IN INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER MA Nos.7, 8, 9, 10(Asr)/2013 (Arising out of ITA Nos. 474,475,476 & 477(Asr)/2013) Assessment years:1998-99 to 2001-02 PAN : AAFFG5483N M/s. Ganga Singh & Sons, vs. Income Tax Officer, (Manufacturers), Jalandhar. Ward 2(1), Jalandhar. (Appellant) (Respondent) MA Nos.11,12,13 & 14(Asr)/2013 (Arising out of ITA Nos. 477 to 481(Asr)/2013) Assessment years:1998-99 to 2001-02 PAN : AAFFG9543D M/s. Ganga Singh (Engineers) vs. Income Tax Officer, Jalandhar. Ward 2(1), Jalandhar. (Appellant) (Respondent) MA Nos.18 & 19(Asr)/2013 (Arising out of ITA Nos. 482 & 483(Asr)/2013) Assessment years:2000-01 & 2001-02 PAN : AAEFG4784B M/s. Ganga Singh & Sons, vs. Income Tax Officer, Jalandhar. Ward 2(1), Jalandhar. (Appellant) (Respondent) Appellants by: Sh.M.R. Bhagat Respondent by: Sh. Rahul Dhawan, DR Date of hearing: 14/10/2016 Date of pronouncement: 18/10/2016 2 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 ORDER PER T.S. KAPOOR, AM: This is bunch of ten Miscellaneous Applications filed by three different assessees against order of Tribunal dated 08.11.2012. grievances raised in these Misc. Applications are common and these were heard together and therefore, for sake of convenience are being disposed off by through this common and consolidated order. 2. ld. AR first took up Misc. Applications in case of M/s. Ganga Singh & Sons (Manufacturers), Jalandhar. ld. AR submitted that there are number of mistakes in impugned order dated 08.11.2012. ld. AR submitted that Tribunal had committed mistake by not adjudicating Ground no.2A, which assessee had taken as additional ground and in this respect our attention was invited to order of Tribunal at page 13, where Tribunal had noted down said additional ground of appeal. It was submitted that Tribunal had admitted this ground vide para 14 but had not adjudicated on same and therefore, it was argued that non- adjudication ground of appeal amounts to mistake apparent from record, which needs to be rectified. 2.1. ld. counsel further invited our attention to page 15 of Tribunal order, where Tribunal had noted down sales declared by assessee and that as per information under section 133(6) for assessment years 1999-2000, 2000-01 & 2001-12. ld. counsel 3 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 submitted that Hon ble Tribunal had wrongly noted these sales figures and in this respect our attention was invited to ld. CIT(A) s order at page 7, where ld. CIT(A) had noted down sales figures of M/s. Ganga Singh Manufacturers for these years, i.e. 1999-2000 to 2001-02. Ld. AR submitted that as per CIT(A) s findings at page 7, sale of firm for assessment year 1998-99 was Rs.1,71,634/- and therefore, it was argued that there is apparent mistake in order of Tribunal, which needs to be rectified. 2.2 Inviting our further attention to order of Tribunal at page 17, ld. AR submitted that assessee had sought permission of Tribunal to produce books of account which Tribunal had rejected. However, in order, Tribunal had mentioned that even before Bench, same were not produced. Therefore, it was submitted that this finding of Tribunal is also required to be rectified. 2.3. Coming to last mistake of application of net profit rate of 5%, ld AR submitted that Tribunal had not recorded at any basis for confirming net profit rate of 5%, which ld. CIT(A) had upheld, according to provisions of section 44AF, whereas fact remains that provisions of section 44AF were not applicable to assessee as assessee was manufacturer and not retailer. ld. AR in this respect invited our attention to order of ld. CIT(A) in earlier round where ld. CIT(A) had noted that AO had not given any basis for applying net profit rate by citing any comparable case whereas in second round, ld. CIT(A) confirmed net profit rate of 5% 4 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 inspite of fact that AO in remand proceedings had expressed his inability to find any comparable case. 3. As regards mistakes in other two cases raised in Misc. Applications, ld. counsel for submitted that only mistake in these two cases is confirmation of net profit rate @ 5% and his arguments remained same as given hereinabove. 4. Ld. DR, on other hand, invited our attention to page 20 of Tribunal order and submitted that Tribunal had clearly adjudicated additional ground and had dismissed grounds no.2 & 3 of appeal and ground 2 included ground no.2A raised by assessee as additional ground and therefore, it was submitted that that it was not mistake apparent from record because Tribunal had disposed off additional ground by rejecting same. 4.1. As regards dispute in sale figure, ld. DR took us to assessment order for assessment year 1998-99 and invited our attention to para 7 of order and submitted that Tribunal had not committed any mistake by noting wrong sale figure as sale figures are emanating from assessment order as well as from ld. CIT(A) order and therefore, there cannot be said to be any mistake in order of Tribunal. 