Moosa Abu Khaled, Hyderabad V. ACIT, Hyderabad

MA 7/HYD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7794 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-03-2011
• Assessment Year: misc
• Appeal Filed On: 05-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: P MURALI MOHANA RAO
• Keywords: Rectification of order; Reasonable cause
• Section: 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO.7/HYD/2010 ARISING OUT OF IT(SS)A NO. 104/HYD/2005 (BLOCK PERIOD FROM A.YS. 1997-98 TO 2002-03 AND FRO M 1.4.2002 TO 25.7.2002) M/S. MOOSA ABU KHALED, HYDERABAD. (PAN AGTPK 3369 C) VS. A CIT, CENTRAL CIR-I, HYDERABAD. (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI.P. MURALI MOHANA RAO RESPONDENT BY: SRI B.V. PRASAD REDDY DATE OF HEARING: 20.01.2012 DATE OF PRONOUNCEMENT: 18.02.2012 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING THE TRIBUNAL TO RECALL/MODIFY ITS ORDER PASSED IN IT(SS )A NO.104/HYD/2005 DATED 30 TH JANUARY, 2009 PERTAINING TO THE BLOCK PERIOD FROM ASSESSMENT YEARS 1997-98 TO 2002- 03 AND FROM 1-4-2002 TO 25-7-2002. 2. THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT COMMISSION AND RECEIPT FROM M/S PRAG ATI GREEN MEADOWS & RESORTS PRIVATE LIMITED (PGMRPL) OF RS. 21,46,593/- WERE DULY RECORDED IN THE BOOKS OF ACCO UNT AND THESE RECEIPTS WERE ALREADY SHOWN IN THE PROFIT & L OSS A/C OF THE RELEVANT PREVIOUS YEARS. IN RESPECT OF OPENING CASH BALANCE AS ON 1-4-1997, IT IS SUBMITTED THAT THE AS SESSEE WAS WORKING IN SAUDI ARABIA FROM 1978 TO 1991 AND FROM HIS SAVINGS HE ADVANCED LOANS TO FRIENDS AND RELATIVES AND M.A. NO. 7/HYD/2010 M/S. MOOSA ABU KHALED ================== 2 SUBSEQUENTLY RECEIVED BACK THE SAME WHICH WERE UTIL IZED FOR INVESTMENT IN THE BUSINESS CONCERNS AND AS ADVANCE FOR PROPERTIES. THEREFORE, THE OPENING BALANCE OF RS.1 0,81,615/- WHICH WAS AVAILABLE IN THE FORM OF CASH AND JEWELLE RY AND ADVANCES AND BANK BALANCE MAY NOT BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. IT IS FURTHER SUBMITTED THAT SINCE THE COMMISSION AND OTHER RECEIPTS WERE A LREADY RECORDED IN THE BOOKS OF ACCOUNT BY TREATING THE S AME ON MONEY OF RS. 1,60,000/- AS UNDISCLOSED INCOME IS NO T CORRECT. IT IS FURTHER SUBMITTED THAT THE ASSESSEE WAS A FRE QUENT VISITOR OF SAUDI ARABIA AND WAS IN THE HABIT OF COL LECTING FOREIGN CURRENCY, AND FOREIGN CURRENCY FOUND AMOUNT ING TO RS. 8,234/- BEING SMALL AND REASONABLE, THE SAME CO ULD NOT BE TREATED AS REPRESENTING UNDISCLOSED INCOME OF TH E ASSESSEE. HE FURTHER SUBMITTED THAT THE ORDER OF TH E ASSESSING OFFICER IS EX PARTE ORDER PASSED UNDER SECTION 144 OF THE ACT. THE CIT (A) DISMISSED THE APPEAL INSTEAD OF SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER AS HE H AS NO POWER WITH EFFECT FROM 1-6-2001 TO SET ASIDE THE ORDER OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. THOUGH T HE ASSESSEE ARGUED THIS POINT BEFORE THE TRIBUNAL AT THE TIME O F HEARING, THE TRIBUNAL NOT AT ALL CONSIDERED THIS GROUND AND DISMISSED THE