD BELONG TO THE OTHERS. MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 5 THE ABOVE CONCLUSION WOULD INDICATE THAT ALL THE PAY IN SLIPS WERE FILLED UP BY THE ASSESSEE AND MONEY DEPOSITED BY HIM WHEN AS CONTENDED BY THE ASSESSEE ONLY FOR A FEW DAYS WHEN THE ASSESSEES BROTHER HAD GONE FOR HAJ THAT THE ASSESSEE FILLED U P THE PAY-IN-SLIPS FOR DEPOSIT OF MONEY OF BROTHER. (A) (VIII) THE FURTHER CONCLUSION, THEREFORE, OF TH E HON. TRIBUNAL IS THAT THE AO WILL ENQUIRE AND WHERE TH E ASSESSEE HAS FILLED UP THE PAY IN SLIPS, THE MONEY DEPOSITED IN BANK AS PER SUCH SLIPS WOULD BELONG TO THE ASSESSEE AND MONEY DEPOSITED THROUGH THE SIGNATURES OF OTHERS WOULD BELONG TO OTHERS. THUS THE THREE OWNERS WOULD HAVE TO SEPARATELY EXPLAIN THE MONEY DEPOSITED UNDER THE SIGNATURE. THE QUESTION OF MONEY DEPOSITED THROUGH THE SIGNATURE OF OTHERS IS NOT AT ALL REQUIRED TO BE BROUGHT IN A S NOBODY NEITHER THE ASSESSING OFFICER NOR THE ASSESSEE HAD CLAIMED THAT OTHER TWO JOINT HOLDERS HAD ALSO OR EVEN THE ASSESSEE HAD DEPOSITED ANY MONEY. IT IS, RESPECTFULLY SUBMITTED THAT THE DIREC TION TO RESTORE THE MATTER TO THE EXTENT IT IS NOT FOUND SATISFACTORILY EXPLAINED, ADDITION MAY BE MADE WOULD NOT BE CORRECT. IT IS MOST RESPECTFULLY SUBMITTED THAT DIRECTIONS OUGHT TO COVER THE EVIDENCE OF ENTRIES IN THE CASH BOOK AND BOOKS OF MOHAMMAD RAFIQ ABDUL RASHID SHAIKH TO BE EXAMINED BY THE ASSESSING OFFICER TO FIND OUT WHETHER AND TO WHAT EXTENT MONEY HAS BEEN DEPOSITED BY HIM IN HIS BANK ACCOUNT. (A) (IX) WHAT IS MATERIAL IS NOT WHO FILLS IN PAY I N SLIPS BUT WHOSE MONEY IT IS AND IF THIS CAN BE SATISFACTORILY EXPLAINED, IT IS RESPECTFULLY SUBMIT TED THAT THE ASSESSING OFFICER SHOULD BE DIRECTED NOT T O MAKE ANY ADDITION. (A) (X) IT IS RESPECTFULLY SUBMITTED THAT THE HON. TRIBUNAL HAS NOT CORRECTLY CONSIDERED THE FACTS AND , MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 6 THEREFORE, HAS GIVEN AN INCORRECT DIRECTION IN RESTORING THE MATTER TO THE ASSESSING OFFICER. 3. ON THIS ISSUE WE HAVE TAKEN NOTE OF THE DECISION OF THE TRIBUNAL EXTRACTED HEREUNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE ASSESSEE HAS FAILED TO ESTABLISH THAT MONEY BELONGED TO HIS BROTHER. IT WAS ALSO CLAIMED BEFORE US THAT EVEN THE ACCOUNT IS IN THE NAME OF THE MOTHER, THUS THERE WERE THREE JOINT OWN ERS. IT IS UNDISPUTED FACT THAT THE ASSESSEE HAS FILLED UP THE PAY IN SLIPS AND DEPOSITED THE MONEY IN THE BANK. THEREFORE, THE AO WILL ENQUIRE AND WHERE THE ASSESSEE HAS FILLED UP THE PA Y IN SLIPS, THE MONEY DEPOSITED IN THE BANK AS PER SUCH SLIPS W OULD BELONG TO THE ASSESSEE AND MONEY DEPOSITED THROUGH THE SIGNATURES OF OTHERS WOULD BELONG TO OTHERS. THUS T HE THREE OWNERS WOULD HAVE TO SEPARATELY EXPLAIN T HE MONEY DEPOSITED UNDER THEIR SIGNATURES. TO THE EXTENT IT IS NOT FOU ND SATISFACTORILY EXPLAINED AN ADDITION MAY BE MADE. WITH THE ABOVE D IRECTION, WE RESTORE THE MATTER TO THE FILE OF AO. ACCORDINGL Y, THIS GROUND OF ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES . 