SH. JATINDER KUMAR S/O SH. INDER MAL, TALWANDI SABO V. INCOME TAX OFFICER WARD-1(2), BATHINDA

MA 8/ASR/2023

AI Insights

The case involves a Miscellaneous Application filed by Sh. Jatinder Kumar against the order of the ITAT Amritsar Bench, which pertained to the assessment year 2010-11. The application contested the turnover determination made in the original ITAT order, claiming that the assessee's submissions and documents were overlooked. The tribunal reviewed the documents and previous orders, including the CIT(A)'s remand proceedings, and found that the turnover was correctly determined based on the available records. The tribunal relied on the precedent set by the Supreme Court in CIT(IT-4) Mumbai vs Reliance Telecom Ltd., emphasizing that the powers under section 254(2) of the Income Tax Act are limited to correcting mistakes apparent from the record.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115191 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-04-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 26-01-2023
• Other Referred Cases: CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER ANDSH. ANIKESH BANERJEE, JUDICIAL MEMBER M.A. No. 8/Asr/2023 (In I.T.A.No. 215/Asr/2019) A.Y. 2010-11 Sh. Jatinder Kumar S/o Sh. Inder Mal, Talwandi Sabo [PAN: AYAPK9224A] (Appellant) Vs. ITO-Ward 1(2), Bathinda. (Respondent) Appellant by Sh. J. K. Gupta, Adv. Respondent by Sh. Rajiv Wadhera,Sr. DR Date of Hearing 10.04.2023 Date of Pronouncement 18.05.2023 ORDER Per Anikesh Banerjee, JM: The instant Miscellaneous Application (in brevity the MA)of the assessee was filed against the order of ITAT Amritsar Bench bearing ITA No.215/Asr/2019,order pronounced on 28.07.2022 for A.Y. 2010-11. M.A. No. 8/Asr/2023 (In I.T.A.No. 215/Asr/2019) 2 2. Brief fact of the case is that the M.A. was filed against the order of the ITAT, Amritsar Bench in the grievance that the turnover was not properly determined against the submission of the assessee. The document was filed with the appeal application was duly overlooked by the bench. Also, the bench has not taken cognizance of the document in the order. Accordingly, the turnover was wrongly determined in the order. Mistake on part of bench is apparent from the record. Being aggrieved assessee filed an M.A. against the order of ITAT Amritsar Bench. 3. The ld. AR placed that in the main order para no. 7, the turnover is not determined as per the submission of the assessee. The para 7 of the order of ITAT, Amritsar Bench is reproduced as below: “7. In case of adjudication in factual material, it is observed that assessee deposited a cash amounting to Rs.59,33,500/-. On the other hand, cash sale was amounting to Rs.47,38,985/- which was accepted by the ld. AO. The difference amount Rs.10,60,000/- was added back as unexplained cash deposit in M.A. No. 8/Asr/2023 (In I.T.A.No. 215/Asr/2019) 3 bank account. Assessee has enclosed balance sheet and Trading and Profit & Loss account for F.Y. 2009-10 APB page no. 16 to 18. From the Trading and Profit & Loss account, it is observed that total sale is disclosed amount to Rs.39,05,400/- and as per the sundry debtors amount to Rs.6,34,652/-. The assessee had audited his books of account u/s. 44AB.” 4. The ld. DR fully relied on the order of the ITAT Amritsar Bench and the order of revenue. 5. We heard the rival submission and relied on the documents available in the record. The assessee submitted the documents with the appeal set in following manners: Page No. Items 15 Annexure Part-A 16 Balance sheet 17 Trading Profit & Loss A/c 18 Details of Prop. Capital A/c 21-25 Cash entries in part from books of account 26-33 Bank A/c, HDFC, OBC, SBOI M.A. No. 8/Asr/2023 (In I.T.A.No. 215/Asr/2019) 4 5.1 Only one page of balance sheet is annexed of M/s Garg Commission Agent and turnover is mentioned Rs.39,05,400/-. During hearing the ld. DR mentioned the specific paragraph of the appeal order of the CIT(A) in para 4.4 which is reproduced as below: “4.4 I have careful consideration to the totality of facts and circumstances of the case and find that originally the basis of addition made by the AO in the assessment order was that total cash deposited in the bank accounts maintained by the appellant during the year under consideration was Rs. 59,33,500/- and the total cash sales for the corresponding period was Rs. 47,38,985/-. There was a gap of Rs. 10,60,000/- which has remained unexplained and the addition was made. In the remand proceedings, the appellant submitted another cash book with an opening balance of Rs. 2,70,470/- where as in the income tax return for the immediately preceding year assessment year 2009-10 the closing cash balance available with the appellant was merely Rs. 22,850/-. In the report, the Assessing Officer has pointed out discrepancies on various occasions regarding cash balances and deposits. The cashbook produced before the Assessing Officer was unreliable and M.A. No. 8/Asr/2023 (In I.T.A.No. 215/Asr/2019) 5 therefore the findings recorded in the assessment order that out of the total cash deposit of Rs. 59,33,500/- at the maximum explanation equal to total cash sale amounting to Rs. 47,38,985/- can be considered to be explained. The Assessing Officer was justified in making addition as above; therefore the grounds of appeal are dismissed.” 6. The revenue has determined the turnover Rs.47,38,985/-. The determination of turnover was in dispute in the submission of the assessee and also in the revenue. Accordingly, the matter was remand back to the ld. CIT(A) for further adjudication. There is no such any omission or mistake apparent from the record in determination of the appeal of the assessee. 7. We respectfully relied on the order of Apex Court, CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC). The observation is extracted as below:- “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which M.A. No. 8/Asr/2023 (In I.T.A.No. 215/Asr/2019) 6 the Assessee withdrew after the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case.” In our considered view the order was passed by a speaking order. The mentioning of turnover of assessee on basis of the documents on record as well as considering the order of revenue. There is pure confusion on determination of turn over so, the M.A. No. 8/Asr/2023 (In I.T.A.No. 215/Asr/2019) 7 matter was remanded back. There is no mistake apparent from the record. The MA is non-maintainable. 8. In the result, the Miscellaneous Application of the assessee bearing M.A. No. 8/Asr/2023 is dismissed. Order pronounced in the open court on 18.05.2023 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order