Rajasthan High Court - Jaipur
Cit vs Roop Narain Sardar Mal on 8 July, 2003
Equivalent citations: [2004]134TAXMAN350(RAJ)
ORDER
None appeared for the assessee today. Nor anybody appeared for the assessee on 22-4-2003 and 29-4-2003, when the matter was listed for hearing. Therefore, we proceed to decide the matter ex parte.
2. On an application under section 256(1) of the Income Tax 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 dated 29-10-1993 passed under section 254(1) in exercise of its powers under section 254(2) of the Income Tax 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 section 132 of the Income Tax 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 section 132(5) as well as the assessment proceedings, the assessee submitted explanation regarding both these discrepancies, but the assessing officer 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 Commissioner (Appeals) deleted both the additions. This is with regard to assessment year 1985-86. For the assessment year 1986-87, the assessing officer 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 Commissioner (Appeals) sustained this addition of Rs. 15,000.
5. In appeal before the Tribunal, the Tribunal, in the first order dated 29-10-1993, has taken the view that the evidence is not properly appreciated by the Commissioner (Appeals). The order of the Commissioner (Appeals) was set aside and the matter was remitted to the Commissioner (Appeals) to decide it afresh, after giving opportunity to both the sides.
Thereafter, two miscellaneous applications were moved under section 254(2) for rectification in the order of the Tribunal dated 29-10-1993. After considering the submissions, the Tribunal has held that the Commissioner (Appeals) has properly appreciated the evidence and order of Commissioner (Appeals) has been upheld. In reference, order dated 12-10-1994 has been questioned.
None appeared for the assessee.
6. 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 Commissioner (Appeals) 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 Commissioner (Appeals), the Tribunal has observed at page 12 in the order dated 29-10-1993 under :
"We have already mentioned that while the assessee has filed paper books consisting of 237 pages before us the ld. Commissioner (Appeals) has hardly referred to any material, which is contained in that paper book. In our opinion, he should have considered and given his opinion on at least those important pieces of evidence which were adduced before him or before the assessing officer and which were relevant to the issue before Commissioner (Appeals)."
Thereafter, miscellaneous applications have been moved and the Tribunal has, on those miscellaneous applications, just upheld the view of the Commissioner (Appeals), whereby the Commissioner (Appeals) has given relief to the assessee. When, at one stage, the Tribunal has taken the view that the Commissioner (Appeals) 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 at least it cannot be said that there was an apparent mistake in the order dated 29-10-1993 which can be corrected on application under section 254(2) of the Income Tax Act.
7. In our considered opinion, the Tribunal has committed error in upholding the view of the Commissioner (Appeals), after specific observations that the Commissioner (Appeals) has not properly appreciated the evidence on record. That cannot be said to be an apparent mistake which can be corrected under section 254(2) of the Income Tax Act, 1961.
8. 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.