4. WITH REGARD TO ISSUE NO.2 VIZ. UNEXPLAINED INVES TMENT IN FDR OF RS.3,95,902/-, THE ASSESSEE IN HIS MISC. APPLICA TION HAS SUBMITTED AS UNDER: (B) (I) AS REGARDS THE OTHER TWO ISSUES VIZ. INVES TMENT IN F. D. WITH BANK OF RS.3,95,902 AND AMOUNT GIVEN TO ASSESSEE BY LATE FATHER OF THE ASSESSEE, THESE COUL D NOT BE DISCUSSED AT THE HEARING BEFORE THE HON. TRIBUNA L. THE EVIDENCE AND DETAILS THEREOF COULD NOT BE SUBMITTED BEFORE THE ASSESSING OFFICER BUT ONLY BEFORE THE LEARNED CIT(APPEALS). THEY RELATED TO THE AMOUNTS WHICH BELONGED TO LATE FATHER OF ABDUL RASHID ABDUL AZIZ SHAIKH WHO WAS SERIOUSLY ILL DURING THE COURSE OF ASSESSME NT PROCEEDINGS OF THE APPELLANT AND DIED IN THE COURSE OF MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 7 ASSESSMENT PROCEEDINGS. THEREFORE, THE ASSESSEE COU LD NOT PRODUCE EVIDENCE BEFORE THE ASSESSING OFFICER W HICH WOULD COME FROM HIS FATHER AND, HENCE, COULD BE PRODUCED ONLY BEFORE THE LEARNED CIT(A). ON THE BAS IS OF ABOVE SUBMISSIONS, THE HON. JUDICIAL MEMBER DIRECTE D IN OPEN COURT THAT THESE EVIDENCE AND DETAILS WHICH WE RE NOT CONSIDERED BECAUSE OF RULE 46A BE ADMITTED AND THAT THE RESTORATION OF THESE MATTERS BE DONE TO A. O. W ITH A DIRECTION TO EXAMINE THE EVIDENCE. CONSEQUENTLY THE RE WAS NO OCCASION FOR THE ASSESSEES REPRESENTATIVE T O EXPLAIN THE DETAILS AND EVIDENCE WHICH WERE IN PAPE R BOOK. (B) (II) HOWEVER, IT IS FOUND THAT DESPITE DIRECTIO N IN THE OPEN COURT BY HON. JUDICIAL MEMBER, IN THE ORDER PA SSED, THE HON. TRIBUNAL HAS DISCUSSED THE ABOVE TWO ISSUE S AND CERTAIN DIRECTION ISSUED WHICH DO NOT APPEAR TO BE CORRECT AND CERTAIN OBSERVATIONS MADE ARE FACTUALL Y INCORRECT AS UNDER:- (B)(III) IN PARA 7 IT IS MENTIONED THAT THE LD. C ITA) ASSESSEE SOUGHT TO SUBMIT ADDITIONAL EVIDENCE IN TH E FORM OF A LETTER DATED 18.2.10 FROM NASEEMBANU ABDULRASH ID SHAIKH CONFIRMING THE FACT THE FDR BELONGED TO HIS LATE FATHER. WHEN THE EVIDENCE WAS NOT CONSIDERED BY TH E LEARNED CIT(A) AS FILED IN VIOLATION OF RULES 46A T HERE WAS NO QUESTION OF MAKING ANY REFERENCE TO THE OBSERVAT IONS OF THE LEARNED CIT(APPEALS). NONETHELES, THERE WAS NO QUESTION OF ASSESSEES FATHER SIGNING THE BALANCE S HEET AS HE HAD DIED. IT WAS SIGNED BY HIS WIDOW. COMPLET E LEDGER ACCOUNTS AND BALANCE SHEETS OF ASSESSEES FA THER WERE FURNISHED (PAGE 60-71). (B) (IV) THEREFORE, AGAIN ON THE BASIS OF THE AFORE MENTIONED FACTS, THE DIRECTIONS CONTINUED ARE NOT FACTUALLY C ORRECT. (B) (V) IN PARA 8 IT IS NOTED BY THE HON. TRIBUNAL AS UNDER:- SINCE THE