High Court Of Rajasthan : Jaipur Bench
CIT vs. Roop Narain Sardar Mal
Sections 254(2)
Asst. Year 1985-86, 1986-87
Y.R. Meena & Shashi Kant Sharma, JJ.
IT Ref. No. 14 of 1998
8th July, 2003
Counsel Appeared
J.K. Singhi & Anuroop Singhi, for the Revenue : None, for the Assessee
JUDGMENT
BY THE COURT :
None appeared for the assessee today. Nor anybody appeared for the assessee on 22nd April, 2003 and 29th April, 2003, when the matter was listed for hearing. Therefore, we proceed to decide the matter ex parte.
2. On an application under s. 256(1) of the IT Act, 1961, the Tribunal has referred the following question for the opinion of this Court :
“Was the Tribunal, under the facts and circumstances of the case and in law, right in recalling its earlier order dt. 29th Oct., 1993, passed under s. 254(1) in exercise of its powers under s. 254(2) of the IT Act, 1961 ?”
3. The assessee is a partnership firm carrying on business of silver and gold ornaments. There was a search conducted by the Department under s. 132 of the IT Act on 4th and 5th May, 1984. In the search, the Department worked out an excess stock of silver at 31.706 kgs. The Revenue also found excess cash to the tune of Rs. 92,535 than what was recorded in the books of account. During the assessment under s. 132(5) as well as the assessment proceedings, the assessee submitted explanation regarding both these discrepancies, but the AO rejected the assessee’s explanation and added Rs. 92,535 as unexplained cash and Rs. 90,680 as unexplained silver ornaments weighing 31.706 kgs. as total income of the assessee.
4. On appeal, the CIT(A) deleted both the additions. This is with regard to asst. yr. 1985-86. For the asst. yr. 1986-87, the AO found some discrepancy in the stocks and sales of silver ornaments. After considering all the aspects, he made a net addition of Rs. 1,23,545 on account of this discrepancy. Out of this, the CIT(A) sustained this addition of Rs. 15,000.
5. In appeal before the Tribunal, the Tribunal, in the first order dt. 29th Oct., 1993, has taken the view that the evidence is not properly appreciated by the CIT(A). The order of the CIT(A) was set aside and the matter was remitted to the CIT(A) to decide it afresh, after giving opportunity to both the sides.
6. Thereafter two miscellaneous applications were moved under s. 254(2) for rectification in the order of the Tribunal dt. 29th Oct., 1993. After considering the submissions, the Tribunal has held that the CIT(A) has properly appreciated the evidence and order of CIT(A) has been upheld. In reference, order dt. 12th Oct., 1994, has been questioned.
7. None appeared for the assessee.
8. Heard Mr. Singhi, learned counsel for the Department. The facts are not in dispute and after hearing both the sides, the Tribunal has set aside the order of the CIT(A) and remanded the matter back to him to decide the issues involved afresh, after properly appreciating the evidence on record, that too, after hearing both the sides. While setting aside the orders of the CIT(A), the Tribunal has observed at p. 12 in the order dt. 29th Oct., 1993, as under : “We have already mentioned that while the assessee has filed paper books consisting of 237 pages before us the learned CIT(A) has heardly referred to any material which is contained in that paper book. In our opinion, he should have considered and given his opinion on atleast those important pieces of evidence which were adduced before him or before the AO and which were relevant to the issue before CIT(A).” Thereafter, miscellaneous applications have been moved and the Tribunal has, on those miscellaneous applications, just upheld the view of the CIT(A), whereby the CIT(A) has given relief to the assessee. When, at one stage, the Tribunal has taken the view that the CIT(A) has not properly looked into the papers in the paper book which was submitted to him and he should reconsider his views and discuss the evidence which has been brought on record in the form of paper book, in our view, there is nothing wrong in the observations in the earlier order and atleast it cannot be said that there was an apparent mistake in the order dt. 29th Oct., 1993, which can be corrected on application under s. 254(2) of the IT Act. In our considered opinion, the Tribunal has committed error in upholding the view of the CIT(A), after specific observations that the CIT(A) has not properly appreciated the evidence on record. That cannot be said to be an apparent mistake which can be corrected under s. 254(2) of the IT Act, 1961. In the result, we answer the question in negative, i.e., in favour of the Revenue and against the assessee. The reference so made, stands disposed of accordingly.
[Citation : 267 ITR 601]
