Smt. Laxmi Agarwal, Kanpur V. Asstt. Commissioner of Income Tax-III, Kanpur

MA 9/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3313 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 03-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Assessee Lawyers: G P SINHA ITP

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.09/LKW/2015 [ARISING OUT OF ITA NO.564/LKW/2013] ASSESSMENT YEAR: 2006-07 SMT. LAXMI AGARWAL PROP. M/S CHANDRA KISHORE ASHOK KUMAR, 48/226, GENERAL GANJ, KANPUR V. ACIT-III KANPUR PAN:AFKPA2144N (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. G. P. SINHA, ITP RESPONDENT BY: SHRI. PUNIT KUMAR, D.R. DATE OF HEARING: 01 05 2015 DATE OF PRONOUNCEMENT: 05 06 2015 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 21.11.2014 IN I.T.A. NO. 564/LKW/2013 WITH THE SUBMISSION THAT THE TRIBUNAL HAS NOT APPRECIATED THE FACTS AND THE EVIDENCE AVAILABLE ON RECORD PROPERLY AND HAS CONCLUDED THAT THE ADDITION CAN BE MADE ON THE BASIS OF SURRENDER STATEMENT. THEREFORE, THERE IS AN ERROR APPARENT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION. 2. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IT HAS BEEN EMPHATICALLY ARGUED ON BEHALF OF THE ASSESSEE THAT SMT. LAXMI AGARWAL WAS NOT PRESENT DURING THE COURSE OF SEARCH PROCEEDINGS AND THERE ARE CONCLUSIVE FINDINGS IN THIS REGARD BY THE HON'BLE HIGH COURT, BUT THE TRIBUNAL HAS NOT TAKEN INTO ACCOUNT THESE FACTS AND HAS ACCEPTED THE CONTENTIONS OF THE REVENUE THAT SMT. LAXMI AGARWAL HAS MADE A VOLUNTARY :- 2 -: SURRENDER OF RS.35 LAKHS. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED RELIANCE UPON THE LETTER WRITTEN TO THE ASSESSING OFFICER AND THE CONTENTIONS RAISED THEREIN. RELIANCE WAS ALSO PLACED UPON THE STATEMENT OF THE ASSESSEE AS WELL AS THE CONTENTS OF THE WRIT PETITION FILED BEFORE THE HON'BLE ALLAHABAD HIGH COURT. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT SINCE THE TRIBUNAL HAS GIVEN A FINDING ON INCORRECT FACTS, THE ORDER OF THE TRIBUNAL DESERVES TO BE RECALLED. 3. THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT WHILE ADJUDICATING THE ISSUE, THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL THE RELEVANT FACTS AND THE STATEMENTS OF THE ASSESSEE AND SHRI. SURESH CHANDRA AGARWAL, THE MANAGER OF M/S DEVI & COMPANY. THE TRIBUNAL HAS ALSO EXTRACTED THE STATEMENT OF THE ASSESSEE RECORDED BY THE SURVEY TEAM. THE TRIBUNAL HAS TAKEN NOTE OF THE FACT THAT THE ASSESSEE HAS NOT ONLY SURRENDERED RS.35 LAKHS ON ACCOUNT OF UNDISCLOSED STOCK IN ITS HAND BUT HAS ALSO ISSUED A CHEQUE OF THE TAX LIABILITY WHICH WAS LATER ON ENCASHED. THEREFORE, THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL THE RELEVANT FACTS WHILE ADJUDICATING THE IMPUGNED ISSUE AND NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL HAS BEEN POINTED OUT BY THE ASSESSEE. WHILE ADJUDICATING THE ISSUE, THE TRIBUNAL HAS TAKEN NOTE OF THE ARGUMENTS OF THE DEPARTMENT THAT HAD THERE BEEN ANY TRUTH IN THE ALLEGATION OF THE ASSESSEE, THE ASSESSEE COULD HAVE STOPPED THE PAYMENT FROM THE BANKERS, BUT NOTHING WAS DONE AND THE CHEQUE WAS DULY ENCASHED. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL VIS--VIS THE MISCELLANEOUS APPLICATION, WE ARE OF THE VIEW THAT THE ISSUE BEFORE THE TRIBUNAL WAS WITH REGARD TO THE SUSTAINABILITY OF THE ADDITION ON THE BASIS OF THE SURRENDER STATEMENT. THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL THE RELEVANT FACTS PLACED BEFORE IT. THE STATEMENT RECORDED BY THE SURVEY TEAM WAS ALSO REPRODUCED IN THE ORDER OF THE TRIBUNAL. SINCE THE TRIBUNAL HAS :- 3 -: TAKEN INTO ACCOUNT ALL THE RELEVANT FACTS WHILE ADJUDICATING THE ISSUE, THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. 5. MOREOVER, THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT IS VERY LIMITED. ONLY ERROR APPARENT IN THE ORDER OF THE TRIBUNAL CAN BE RECTIFIED AND UNDER THE GARB OF RECTIFICATION, THE ORDER OF THE TRIBUNAL CANNOT BE REVIEWED. WHILE ADJUDICATING THE ISSUE, THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL THE RELEVANT FACTS RELATING TO THE SURRENDER, SURVEY OPERATION AND POST-OPERATIVE ACTION OF THE ASSESSEE. THEREFORE, THE ORDER OF THE TRIBUNAL CANNOT BE REVIEWED UNDER THE GARB OF RECTIFICATION. WE ACCORDINGLY FIND NO MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND WE DISMISS THE SAME. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5 TH JUNE, 2015 JJ:0505 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR