Income Tax Appellate Tribunal - Indore
Sharda Devi Mittal , Indore vs Assessee on 20 April, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL,
INDORE BENCH, INDORE
BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARMA, A.M.
M.A.NO.03/IND/2012
Arising out of I.T(SS).A.No. 25 & C.O. 19/Ind/2011
A.Y. : 2005-06
Shri Om Prakash Mittal, ACIT,
(HUF). 2(1),
Indore. vs Indore.
Applicant Respondent
M.A.NO.04 & 05/IND/2012
Arising out of I.T(SS).A.Nos. 10 & 11 and C.O.Nos. 14 &
15/Ind/2011
A.Y. : 2003-04 & 2006-07
Smt. Sharda Devi Mittal, ACIT,
21/3, Old Palasia, 2(1),
Indore. vs Indore.
Applicant Respondent
M.A.NO.06 & 07/IND/2012
Arising out of I.T(SS).A.Nos. 08 & 09 and C.O.Nos. 23 &
24/Ind/2011
A.Y. : 2003-04 & 2005-06
M/s.Malwa Laminators, ACIT,
403, Rajani Bhawan, Range-2,
M. G. Road,
Indore. vs Indore.
Applicant Respondent
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M.A.NO.08 & 09/IND/2012
Arising out of I.T(SS).A.Nos. 12 & 14/Ind/2011 & C.O.
Nos. 21 & 22/Ind/2011
A.Y. : 2003-04 & 2006-07
Shri Mahesh Mittal, ACIT,
21/3, Old Palasia, Range-2,
Indore. vs Indore.
Applicant Respondent
M.A.NO.10, 11 & 12/IND/2012
Arising out of I.T(SS).A.Nos. 27 to 29/Ind/2011 and
C.O.Nos. 18, 16 and 17/Ind/2011
A.Y. : 2003-04, 2005-06 & 2006-07
Smt. Urmila Mittal, ACIT,
21/3, Old Palasia, Range-2,
Indore. vs Indore.
Applicant Respondent
M.A.NO.13/IND/2012
Arising out of I.T(SS).A.No. 17/Ind/2011 and C.O.
No.20/Ind/2011
A.Y. : 2006-07
Shri Mahesh Mittal, ACIT,
(HUF). 2(1),
21/3, Old Palasia, Range 2,
Indore. vs Indore.
Applicant Respondent
M.A.NO.14, 15 & 16/IND/2012
Arising out of I.T(SS).A.Nos. 23, 24 & 15/Ind/2011 and
C.O.Nos. 35, 34 & 33/Ind/2011
A.Y. : 2003-04, 2005-06 & 2006-07
Smt. Vandana Mittal, ACIT,
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362, Saket Nagar, Range-2,
Indore. vs Indore.
Applicant Respondent
M.A.NO.17 & 18/IND/2012
Arising out of I.T(SS).A.Nos. 79,.16 & 21/Ind/2011 and
C.O.Nos. 32 & 31/Ind/2011
A.Y. : 2003-04 & 2006-07
Shri Pravin Mittal, ACIT,2(1),
21/3, Old Palasia, Range-2,
Indore. vs Indore.
Applicant Respondent
M.A.NO.19, 20 & 21/IND/2012
Arising out of I.T(SS).A.Nos. 21 & 22 & 89/Ind/2011 and
C.O.Nos. 13 & 12/Ind/2011
A.Y. : 2003-04, 2006-07 & 07-08
Shri Kapil Mittal, ACIT,2(1),
21/3, Old Palasia, Range-2,
Indore. vs Indore.
Applicant Respondent
M.A.NO.22 to 27/IND/2012
Arising out of I.T(SS).A.Nos. 03 to 07/Ind/2011,
90/Ind/2011 and C.O.Nos. 25 to 29/Ind/2011
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A.Y. : 2002-03 to 2007-08
M/s.Narmada ACIT,2(1),
Extrusions Limited, Range-2,
Indore. vs Indore.
Applicant Respondent
M.A.NO. 38 to 43/IND/2012
Arising out of I.T(SS).A.Nos. 03 to 07/Ind/2011 and
90/Ind/2011
A.Y. : 2002-03 to 2007-08
ACIT,2(1), M/s.Narmada Extrusions
Range-2, Limited,
Indore. vs Indore.