APPEAL OF THE ASSESSEE THOUGH THE ADDITION IS N OT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE WHILE STRONGLY SUPPORTING THE ORDER OF THE CIT (A) OPPOSED THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE AND NOT AGREED WITH THE RECALLING/MODIFYIN G THE TRIBUNAL ORDER IN THE INSTANT CASE. M.A. NO. 7/HYD/2010 M/S. MOOSA ABU KHALED ================== 3 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 144 OF THE ACT. THE RE IS ALSO MERIT IN THE ARGUMENT OF THE LEARNED COUNSEL FOR TH E ASSESSEE THAT THE CIT (A) HAS NO POWER WITH EFFECT FROM 1-6- 2001 UNDER SECTION 251 OF THE ACT TO SET ASIDE THE MATTER TO T HE FILE OF THE ASSESSING OFFICER. THE CIT (A) CAN CONFIRM, REDUCE OR ANNUL THE ASSESSMENT ORDER ONLY. THE TRIBUNAL HAS POWER TO SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES TO THE FI LE OF THE CIT(A) OR THE ASSESSING OFFICER OR DECIDE THE ISSUE ON MERIT. IN THIS CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDE R OF THE TRIBUNAL. NOW, THE AR OF THE ASSESSEE WANTED THE T RIBUNAL TO REVIEW ITS OWN ORDER, WHICH POWER THE TRIBUNAL DOES NOT HAVE. THERE MAY BE ERROR IN THE ORDER OF THE TRIBUNAL, WH ICH IS NOT POSSIBLE TO CORRECT THE SAME UNDER THE PROVISIONS O F SECTION 254(2) OF THE ACT. 5. THE TRIBUNAL IN THIS CASE CONSIDERED THE ENTIRE ARGUMENTS OF THE ASSESSEE'S COUNSEL AND PASSED THE ORDER. NOW IN THE GARB OF RECTIFICATION, THE ASSESSEE CANN OT REOPEN AND REARGUE THE WHOLE MATTER. IN THE PRESENT CASE, THE TRIBUNAL CONSIDERED THE MATERIAL ON RECORD AND DELI VERED THE ORDER. THE ASSESSEE HAD NOT RAISED THE GROUND RELA TING TO PASSING OF ORDER EX-PARTE BY THE ASSESSING OFFICER. NOW, THE ASSESSEE CANNOT TAKE UP THAT ISSUE BEFORE US IN THE PROCEEDINGS U/S. 254(2) OF THE ACT. THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254(2) IS VERY LIMITED. IT IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. BUT TO REVIEW OR RECALL THE ORDER IS NOT PERMISSIBLE U/S. 254(2) IF NECESSITATING REHEARING AND RE-ADJUDICATION OF ENTI RE SUBJECT- MATTER OF APPEAL AND THE DISPUTE AFTER BEING PUT FO R REHEARING NO LONGER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE M.A. NO. 7/HYD/2010 M/S. MOOSA ABU KHALED ================== 4 RECTIFIED. POWER TO RECALL AN ORDER IS PROVIDED UN DER RULE 24 AND RULE 25 OF ITAT RULES, 1963; THAT TOO ONLY IN C ASES WHERE APPELLANT/RESPONDENT SHOWS REASONABLE CAUSE FOR BEI NG ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND D ECIDED EX-PARTE. IN OUR OPINION, IN THE PRESENT CASE, THE RE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIB UNAL. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON 17 TH FEBRUARY, 2012. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 17 TH FEBRUARY, 2012. COPY FORWARDED TO: 1. S H RI MOOSA ABU KHALED, 1 0 5 - A, 1 ST FLOOR, 5 - 9 - 139, LENAINE ESTATES, HYDERABAD. 2. THE ACIT, CENTRAL CIRCLE - 1, HYDERABAD. 3. THE CIT(A) - 1, HYDERABAD. 4. THE CIT (CENTRAL), HYDERABAD. 5. THE DR, B - BENCH, ITAT, HYDERABAD TPRAO