ASSESSEE FAILED TO FURNISH EVIDENCE IN SUPPORT OF THE CLAIM THAT FD BELONGED TO HIS FATHER THAT MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 8 MONEY WAS DEPOSITED IN THE BANK ACCOUNT BY HIS FATH ER. THE EXPLANATION OF THE ASSESSEE CANNOT BE PRIMA FAC IE ACCEPTED. HOWEVER, CERTAIN FACTS ARE NOT ON RECORD. IT HAS TO BE ENQUIRED WHEN THE FDRS WERE PURCHASED, IN WHO SE NAMES WERE THE FD WHO HAD FILED THE FORMS IN THE BA NK FOR PURCHASE OF FD, IN WHOSE ACCOUNT THE INTEREST F ROM THE FD WERE BEING CREDITED, WHETHER THE FACTUM OF F D WAS NEVER INTIMATED TO ANY AUTHORITY EITHER ON MORT GAGE OR OTHERWISE IF SO BY WHOM. IT IS FOR THE ASSESSEE TO SUBMIT THESE DETAILS AND IF HE FAILS TO DO SO THE A O WOULD BE JUSTIFIED IN MAKING THE ADDITIONS. IT IS RESPECTFULLY SUBMITTED THAT THE DIRECTIONS A PPEAR TO CAUSE PREJUDICE TO THE ASSESSEE BECAUSE:- (A) ASSESSEE HAD ALREADY FURNISHED EVIDENCE IN SUPP ORT OF THE CLAIM THAT FD BELONGED TO HIS FATHER BUT THIS W AS NOT CONSIDERED BECAUSE OF RULE 46A. (B) THEREFORE, IT WOULD NOT BE CORRECT TO STATE THA T THAT THE EXPLANATION OF THE ASSESSEE WAS PRIMA FACIE NOT ACCEPTABLE. (C) PARTICULARS OF FDR PURCHASE WERE GIVEN. THEY WE RE IN THE NAMES OF LATE FATHER AND THIS IS ON RECORD (PAG ES 72-76). (D) THE HON. TRIBUNAL HAS INQUIRED AS TO WHO HAD FI LED THE FORM IN THE BANK FOR PURCHASE FOR FD. WHEN THE SOURCE HAS BEEN SHOWN IN THE BOOKS OF LATE FATHER, IT IS RESPECTFULLY SUBMITTED THAT THIS DIRE CTION WOULD NOT BE VERY RELEVANT PARTICULARLY WHEN NOBODY WOULD HAVE SUCH FORMS AT PRESENT AND EVEN THE BANKS WOULD NOT BE PRESERVING THEM AFTER SUCH A LONG GAP. (E)THE HON. TRIBUNAL HAS ALSO DIRECTED WHETHER THE FACTUM OF FD WAS EVER INTIMATED TO ANY AUTHORITY EI THER OR MORTGAGE OR OTHERWISE, IF SO, BY WHOM? IT IS NOBODYS CASE THAT THERE WAS MORTGAGE ON THE PROPERTY AND THERE IS NO REQUIREMENT ANYWHERE THAT THE FACTUM OF FD HAS TO BE INTIMATED TO ANY AUTHORITY. MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 9 (F)THE RESTORATION DONE WITH THE DIRECTION IT IS F OR THE ASSESSEE TO SUBMIT THESE DETAILS AND IF HE FAILS TO DO SO THE AO WOULD BE JUSTIFIED IN MAKING THE ADDITION IS BOUND TO HURT THE ASSESSEE BECAUSE WHEN THE SOURCE HAS BEEN EXPLAINED BY THE ASSESSEE SHOWN IN HIS BOOKS AND BALANCE SHEET AND RETURN AND CONFIRMED BY WIDOW OF LAT ABDUL RASHID ABDUL AZIZ SHAIKH WITH EVIDENCE, THAT SHOULD BE MATERIAL AND NOT THE DIREC TION WHICH EITHER CANNOT BE COMPLIED WITH OR WHICH HAVE ALREADY BEEN SATISFIED. (B) (VI) THEREFORE, IT IS RESPECTFULLY SUBMITTED TH AT EVEN IF THE MATTER IS RESTORED TO THE ASSESSING OFFICER, HE MAY BE DIRECTED TO EXAMINE WHETHER THE LATE FATHER OF THE ASSESSEE WHO WAS ALSO ASSESSEE HAD SUFFICIENT RESOURCES WITH HIM AND WHETHER THE FDS HAVE BEEN SHOWN IN HIS BOOKS. 5. WE HAVE FURTHER PERUSED THE DECISION OF THE TRIB UNAL ON THIS ISSUE AND THE SAME REDUCED HEREIN BELOW 8. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. SINCE THE ASSESSEE FAILED TO FURNISH EVIDEN CE IN SUPPORT OF THE CLAIM THAT FD BELONGED TO HIS FATHER, THAT M ONEY WAS DEPOSITED IN THE BANK ACCOUNT BY HIS FATHER. THE EX PLANATION OF THE ASSESSEE CANNOT BE PRIMA FACIE ACCEPTED. HOWEVE R, CERTAIN FACTS ARE NOT ON RECORD. IT HAS TO BE ENQUIRED WHEN THE FDRS WERE PURCHASED, IN WHOSE NAMES WERE THE FD, WHO FIL ED THE FORMS IN THE BANK FOR PURCHASE OF FD, IN WHOSE ACCO UNT THE INTEREST FROM THE FD WERE BEING CREDITED; WHETHER T HE FACTUM OF FD WAS EVER INTIMATED TO ANY AUTHORITY EITHER ON MO RTGAGE OR OTHERWISE IF SO BY WHOM. IT IS FOR THE ASSESSEE TO SUBMIT THESE DETAILS AND IF HE FAILS TO DO SO THE AO WOULD BE JU STIFIED IN MAKING THE ADDITION. WE ACCORDINGLY, RESTORE THE MA TTER TO THE AO TO GIVE AN OPPORTUNITY TO EXPLAIN THE ABOVE FACT S. ACCORDINGLY, THIS GROUND IS ALSO ALLOWED BUT FOR ST ATISTICAL PURPOSES. MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 10 6. REGARDING THE THIRD ISSUE I.E. ADDITION U/S. 68 OF THE ACT FOR AN AMOUNT OF RS.5,00,000/-, THE APPLICANT IN HIS MISC. APPLICATION SUBMITTED AS UNDER: (C ) AS REGARDS THE THIRD ISSUE, THERE IS NOT EVEN SETTING ASIDE BUT CONFIRMING THE ADDITION WITHOUT THE ASSESSEES REPRESENTATIVE HAVING BEEN GIVEN OPPORTUNITY TO EXP LAIN THE EVIDENCE FILED AND REJECTED BY THE LEARNED CIT(APPEALS) UNDER RULE 46A (1) WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FROM FURNISHING THIS EVIDENCE IN THE COURSE O F ASSESSMENT PROCEEDINGS ON ACCOUNT OF HIS FATHERS SERIOUS ILLNESS AND DEATH. AS MENTIONED EARLIER, AT THE HON. JUDICIAL MEMBER ANNOUNCED IN THE COURT THAT EVIDENCE IS ADMITTED AND RESTORED IT TO A. O. , THE A. R. HAD NO OCCASION TO EXPLAIN THE EVIDENCE. IT IS RESP ECTFULLY SUBMITTED THAT IN REJECTING ASSESSEES GROUND IN PA RA 10, THE HON. TRIBUNAL FAILED TO CONSIDER THE FACT THAT SINCE MATTER WAS RESTORED, ASSESSEES REPRESENTATIVE WAS PREVENTED FROM EXPLAINING EVIDENCE. 7. WE HAVE ALSO TAKEN NOTE OF THE ADJUDICATION OF T HE ISSUE BY THE TRIBUNAL WHICH IS REPRODUCED HEREIN BELOW FOR REFER ENCE:- 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIALS ON RECORD. IN OUR CONSIDERED VIEW THE RE IS NO CASE FOR INTERFERENCE SO FAR AS THIS GROUND IS CONCERNED . AT NO STAGE ASSESSEE HAS FURNISHED ANY EVIDENCE IN SUPPORT OF T HE CLAIM THAT HE HAS RECEIVED ANY GIFTS. IT WAS ALSO NOT EXP LAINED AS TO WHAT EVIDENCE THE ASSESSEE HAD IN RESPECT OF THESE GIFTS. NO REASONS ARE ADVANCED AS TO WHY EVIDENCE, IF ANY, WE RE NOT FURNISHED BEFORE THE AO. AS NEITHER THE IDENTITY OF THE CREDITOR, NOR HIS CREDIT WORTHINESS NOR THE GENUINENESS OF TH E