Applicant Respondent
M.A.NO.44, 45 & 46/IND/2012
Arising out of I.T(SS).A.Nos. 12, 14 & 17/Ind/2011
A.Y. : 2003-04, 2006-07 & 2006-07
ACIT,2(1), Shri Mahesh
Range-2, Mittal/Mahesh Mittal
Indore. (HUF),
21/3, Old Palasia,
vs Indore.
Applicant Respondent
M.A.NO.47, 48 & 49/IND/2012
Arising out of I.T(SS).A.Nos. 23, 24 & 15/Ind/2011)
A.Y. : 2003-04, 2005-06 & 2006-07
ACIT,2(1), Smt. Vandana Mittal,
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Range-2, vs. 362, Saket Nagar,
Indore. Indore.
Applicant Respondent
M.A.NO.50,51 & 52/IND/2012
Arising out of I.T(SS).A.Nos. 21 & 22 & 89/Ind/2011
A.Y. : 2003-04, 2006-07 & 07-08
ACIT,2(1), Shri Kapil Mittal,
Range-2, 21/3, Old Palasia,
Indore. Indore.
vs
Applicant Respondent
M.A.NO.53 & 54/IND/2012
Arising out of I.T(SS).A.Nos. 16 & 79/Ind/2011
A.Y. : 2003-04 & 2006-07
ACIT,2(1), Shri Pravin Mittal,
Range-2, 21/3, Old Palasia,
Indore. Indore.
vs
Applicant Respondent
M.A.NO.55 & 56/IND/2012
Arising out of I.T(SS).A.Nos. 10 & 11/Ind/2011
A.Y. : 2003-04 & 2006-07
ACIT,2(1), Smt. Sharda Devi Mittal,
Range-2, 21/3, Old Palasia,
Indore. Indore.
vs
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Applicant Respondent
M.A.NO.57 & 58/IND/2012
Arising out of I.T(SS).A.Nos. 08 & 09/Ind/2011
A.Y. : 2003-04 & 2005-06
ACIT,2(1), M/s.Malwa Laminators,
Range-2, 403, Rajani Bhawan,
Indore M. G. Road,
vs Indore.
Applicant Respondent
M.A.NO.59/IND/2012
Arising out of I.T(SS).A.No. 25/Ind/2011
A.Y. : 2005-06
ACIT,2(1), Shri Om Prakash Mittal,
Range-2, (HUF).
Indore
vs Indore.
Applicant Respondent
M.A.NO.60, 61 & 62/IND/2012
Arising out of I.T(SS).A.Nos. 27 to 29/Ind/2011
A.Y. : 2003-04, 2005-06 & 2006-07
ACIT,2(1), Smt. Urmila Mittal,
Range-2, vs. 21/3, Old Palasia,
Indore Indore.
Applicant Respondent
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Department by : Shri Keshave Saxena, CIT DR
Assessee by : Shri S.N.Agarwal and Shri Pankaj
Mongra, CAs
Date of Hearing : 20.04.2012
Date of : 01.05.2012
pronouncement
ORDER
PER R. C. SHARMA, A.M.
These Misc. Applications are filed by the assessee and Revenue in respect of the order of Tribunal dated 30th December, 2011, passed in the case of Narmada Extrusions Limited and Other individuals/HUF/Firms of Mittal Group. Through these petitions, both assessee and Revenue have pointed out that there are certain apparent mistakes which are required to be rectified u/s 254(2) of the Income-tax Act, 1961.
2. We have gone through the Misc. petitions filed by the assessee and Revenue and find that certain apparent mistakes have been pointed out in the order of the Tribunal dated 30th December, 2011. First we deal with the Misc. petition filed by the Revenue, wherein it was stated that unaccounted cash 7
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book was impounded for ten months from 1.8.2005 to 2.5.2006 and not for one month as considered by the Tribunal for the period 1.4.2006 to 2.5.2006, which amounts to mistake apparent from record. In this regard, we found that the Assessing Officer in his order passed in the case of Narmada Extrusions Limited and Others, had reproduced copy of alleged cash book of Lunkad Group for the period of one month only. During the course of hearing, the ld. Senior DR had claimed that said cash book was for the period of ten months and not for one month as considered by the Bench.
On the other hand, contention of ld. Authorized Representative was that the said alleged cash book of Lunkad Group for ten months was never provided to the assessee either during the course of assessment or during the course of hearing before the First Appellate Authority, thus, the same cannot be used as evidence against the assessee. As per ld. Authorized Representative , the documents collected by the Department behind the back of the assessee cannot be used against the assessee until the same was provided and reasonable opportunity was given to the assessee to explain the same and 8
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for this purpose reliance was placed on the decision of Hon'ble Supreme Court in the case of Kishan Chand Chelaram, 125 ITR 713.
3. We had gone through the order of the Tribunal dated 30th December, 20-11, wherein at page 16 to 24 such cash book was reproduced giving date-wise entry of cash receipt and payment from 3.4.2006 to 1.5.2006. This cash book was found during the course of survey at the premises of Lunkad Group. While framing the assessment in the case of Lunkad Group from where this cash book was impounded on 2.5.2006, the Assessing Officer has made addition only with respect to the cash book for one month and not for the period stated by ld. CIT DR. The addition was also made by the Assessing Officer of Lunkad Group in the hands of Lunkad Group in the assessment year 2007-08 with respect to the cash book for one month i.e. 3.4.2006 to 1.5.2006, the addition so made by Assessing Officer, was confirmed by the ld.CIT(A) and the order of CIT(A) was further confirmed by the Tribunal vide order dated 31st January, 2012. Thus, when in the case of Lunkad Group of companies itself, the concerned 9
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Assessing Officer of the Lunkad Group of companies had consciously added amount only on the basis of one month cash book, there is no reason to consider the cash book except for that period in the case of other assessee i.e. Mittal Group. Furthermore, it is not a mistake much less an apparent mistake in the order of the Tribunal, accordingly, there is no merit in the ground raised by the Revenue in its Misc. petition.
4. By referring to the ground raised at 2(b) of M.A., the ld.
CIT DR drew our attention to page no.32 of the Tribunal's order, sixth line from top, which reads as under :-
"We found that in various different bank accounts of Lunkad Group in which cash was deposited prior to issue of cheque to the beneficiaries."
As per ld. CIT DR, in view of this finding of the Tribunal, the modus operandi of Lunkad Group was accepted by Hon'ble Members, the addition should have been made for the whole block period, instead of restricting it to one month and inference should be drawn that Lunkad Group was engaged in providing accommodation entries.
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5. We have gone through the relevant page no.32 towards which our attention was invited by ld. CIT DR, wherein above wordings found place. We found that from page 31 of the Tribunal order, the Bench have recorded the submissions made by the ld. CIT DR during course of hearing before us.
At page 31, second line starts with the word "In view of these submissions, the ld. CIT DR highlighted that the assessee group was financially very sound earning _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _after accepting cash from it. He further submitted that even during search_ _ _ _ _ _ _ _ _ _ paid any tax. Our attention was also invited to unsecured loan _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ were never paid back to the Lunkad Group. He submitted that in case of Lunkad Group, entire share capital was found to be unexplained_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _for the assessment year 2001-
02. In view of these facts, he contended that Mittal Group is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ one of the beneficiaries. We found that in various different bank accounts of Lunkad Group _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ beneficiaries. In some instance, the cheques_ _ _ _ _ _ _ _ _ _to the beneficiaries. List of Bank account _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ cash is deposited.
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6. It is quite clear from the above that from page 31 onwards, the Tribunal has just narrated the contentions made by the ld. CIT DR during the course of hearing before us.
There is no observation of Bench in the above para, however due to typographical mistake at sixth line of page 32, as pointed out by ld. CIT DR "We" has been typed in place of "He". Since it is a typographical mistake apparent from record, we hereby rectify the same and direct that it should be read as "He found that in various different bank accounts of Lunkad Group in which cash was deposited prior to issue of cheques to the beneficiaries." After correction of this typographical mistake there is no reason to say that this was the finding of Tribunal on the basis of which it should be inferred that Tribunal has accepted the modus operandi. However, finding has been recorded by Tribunal in para 20 of page 51 of its order.
7. It was alleged by the Revenue in ground no. 2(c) of its Misc.petition that Hon'ble Members had held that genuineness 12
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of transaction was not established for assessment year 2007- 08, because of impounded papers, but it was established for other years, as according to the Hon'ble Members papers were not impounded for other years,( which is not correct as discussed in point (a) ). We have considered rival contentions. From the order of the Tribunal, we found that while dealing with the preliminary objection raised by the assessee to the effect that present appeals filed by Revenue are not maintainable in view of additions deleted by CIT(A) on the finding of fact that additions have been sustained in the hands of Lunkad Group, the Bench has expressed their views that because of the incriminating material found at Lunkad Group during the course of survey at Lunkad Group, the unsecured loans given during this period to the assessee group had become doubtful. When the ld. CIT(A) has deleted the addition in the hands of the assessee group on the plea that addition has already been made in the hands of Lunkad Group therefore no further addition is warranted in the hands of the assessee group which amounts to double addition, the Bench held that the ld. CIT(A) was not legally correct in taking this 13
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view, accordingly, reversed his order for such deletion and held that the Department was justified in filing appeals before the I.T.A.T. against these orders of CIT(A) and there is no merit in the contention of ld. Authorized Representative that these appeals are not maintainable in view of the finding of fact given by the ld.CIT(A) with regard to additions to be made in respective hands of different assessees. Furthermore, at para 20, page 52 of the order dated 30th Dec.,2011, while dealing with the issue on merit, after appreciating the entire facts of the case the Bench has categorically mentioned as follows :-
"We found that all the necessary documentary evidence to substantiate the loan transaction have been filed by the assessee, which indicated receipt and repayment of loan, payment of interest thereon and deduction of tax at source in respect of interest paid thereon."
8. Thus, the objection raised by the Revenue to the effect that it was an apparent mistake in the order of the Tribunal, has no merit.
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9. The Revenue has also alleged that when the Tribunal have confirmed the addition in the hands of Lunkad Group vide its order dated 31.01.2012, in respect of the unexplained share capital u/s 68 of the Income-tax Act, 1961, on the ground that they could not provide names and address of the share applicants, then why a contrary view has been taken in the case of Mittal Group, order dated 30th December, 2011.
10. We have considered rival contentions and gone through the order of Tribunal in case of Lunkad Group dated 31.1.2012, wherein addition was made on account of share capital received by it. However, it is clear from the order of Assessing Officer passed in the case of Mittal Group that no addition has been made by Assessing Officer in the assessment of Mittal Group with respect to share capital/share applications received from Lunkad Group. . Whatever share capital was received by Mittal Group from Lunkad Group has been accepted by Assessing Officer himself after discussing the identity etc. of Lunkad Group of companies. However, additions have been made in the case of Mittal Group on account of unsecured loans received from 15
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Lunkad Group. Thus, the allegation of revenue has no legs to stand that there is contradiction in the order of Mittal Group and Lunkad Group. In the case of Mittal Group addition was challenged in respect of unsecured loans and not share capital. It is clear from the order of the Tribunal that in the case of Mittal Group, the assessee has not only provided names and addresses of the cash creditors, but also loan confirmations and affidavits. and. Merely because the assessee could not produce physically cash creditor before the Assessing Officer that the additions were made u/s 68. The Tribunal observed that due to the dispute between the Department and Lunkad Group and the writ petition filed by the Lunkad Group in the M.P. High Court, the assessee could not produce the Lunkad Group in person before the Department. Under these circumstances and in the interest of justice and to give one more opportunity to the assessee for producing the loan creditor for confirming the contents of the confirmation and affidavit, the matter was restored by Tribunal to the file of Assessing Officer. Thus, neither there was any contradiction nor there was any mistake in the order 16
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of the Tribunal much less an apparent mistake as pointed out in the Misc. application filed by the Revenue, which could be rectified u/s 254(2).
11. In the result, all the Misc. Applications filed by the Revenue are dismissed.
12. Now we take up the MAs filed by the assessees. It is pertinent to mention here and clarify that the order of the Tribunal dated 30th December, 2011, was passed in group cases comprising of Narmada Extrusions Limited and other individuals/HUF/firms of the Mittal Group. Thus, the decisions arrived at by the Tribunal at para 20 is to be applied in case of all the assessees and not only to the case of Narmada Extrusions Limited.
13. During the course of hearing, the ld. Authorized Representative has invited our attention to the unsecured loans outstanding to Lunkad Group of companies, at para 11 on page 31. It was submitted that amount of outstanding loan was stated to be Rs. 4.82 crores in the assessment year 2010-
11, whereas actual figure of loan was Rs. 2,97,252/- as clarified by the assessee vide letter dated 24.10.2011. As it is 17
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an apparent mistake, we rectify the same and direct that unsecured loan outstanding to Lunkad Group is to be read as Rs. 2,97,252/- instead of Rs. 4.82 crores.