5 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 4.2. As regards permission to produce books of account, ld. DR invited our attention to page 17 of order of Tribunal and submitted that Bench never desired books of account to be produced before it and rather has made finding of fact that in first round as well as in second round, assessee did not produce books of account. 4.3. Regarding application of 5% net profit rate, ld. DR submitted that confirming action of ld. CIT(A) of application of net profit rate @ 5% does not lead to any mistake in order as Tribunal had confirmed same, keeping in view facts and circumstances of present cases and by holding that profit as earned by assessee was much more than estimated by AO and confirmed by ld. CIT(A). 5. We have heard rival contentions and have gone through material available on record. We find that additional ground raised by ld. counsel during appellate proceedings before Tribunal was admitted by Tribunal vide para 14 and Tribunal had also adjudicated same vide para 14.10, where Tribunal had dismissed ground nos. 2 & 3. relevant findings of Tribunal are reproduced below: 14.10. As regards rejection of application under Rule 46A, we confirm findings of ld. CIT(A) since assessee has not produced books of account and also reconciliation of sales made outside books of account. Therefore, in absence of any books of account and any reconciliation with regard to sales made outside books of account, additional evidence by Ld. CIT(A) has rightly been rejected under Rule 46A of I.T.Rules. As 6 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 matter of fact, additional evidences filed by assessee with regard to books of account, which were never produced by assessee or were produced in part could not serve purpose of additional evidences and therefore, assessee had on one side raised additional ground for producing books of account and on other hand, he had argued and submitted before ld. CIT(A) as well as before us that books of account could not be produced because of dispute in family. Therefore, raising of additional ground as additional evidence became infructuous which has rightly been rejected by ld. CIT(A). Thus, grounds No.2 & 3 of assessee are dismissed. Therefore, argument of ld. counsel that additional ground was not adjudicated do not hold any force and therefore, this ground of Misc. Application is rejected. 6. Now coming to sale figures noted down by ITAT at page 15 of order, we find that ITAT had noted sale figures declared by assessee and those are as per information received under section 133(6) for assessment years 1999-2000 to 20001-02. ld. counsel had brought to our notice figure as noted by ld. CIT(A) in his order for assessment year 1998-99, which is not comparable with figure noted by Tribunal, as Tribunal had not noted down figure for A.Y. 1998-99. We further find that Tribunal had noted down following figure of sales in assessment years 1999-2000 to 2001-02: Asstt. Year Sales declared Payment received as per assessee information u/s 133(6) 1999-2000 24,87,969/- 53,19,587/- 2000-01 11,84,715/- 52,10,613/- 2001-02 2,85,199/- 21,95,462/- above sale figures are exactly same as noted by AO vide para 8 of his order for respective assessment years. For sake of 7 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 convenience, finding of AO for three years mentioning therein sales declared by assessee are reproduced below: A.Y.1999-2000 8. During year under assessment, assessee has shown gross profit of Rs.2,95,973/- on total sales of Rs.24,87,969/-. However, information u/s 133(6) of Income Tax Act, 1961 was called for from office of FA & CAO, Rail Coach Factory, Kapurthala. According to information furnished by aforesaid office, assessee received payment of Rs.53,19,587/-. In view of above assessee has suppressed its sale. Since assessee has not produced books of account during entire assessment proceedings it is not possible to verify sales and purchases declared and expenses debited to P & L Account. Therefore, by applying net profit rate of 5% on total sales of Rs.53,19,587/-, profit worked out to Rs.2,65,979/-. A.Y.2000-2001 8. During year under assessment, assessee has shown gross profit of Rs.1,40,507/- on total sales of Rs.11,84,715/-. However, information u/s 133(6) of Income Tax Act, 1961 was called for from office of FA & CAO, Rail Coach Factory, Kapurthala. According to information furnished by aforesaid office, assessee received payment of Rs.52,10,613/-. In view of above assessee has suppressed its sale. Since assessee has not produced books of account during entire assessment proceedings it is not possible to verify sales and purchases declared and expenses debited to P & L Account. Therefore, by applying net profit rate of 5% on total sales of Rs.52,10,613/-, profit worked out to Rs.2,60,530/-. A.Y.2001-02 8. During year under assessment, assessee has shown gross profit of Rs.33,824/- on total sales of Rs.2,85,199/-. However, information u/s 133(6) of Income Tax Act, 1961 was called for from office of FA & CAO, Rail Coach Factory, Kapurthala. According to information furnished by aforesaid office, assessee received payment of Rs.21,95,462/-. In view of above assessee has suppressed its sale. Since assessee has not produced books of account during entire assessment proceedings it is not possible to verify sales and 8 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 purchases declared and expenses debited to P & L Account. Therefore, by applying net profit rate of 5% on total sales of Rs.21,95,462/-, profit worked out to Rs.1,09,773/-. We find that figures noted by Tribunal are exactly same as noted by AO and therefore, there is no mistake apparent from record as Tribunal had noted down sale figures as noted by AO. Therefore, this contention of assessee is also not tenable. 7. As regards permission to produce books of account, we find that assessee did not produce books account during two rounds before AO and ld. CIT(A) and Tribunal had given finding in this respect vide para 14.6, wherein Tribunal has held that ld. counsel for assessee on one hand had argued that he had produced books of account before lower authorities and on other hand had argued that same can be produced if matter is restored to AO or ld. CIT(A). For sake of convenience and clarity para 14.6 of order of Tribunal is reproduced below: 14.6. As regards production of books of account, Mr. M.R.Bhagat, on one hand argued that he had produced books of account before AO in original proceedings as well as in second round before ld. CIT(A) and before AO in remand proceedings. This fact is incorrect in view of findings of ld. CIT(A) and in absence of any evidence in this regard produced before us even. Mr. M.R. Bhagat, on other hand argued that books of account cannot be produced because of dispute in family and same can be produced if matter is restored back to file of ld. CIT(A) or A.O. This argument of ld. counsel for assessed, Mr. M.R. Bhagat tantamount to blowing hot and cold in same breath i.e. on one side he is making arguments that has produced books of account before lower 9 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 authorities and on other hand he is arguing that books of account cannot be produced because of dispute in family and can be produced if second chance is given by restoring matter to Ld. CIT (A) or A.O. Such books of account were not produced before Bench even for sake of argument, though same were not desired to be produced by Bench. Therefore, prayer of ld. counsel for assessed, Mr. M.R. Bhagat for restoring matter to file of lower authorities for producing books of account now and that too showing his non-cooperation throughout in first round as well as in second round can not be given and such prayer of Mr. M.R. Bhagat is rejected. From above facts and circumstances of case, grievance of assessee raised in Misc. Application is not mistake apparent from record and therefore, this contention is also rejected. 8. As regards application of net profit rate of 5%, we find that Tribunal vide para 14.9 has held that profit earned by assessee was much more than estimated by AO and confirmed by ld. CIT(A), but it had no alternative than to confirm action of ld. CIT(A). We find that Tribunal was of view that assessee had earned much more profits than profit estimated by AO, but in view of fact that Tribunal cannot enhance tax liability, Tribunal confirmed action of ld. CIT(A), which is based on facts and circumstances of present case. 9. argument of ld. counsel for assessee that Bench had ignored provisions of section 44AF did not have force as ld. CIT(A) did not make addition as per provisions of section 44AF. Therefore, this contention of ld. counsel is also rejected. 10 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 10. contentions raised by ld. counsel for assessee are of arguments in nature and these cannot be subject matter of provisions of section 254(2) of Act. order of Tribunal, which assessee wants to get rectified does not contain any mistake apparent from record, as in order to attract application of section 254(2), mistake must exist and same must be apparent from record. power to rectify mistake, however, does not cover cases where revision or review of order is intended. amendment of order does not mean obliteration of order originally passed and its substitution by new order which is not permissible under provisions of section 254(2). 