TRANSACTIONS ARE EXPLAINED. IN RESPECT OF THE LETTE R DATED 18.2.2010 FURNISHED BY THE ASSESSEE BEFORE LD. CIT( A) A COPY WAS ALSO ENCLOSED BEFORE US. IT IS MENTIONED THAT A FORESAID TWO AMOUNTS HAD COME FROM HIS LATE FATHER WHO WAS AN AS SESSEE WITH PAN ADRPS 1715 M AND WITHDRAWALS WERE MADE FRO M HIS MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 11 BOOKS. HOWEVER, WE DO NOT FIND ANY NEXUS OF THESE W ITHDRAWALS FROM THE BANK WITH THE ALLEGED CLAIM OF GIFTS AND, THEREFORE, DO NOT CONSIDER IT NECESSARY TO RESTORE THIS MATTER FO R VERIFICATION. AS A RESULT, THIS GROUND OF ASSESSEE IS REJECTED. 8. LEARNED AR WITH THESE SUBMISSION PRAYED THAT ALL THE ISSUES MAY BE SET ASIDE BY GIVING APPROPRIATE DIRECTIONS SINCE THERE WAS APPARENT MISTAKE IN THE FINDING OF THE TRIBUNAL. LE ARNED DR STOUTLY OBJECTED AND ARGUED THAT ANY AMENDMENT IN THE ORDER OF THE TRIBUNAL WILL AMOUNT TO REVIEW OF THE ORDER WHICH IS NOT PER MISSIBLE AS PER THE PROVISIONS OF THE ACT. 9. WE HAVE HEARD THE RIVAL SUBMISSION AND CAREFULLY PERUSED THE MATERIAL ON RECORD BEFORE US. THE APPEAL IN ITA NO. 1895/AHD/2010 WAS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL RELAT ING TO THE ASSESSMENT YEAR 2007-08 WHEREIN THE APPEAL WAS DIR ECTED AGAINST THE ORDER PASSED BY THE LEARNED CIT(A) ON 26-02-201 0 DISMISSING ALL THE ABOVE THREE GROUNDS RAISED BY THE APPELLANT, VI Z.:- (1) UNEXPLAINED INVESTMENT OF RS.29,98,476/- BEING THE DEPOSIT IN JOINT ACCOUNT OF THE ASSESSEE. (2) UNEXPLAINED INVESTMENT IN FDR OF RS.3,95,902/- AND (3) ADDITION UNDER SECTION 68 AMOUNTING TO RS.5 LAC S. 9.1 ON A CLOSE EXAMINATION OF THE FINDINGS OF THE TRIBUNAL IN ITS ORDER CITED SUPRA, IT IS APPARENT THAT THE BENCH H AD DISPOSED OF ALL THESE THREE GROUNDS RAISED IN THE APPEAL CONSIDERI NG ALL THE FACTS AND ARGUMENTS ADVANCED BY EITHER PARTY AND THEREBY SET- ASIDE THE ORDER OF THE LEARNED CIT(A) WITH REGARD TO GROUND NO.1 AN D GROUND NO.2 MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 12 WITH PROPER DIRECTION TO THE LEARNED AO TO DECIDE T HE ISSUES ON VERIFICATION OF THE RELEVANT MATERIALS AFTER GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AND DISMISSED THE G ROUND NO.3 OF THE ASSESSEES APPEAL BY CONFIRMING THE ORDER OF THE LE ARNED CIT(A) ON THAT ISSUE. THE APPLICANT IN HIS SUBMISSION MADE I N THE MISC. APPLICATION COULD NOT POINT OUT ANY SPECIFIC MISTAK E APPARENT IN THE ORDER OF THE TRIBUNAL. FURTHER, FROM THE VARIOUS DE CISIONS OF THE HONBLE APEX COURT AND HIGH COURTS IT IS CLEAR THAT THE TRIBUNAL DOES NOT HAVE ANY POWER U/S 254(2) TO REVIEW ITS ORDER B UT ONLY TO AMEND IT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM TH E RECORD. AMENDMENT OF THE ORDER WOULD MEAN OBLITERATION OF T HE ORDER ORIGINALLY PASSED AND SUBSTITUTED BY A NEW