Shri Kailash chand Agrawal, Indore V. The ACIT, 3(1), Indore

MA 89/IND/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9405 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 15-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DARSHAN SINGH
• Assessee Lawyers: KAMLESH JAIN
• Keywords: Unexplained investment

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER 1. M.A.NO.88/IND/2012 ARISING OUT OF IT(SS)A NO.63/IND/2006 BLOCK PERIOD 1.4.96 TO 13.11.2002 2. M.A.NO.89/IND/2012 ARISING OUT OF IT(SS)A NO.94/IND/2006 BLOCK PERIOD 1.4.96 TO 13.11.2002 1. SHRI NIRANJAN AGRAWAL INDORE PAN AFRFA-1669R 2. SHRI KAILASH CHAND AGRAWAL INDORE PAN ABDPA 8656Q :: APPLICANTS VS ASSTT. COMMISSIONER OF INCOME TAX 3(1), INDORE :: RESPONDENT APPLICANT BY SHRI KAMLESH JAIN RESPONDENT BY SHRI DARSHAN SINGH DATE OF HEARING 12.10.2012 DATE OF PRONOUNCEMENT 31.10.2012 2 O R D E R PER JOGINDER SINGH THESE MISCELLANEOUS APPLICATIONS ARISE OUT OF THE O RDER OF THE TRIBUNAL DATED 29.11.2011. 2. THROUGH THESE PETITIONS, IT WAS SUBMITTED THAT T HE ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKES APPARENT FROM RECORD . IT WAS, ACCORDINGLY, SUBMITTED THAT THE SAME SHOULD BE RECT IFIED. 3. IN THE CASE OF KAILASHCHAND AGRAWAL, IT WAS SUBM ITTED THAT AN ADDITION OF RS. 29.33 LACS WAS MADE IN RESPECT OF L AND ADMEASURING 4084 SQ.FT. AT LASURIA MORI AND LAND ADMEASURING 1 5,667 SQ.FT, AT KHASRA NO. 336/4 AT PALDA TREATING THE SAME AS UNEX PLAINED INVESTMENT. AFTER CONSIDERING THE MATERIAL PLACED ON RECORD, THE CIT(A) DELETED THE ADDITION OF RS. 24,33,253/- AND RETAINED THE ADDITION OF RS. 5 LACS AGAINST WHICH THE ASSESSEE A ND THE REVENUE WERE IN APPEAL BEFORE THE TRIBUNAL. 4. IT WAS CONTENDED THAT THE TRIBUNAL HAS NOT CONSI DERED THE DOCUMENTS FILED ON RECORD WHICH LEAD TO CONFIRMING ADDITION OF RS. 5 LACS BY THE TRIBUNAL. ADDITION CONFIRMED WITHOUT CONSIDERING THE DOCUMENTS WAS A MISTAKE APPARENT FROM RECORD. 3 5. WE HAD CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE MATERIAL PLACED ON RECORD AND FOUND THAT AFTER CONS IDERING THE FINDINGS RECORDED BY THE CIT (A) WITH REFERENCE TO THE DOCUMENTS FILED BEFORE THE LOWER AUTHORITIES, THE TRIBUNAL HA S UPHELD THE DELETION OF ADDITION OF RS. 24,33,253/- AND ADDITIO N OF RS. 5 LACS CONFIRMED BY THE CIT(A). IT IS WRONG TO ALLEGE THA T THE TRIBUNAL HAS NOT CONSIDERED THE DOCUMENTS PLACED ON RECORD. THE RE IS NO MISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. THERE IS NO DISPUTE TO WELL SETTLED LEGA L PROPOSITION THAT ONLY APPARENT MISTAKE CAN BE RECTIFIED U/S 254(2) A ND NOT A DEBATABLE ISSUE. HOWEVER, ACCEPTING THE ASSESSEES CONTENTION AMOUNTS TO REVIEW OF THE ORDER WHICH IS NOT PERMISS IBLE U/S 254(23). ACCORDINGLY, THIS GROUND IS DISMISSED. 6. IT WAS ALSO SUBMITTED THAT THE TRIBUNAL HAS ALSO CONFIRMED THE ADDITION OF RS.16.97 LACS ON ACCOUNT OF UNACCOUNTED PURCHASE OF MATERIAL WHICH IS A MISTAKE APPARENT FROM RECORD AN D THE SAME SHOULD BE RECTIFIED BY DELETING THE ADDITION SO MAD E. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIN D THAT A CLEAR FINDING HAS BEEN RECORDED BY THE AO, CIT(A) AND THE TRIBUNAL TO THE EFFECT THAT THE SEIZED PAPERS INDICATE PURCHASES MA DE BY THE ASSESSEE WHICH WERE NOT ACCOUNTED FOR IN THE REGULA R BOOKS OF 4 ACCOUNTS. THUS, THE ADDITION WAS CONFIRMED IN RESPE CT OF UNACCOUNTED PURCHASES. THE CONTENTION OF THE LEARN ED COUNSEL FOR THE ASSESSEE THAT IT WAS A SALE IS CONTRARY TO THE FINDINGS RECORDED NOT ONLY BY THE AO AND CIT(A) BUT ALSO BY THE TRIBU NAL. THE TRIBUNAL HAS DISCUSSED IN DETAIL THE ISSUE IN PARAS 65 AND 66 OF ITS ORDER AT PAGES 95 TO 97. ACCORDINGLY, WE DO NOT FI ND ANY MISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE T RIBUNAL FOR TREATING THE TRANSACTIONS FOUND RECORDED ON SEIZED PAPER AS TRANSACTION OF PURCHASES. THUS, THERE IS NO QUESTIO N OF DIRECTING THE AO TO CONFIRM ADDITION ONLY TO THE EXTENT OF 2.5% G P EARNED ON THESE TRANSACTIONS. 8. IN THE CASE OF NIRANJAN AGRAWAL IT WAS ALLEGED T HAT THE ADDITION OF RS. 5 LACS WAS WRONGLY RETAINED BY THE TRIBUNAL IN RESPECT OF LAND ADMEASURING 15,667 SQ.FT. INSOFAR AS THE LAND WAS PURCHASED PRIOR TO THE BLOCK PERIOD. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIN D THAT THE LEARNED AO HAS MADE AN ADDITION OF RS. 28,98,395/- IN RESPECT OF LAND ADMEASURING 15667 SQ. FT. IN THE BLOCK ASSESSM ENT ORDER TREATING IT AS UNEXPLAINED INVESTMENT (TOTAL ADDITI ON IN RESPECT OF ALL LANDS BEING RS. 60,16,081/-). THE RELEVANT DISCUSS ION IS FOUND IN PARA 4 AT PAGE4 OF THE AOS ORDER. 5 10. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND F IND THAT THE SALE DEED IN RESPECT OF THE LAND IN KHASRA NO. 336/ 1 WHEREAS THE LAND IN QUESTION IN RESPECT OF WHICH THE ADDITION W AS MADE, WAS THE LAND IN KHASRA NO. 336/4 I.E. TWO LANDS WERE DIFFER ENT LANDS. ACCORDINGLY, UNEXPLAINED INVESTMENT WAS CONFIRMED A ND THE RELEVANT DISCUSSION FINDS PLACE AT PAGES 5 AND 6 OF THE ORDER OF THE CIT(A). AGAINST THE ABOVE ORDER OF THE CIT(A), BOT H THE REVENUE AND THE ASSESSEE WERE IN APPEAL BEFORE THE TRIBUNAL. 11. AFTER CONSIDERING THE MATERIAL PLACED ON RECORD WITH REFERENCE TO THE FINDINGS RECORDED BY THE CIT(A), THE TRIBUNA L REACHED THE CONCLUSION THAT RELIEF OF RS. 23,98,395/- GIVEN BY THE CIT(A) WAS JUSTIFIED AND THE ADDITION OF RS. 5 LACS CONFIRMED BY THE CIT(A) WAS UPHELD AFTER CONSIDERING VARIOUS DOCUMENTS PLACED ON RECORD. THUS, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBU NAL WHICH COULD BE RECTIFIED U/S 254(2) OF THE ACT. 12. THE ASSESSEE HAS ALSO SUBMITTED THAT THE TRIBUN AL WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 4,50,00 0/- TOWARDS INVESTMENT IN LAND ADMEASURING 13,457 SQ.FT. FROM R ECORD WE FIND THAT AFTER CONSIDERING THE ENTIRE MATERIAL ON RECOR D, THE CIT(A), AFTER RECORDING THE DETAILED FINDINGS, GAVE RELIEF OF RS .20,39,544/- AND RETAINED THE ADDITION OF RS. 4,50,000/-. THE FINDI NGS RECORDED BY 6 THE CIT(A) WERE AS PER THE MATERIAL ON RECORD, THE TRIBUNAL CONFIRMED THE SAME WHEREIN THE ADDITION OF RS. 4,50 ,000/- CONFIRMED BY THE CIT(A) WAS UPHELD. THERE IS NO MIS TAKE IN THE ORDER OF THE TRIBUNAL MUCH LESS AN APPARENT MISTAKE , ACCORDINGLY, NO INTERFERENCE IS REQUIRED. 13. FURTHERMORE, THE DETAILED ARGUMENTS PLACED BY T HE LEARNED COUNSEL FOR THE ASSESSEE IN THE MISCELLANEOUS PETIT ION, BEFORE THE TRIBUNAL AS WELL AS THE WRITTEN SUBMISSIONS FILED B Y HIM CLEARLY INDICATE THAT LONG DELIBERATIONS ARE REQUIRED FOR R ECONSIDERING THE ADDITIONS DELETED AND UPHELD. HOWEVER, ONLY AFTER C ONSIDERING THE DOCUMENTS PLACED ON RECORD THE TRIBUNAL HAD REACHED TO CERTAIN CONCLUSIONS WHICH COULD NOT BE SAID TO BE MISTAKE M UCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. ACC EPTING THE CONTENTION OF THE ASSESSEE AMOUNTS TO REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE WITHIN THE MEANING OF SECTION 254(2 ) OF THE ACT. 14. EVEN OTHERWISE, THE TRIBUNAL HAS LIMITED POWERS TO REVIEW ITS ORDER. THE POWERS OF VIEW MUST BE CONFERRED BY THE STATUTE. REVIEW OF AN ORDER MEANS RE-EXAMINATION OR TO GIVE A SECON D VIEW OF THE MATTER FOR THE PURPOSES OF ALTERATION OR REVERSAL O F THE VIEW ALREADY TAKEN AFTER CHANGING THE EARLIER OPINION OR VIEW. THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER S O FAR AS THE APPEAL 7 IS CONCERNED. ANY ORDER PASSED U/S 254(2) EITHER AL LOWING AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH TH E ORIGINAL ORDER PASSED. THE ORDER OF THE TRIBUNAL IS THE EFF ECTIVE ORDER FOR ALL PRACTICABLE PURPOSES I.E. THE FINAL ORDER OF THE AP PEAL. RECALLING OF ORDER IS NOT PERMISSIBLE U/S 254(2) AS RECALLING AU TOMATICALLY NECESSITATES REHEARING AND RE-ADJUDICATION OF THE A PPEAL. OUR VIEW IS SUPPORTED BY THE DECISIONS IN CIT VS. B.P. AGRAW AL (90 TAXMAN 283) (CAL), KARAN & CO. (253 ITR 131) (DEL), NIRANJ AN & CO. LTD. VS. ITAT (122 ITR 519) (CAL), CIT VS. ITAT (196 ITR 640 ) (ORI) AND CIT VS. ITAT (155 TAXMANN 378) (DEL). IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEMENTS, NO CASE IS MADE OUT BY THE ASSESSEE THROUGH THESE MISCELLANEOUS APPLICATIONS, THEREFORE , SAME ARE DISMISSED. 15. IN MA NO. 88/IND/2012, THE LEARNED COUNSEL FOR THE ASSESSEE HAS POINTED OUT THAT GROUND NOS. 5 AND 6 RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL WERE NOT DISPOSED OF BY THE TRIB UNAL WHICH AMOUNTS TO MISTAKE APPARENT FROM RECORD. 16. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FI ND THAT IN THE MEMO OF APPEAL, GROUND NOS. 5 AND 6 RAISED BY THE A SSESSEE READ AS UNDER :- 8 GROUND NO. 5 FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A)-1 HAS FAILED TO APPRECIATE THE STATE OF AFFA IRS OF AVAILABILITY OF FUNDS AND ERRED IN CONFIRMING THE ADDITIONS MADE BY THE A.O. AS PER BANK STATEMENTS AS UNDER :- RS. 11,000/- DEPOSITED ON 20.02.2001 RS. 11,500/- DEPOSITED ON 18.01.2002 RS. 18,000/- DEPOSITED IN VYAPARIK AUODHIK SAH. BA NK RS. 2,50,000/- IN UCO BANK GROUND NO. 6 FOR THAT THE CIT(A) HAS ERRED IN NOT CONSIDERING T HE ADDITION OF RS. 7,20,197/- MADE TOWARDS ALLEGED UNEXPLAINED INV ESTMENTS IN CONSTRUCTION OF GODOWNS AND NOT DECIDING THE ISSUE. 17. IT APPEARS THAT INADVERTENTLY THESE GROUNDS WER E NOT DISPOSED OF WHILE PASSING THE ORDER DATED 29.11.2011. NOT D ISPOSING OF THESE GROUNDS RAISED IN THE APPEAL MEMO AMOUNTS TO A MIST AKE APPARENT FROM RECORD, THEREFORE, TO THE LIMITED EXTENT OF DE CIDING GROUND NOS. 5 AND 6, OUR ORDER IN IT(SS) NO. 63/IND/2006 IS HER EBY RECALLED. 18. IN THE RESULT, BOTH THE APPLICATIONS OF T HE AS SESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31 ST OCTOBER, 2012. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 31 ST OCTOBER, 2012 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR DN/- 9