11. Hon ble Calcutta High Court in case of CIT vs. Gokul Chand Agarwal (202 ITR 14), has held as under: Section 254(2) of 1961 Act empowers Tribunal to amend its order passed under Section 254(1) to rectify any mistake apparent from record either suo motu or on application. jurisdiction of Tribunal to amend its order thus depends on whether or not there is mistake apparent from record. If, in its order, there is no mistake which is patent and obvious on basis of record, exercise of jurisdiction by Tribunal under Section 254(2) will be illegal and improper. oversight of fact cannot constitute apparent mistake rectifiable under Section 254(2) of Act. This might, at worst, lead to perversity of order for which remedy available to assessee is not Section 254(2) but reference proceeding under Section 256. normal rule is that remedy by way of review is creature of statute and, unless clothed with such power by statute, no authority can exercise power. Review proceedings imply proceedings where party, as of right, can apply for reconsideration of matter, already decided upon, after fresh hearing on merits of controversy between 11 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 parties. Such remedy is certainly not provided by Income Tax Act, 1961, in respect of proceedings before Tribunal. 12. In similar situation, while dealing with rectification, Hon ble Andhra Pradesh High Court in case of CIT and Anr. Vs. I.T.A.T and Anr, 206 ITR 126, has held as under: "The Appellate Tribunal, being creature of statute, has to confine itself in exercise of its jurisdiction to enabling or empowering terms of statute. It has no inherent power. Even otherwise, in cases where specific provision delineates powers of court or Tribunal, it cannot draw upon its assumed inherent jurisdiction and pass orders as it pleases. power of rectification which is specifically conferred on Tribunal has to be exercised in terms of that provision. It cannot be enlarged on any assumption that Tribunal has got inherent power of rectification or review or revision. It is axiomatic that such power of review or revision has to be specifically conferred; it cannot be inferred. Unless there is mistake apparent from record in sense of patent, obvious and clear error or mistake, Tribunal cannot recall its previous order. If error or mistake is one which could be established only by long-drawn arguments or by process of investigation and research, it is not mistake apparent from record. If two views are possible on point of law, and one of alternatives is accepted in its previous order, it cannot be held that mistake is apparent from record. Unless there are manifest errors which are obvious, clear and self-evident, Tribunal cannot recall its previous order in attempt to rewrite order. 13. Similarly, Hon ble Supreme Court in case of CIT vs. Karam Chand and Bros. P. Ltd., 176 ITR 535 has held as under It is equally settled that decision of Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by Tribunal or whether some incidental fact which appears on record has not been noticed by tribunal in its judgment. If court, on fair reading of judgment of Tribunal finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, decision of Tribunal is not 12 MA Nos.7 to 10(Asr)/2013 `` MA Nos.11 to 14(Asr)/2013 MA No.18 & 19(Asr)/2013 liable to be interfered with, unless, of course, conclusions arrived at by Tribunal are perverse. It is not necessary for Tribunal to state in its judgement specifically or in express words that it has taken into account cumulative effect of circumstances or has considered totality of facts, as if that were magic formula ; if judgment of Tribunal shows that it has, in fact, done so, there is no reason to interfere with decision of Tribunal. 14. Thus, keeping in view facts and circumstances of present Misc. Applications and in view of judicial precedents as noted above, there is no mistake in order of ITAT which is apparent from records and therefore, Misc. Applications filed by assessees are dismissed. 15. In result, all ten Miscellaneous Applications are dismissed. Order pronounced in open court on 18/10/2016. Sd/- Sd/- (N.K. CHOUDHRY) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER /SKR/ Dated: 18/10/2016 Copy of order forwarded to: 1. Assessees.M/s. Ganga Singh & Sons (Manufacturers) (ii) M/s. Ganga Singh Engineers (iii) M/s. Ganga Singh & Sons 2. ITO Ward 2(1), Jalandhar 3. CIT(A), Jalandhar 4. CIT, Jalandhar. 5. SR DR, ITAT, Amritsar. True copy By order Income Tax Appellate Tribunal, Amritsar Bench: Amritsar. M/s. Ganga Singh & Sons (Manufacturers) v. Income Tax Officer, Ward 2(1), Jalandhar