ORDER. T HE MISTAKE IN THE ORDER HAS TO BE APPARENT AND VISIBLE AND ONLY SUCH MISTAKE CAN BE RECTIFIED. THIS IS NOT A CASE WHERE THE TRIBUNAL HA D OMITTED TO DEAL WITH ANY IMPORTANT CONTENTION AFFECTING THE MAINTAI NABILITY/MERITS OF THE APPEAL. ALL THE ARGUMENTS WHICH ARE IMPORTANT A FFECTING THE ISSUES IN THE APPEAL WERE CONSIDERED BY THE TRIBUNAL. KEEP ING IN VIEW OF THE LIMITED SCOPE IN RECALLING THE ORDER OF THE TRIBUNA L, WE ARE OF THE CONSIDERED VIEW THAT THIS MISC. APPLICATION FILED B Y THE ASSESSEE IS NOT MAINTAINABLE. WE DRAW STRENGTH FROM THE DECISIO N OF THE HONBLE APEX COURT IN THE CASE OF CIT VS KARAM CHAND THAPAR AND BR. P. LTD., 176 ITR 535 IN WHICH IT WAS HELD AS UNDER: APPELLATE TRIBUNAL - DUTY TO CONSIDER CUMULATIVE EFFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS - NO NEED TO STATE SO IN APPELLATE ORDER SPECIFICALLY - INCOME TAX ACT, 1961, SEC. 254 FURTHER IT WAS HELD AS UNDER: 'IT IS EQUALLY WELL SETTLED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 13 MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPE ARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. I F THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INT O ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCL USIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGEMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSI DERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF T HE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. SIMILARLY THE BOMBAY HIGH COURT IN THE CASE OF CIT -VS- RAMESH ELECTRIC AND TRADING CO. (203 ITR 497) .............IT IS AN ACCEPTED POSITION THAT THE AP PELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER T HE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSE S IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD........ THE POWER OF RECTIFICATION UNDER S ECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED S AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM T HE RECORD AND NOT A MISTAKE WHICH REQUIRED TO BE ESTABLISHED BY A RGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINION. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENTS........................ ' 10. IN THE RESULT, THE MISC. APPLICATION FILED BY T HE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23-11-2012. SD/- SD/- (D. K. TYAGI) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER MA NO.61AHD/2011 (IN ITA NO.1895/AHD/2010 - AY: 2007-08) ABDUL AZIZ ABDUL RASHID SHAIKH VS ITO, W-5(1), SURA T 14 LAKSHMIKANT LAKSHMIKANT LAKSHMIKANT LAKSHMIKANTA AA A DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 02-11-12/07-11-12 (DIRECT ON COMPUTER) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: OTHER M EMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: