Shri A. K. Garodia, AM

1. This miscellaneous application is filed by the assessee pointing out certain mistakes in the tribunal order. The contents of the miscellaneous application are reproduced below:

The present application is filed by the applicant/appellant above named for setting aside the order dated 13/10/2010 passed by this Honble ITAT by restoring the issue to the file of assessing officer and thus allowing the above mentioned appeal filed by the Appellant (Original Appellant) for statistical purposes. It is most respectfully submitted that in the said order of the Honble ITAT, there is error apparent on the record.

2. The applicant most respectfully submits that as it can be observed from the order of the Honble ITAT, the following two judgments of the High Courts directly on the point, cited and relied upon by the AR of the Applicant in support of his arguments at the time of hearing of the appeal before the Tribunal, have not been even referred to, much less discussed by the Tribunal while disposing off the appeal.

1 Paul Mathews & Sons v. CIT (2003) : 263 ITR 101(Ker)

2 CIT v. S. Khader Khan Son (2008) : 300 ITR 157(Mad) Similarly the Counsel for the Applicant had relied upon, and handed over, a copy of the Tribunal Order in the case of Smt. Babiben R. Patel, L/R Shri Mangaldas Shambhubhai Patel v. ITO (ITA 32 & 33/Ahd/2004). The same has also not been even referred to, much less discussed by the Tribunal while disposing off the appeal. As such non -consideration of the relevant judgments constitutes a mistake apparent in the order of the Tribunal. The Applicant therefore, respectfully submits that in the larger interest of justice the Honble Tribunal be pleased to accept the prayer of the applicant/appellant and modify the order as stated above so as to appreciate the correct facts.

In the course of hearing before us, Ld. A.R. reiterated the same contentions, which are raised in the miscellaneous application. As against this, it was submitted by the Ld. D.R. that there is no apparent mistake in the Tribunal order because it is noted by the Tribunal on page 10 of the impugned tribunal order that the facts require verification. He placed reliance on the following judgements:

(a) : 293 ITR 365 (Del.) Ras Bihari Bansal Vs CIT and Another

(b) : 176 ITR 535 (S.C.) CIT Calcutta Vs Karam Chand Thapar & Bros. Pvt. Ltd.

2. We have considered the rival submission, perused the material one record and have and have gone through the order of authorities below and the judgement cited by the assessee in the miscellaneous application and the judgments cited by the Ld. D.R. in the course of hearing before us. We find that the issue in dispute before the tribunal was regarding addition made by the A.O. of Rs. 34,69,372/-. In that case, the survey took place on 18.09.2002 and in the course of survey, the survey team worked out that the stock as per books on the date of survey was negative amount of Rs. 8,44,800/- and for this purpose, the A.O. had adopted GP rate of 4.6% which was disclosed by the assessee in assessment year 2001-02. Physical stock found in the course of survey was of Rs. 26,24,572/- and on this basis, by adding both the amounts, addition was made by the A.O. of Rs. 34,69,372/-. Before the Tribunal, it was the claim of the assessee that although sometime was allowed by the survey team to update books of accounts which were found incomplete at the time of survey and the assessee tried to complete the books of account but still some purchases remained to be entered into for which full details along with matching invoices were furnished during the assessment proceeding but the same was arbitrarily rejected by the authorities below without proper verification and proper appreciation. These contentions of the assessee are noted by the Tribunal in para 7 of the impugned tribunal order. Thereafter, as per para 8 of the Tribunal order, the matter was set aside by the Tribunal to the file of the A.O. for a fresh decision after verification of all the explanation and evidences furnished by the assessee. Now, in the light of these facts, we examine the applicability of various judgments cited by the assessee in the miscellaneous application. -The first judgment is of Honble Kerala High Court rendered in the case of Paul Mathews and Sons (supra). In our considered opinion, this judgment is not applicable in the present case because in that case also, survey was carried out in the case of that assessee and in the course of assessment proceedings in that case, some offer was made by the assessee which was accepted by the A.O. and thereafter, Ld. CIT exercised his jurisdiction u/s 263 and in respect of such exercise of jurisdiction u/s 263 by Ld. CIT, it was held by Honble Kerala High Court that the assessment order was not erroneous and prejudicial to the interest of the revenue. In the present case, no jurisdiction was exercised by CIT u/s 263 and hence, this judgment is of no help to the assessee in the present case.

-The 2nd judgment cited by the assessee in the miscellaneous application is of Honble Madras High Court rendered in the case of CIT Vs S. Khader Khan son (supra). In that case, it was held by Honble Madras High Court that the statement in survey operation is not conclusive piece of evidence and if such statement is subsequently retracted then the amount disclosed by the assessee at that time in the course of first statement, cannot be the basis to assess the income in the hands of the assessee. In that case, it was found by the A.O. that certain books were not produced or impounded at any time and not produced during the course of survey action and certain entries in the books were made subsequent to the survey action and only at the time of survey action, the assessee had come forward with the admission. Under these facts, the A.O. came to the conclusion in that case that he has reason to believe that assessee has evaded production of those books during the survey action and even after survey action as it could be seen from the survey and accordingly, the A.O. did not accept the books being branch folders contractors agent book because the same was produced after the survey to support the claim of manufacturing process. He completed the assessment without considering such books and when the matter was carried before CIT(A), he allowed relief to the assessee in that case and this order of CIT(A) was confirmed by the Tribunal in that case. It was held by Honble Madras High Court in that case that merely on the basis of statement given by a partner, income cannot be assessed because such statement has no evidentiary value as rightly had been held by Ld. CIT(A) and the Tribunal in that case because there was no material on record to prove the existence of such disclosed income or earning of income in the hands of the assessee. In the present case, addition is not made on the basis of the statement in the course of survey but the addition was made by the A.O. on the basis of discrepancy found in the books of account regarding physical stock on the date of survey and, therefore, this judgment is also not relevant in the present case.

-The 3rd judgment cited by the assessee in the miscellaneous application is the tribunal decision rendered in the case of Smt. Babiben R Patel (supra). A copy of this tribunal decision in I.T.A.No. 32 & 33/Ahd/2004 dated 16.07.2010 is available in the appeal file. In that case, it is noted by the tribunal in para 7 of this tribunal order that the assessee is a shroff and commission agent and its vouchers found during the course of survey on 01.03.2000 were recorded in the books of account, cheque collection register and the assessee has produced before the tribunal, the complete details in the paper book explaining how the vouchers found during the course of survey were recorded relevant detail are in the paper book. It is also observed by the tribunal that in that case, addition made by the A.O. and confirmed by Ld. CIT(A) is just on the basis of statement of the assessee recorded during the course of survey. Under these facts, it was held by the tribunal that addition on the basis of mere statement of the assessee without any other material on record, cannot be sustained. In the present case, addition was not made by the A.O. on the basis of statement alone but it was on the basis of difference found in the physical stock taken by the survey team on the date of survey and book stock worked out by the survey team at a (-) figure of Rs. 8,44,800/-. Hence, this tribunal decision is also not applicable in the present case.

3. In the light of above discussion, we feel that the contentions raised by the assessee in the miscellaneous application that these three judgments were not considered by the tribunal in the impugned tribunal order, has no bearing on the final outcome of the tribunal order because, we have seen that none of these judgments is applicable in the facts of the present case and, therefore, we do not find any apparent mistake in the tribunal order which call for any rectification u/s 254(2) of the Act.

4. In the result, miscellaneous application of the assessee is dismissed. Order pronounced in the open court on the date mentioned hereinabove.