14. With regard to the ground no.2 of assessee's Misc.
Application, we clarify that the order was passed by the Tribunal in the case of bunch of appeals filed by the Revenue and cross objections by the assessees. Consolidated order was passed, wherein we first dealt with the Revenue's appeals for deleting the addition made on account of unsecured loans from Lunkad Group, which were deleted by the ld.CIT(A) on the plea of double addition, by stating that confirming addition in the hands of assessee in respect of loans received by it amount to double addition. After giving detailed finding and relying on various Hon'ble Supreme Court's decisions, we hold that ld. CIT(A) was not justified in deleting the addition in the hands of the assessee merely on the plea of double addition. However, the findings given by CIT(A) to the effect that Modus operandi in providing the entries to the beneficiaries has not been accepted by the Lunkad Group so far and that Lunkad Group have issued confirmatory letters to the various 18
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beneficiaries in support of having given genuine loan and share application money have not been disturbed by Tribunal but rather confirmed as per observations made in para 20 of the order. After reversing the order of CIT(A) on the ground of double addition, we have dealt on merits with respect to the additions so made by the Assessing Officer in respect of loans taken from Lunkad Group, and after giving detailed observations, recorded our finding and conclusion at page 51 para 20, according to which the addition made by the Assessing Officer, on the basis of incriminating documents found during survey at Lunkad Group for the period 1.4.2006 to 1.5.2006 was held to be justified. The Tribunal further observed that such addition should be made in the hands of assessee in assessment year 2007-08 with respect to the amount of cash found to be given by the assessee to the Lunkad Group as per the incriminating document i.e. cash book for the period 1.4.2006 to 2.5.2006 found at the premises of Lunkad Group during the course of survey, after giving due opportunity to the assessee for cross examination. The Tribunal also observed that mere presumptions without 19
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any material on record to the effect that even in respect of the earlier years the assessee might have given cash to the Lunkad Group for getting unsecured loan, is not justified. The Tribunal also observed that before making addition or disallowing the cash credit, on the plea of genuineness, the Department is required to bring on record some evidence to indicate that the assessee has paid cash in consideration of cheques so issued. Without any evidence, much less a cogent evidence, it is not legally justified to doubt the genuineness of loan transactions or make addition in the hands of the assessee company for which no material much less a cogent material was in the possession of the Department. After recording all these observations and findings, the Tribunal have, in the interest of justice and fair play, restored the grounds to the file of Assessing Officer for deciding the same in terms of our observations contained in para 20.
15. It is clear from the above that addition was held to be justified in the assessment year 2007-08 and that too to the extent of entries, if any, in the incriminating documents so found at Lunkad Group pertaining to the period 1.4.2006 to 20
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12.5.2006., after giving due opportunity of cross examination to the assessee. To make it more clear the Assessing Officer was directed to scrutinize the incriminating document/cash book so found at Lunkad Group during survey, and if name of any of present assessee appears in the said incriminating documents then after giving opportunity of cross examination, required additions are to be made in the hands of assessee.
For the other years, with regard to disallowance of loan transactions, the matter was restored to the file of Assessing Officer and the assessee was directed to produce loan creditors in person to substantiate the confirmations and affidavits so filed with regard to these transactions.
16. Thus, the order of the CIT(A) was reversed only on the plea of double addition, and on merits of the addition, the matter was restored to the file of Assessing Officer to decide in terms of our precise directions given in para 20.
17. We found that the ld. CIT(A) in his order has categorically observed that Lunkad Group have issued confirmatory letters to the various beneficiaries in support of having given genuine loans and share application money. The 21
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ld. CIT(A) also observed that modus operandi in providing entries to the beneficiaries have not been accepted by the Lunkad Group so far. Keeping in view these findings of CIT(A) which has not been disturbed, the matter with regard to unsecured loans in other assessment years have been restored to the file of Assessing Officer for deciding as per directions given in para 20.
18. One more typographical mistake has been pointed out at page no. 46, which reads as under :-
"This addition is mothering to do with genuineness of loan received by assessee from Lunkad Group."
19. As this is typographical mistake, the word "mothering" is to be read as "nothing".
20. Assessee had also alleged the observations given in para 21. We have gone through the same and found that in para 21, the Bench has directed to restrict the addition at peak of the loan. We clarify here that para 21 has been meant to restrict the addition at peak of the loan amount only in case while re-deciding the issue as per our directions given in para 20, the Assessing Officer again reach to the same conclusion. 22
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Para no.21 will come into operation only after the Assessing Officer re-decides the issue as per the directions given in para 20 of the order.
21. As name of "Narmada" was found place in the seized documents/cash book at Lunkad Group during the course of survey, we have directed that while redeciding the addition in assessment year 2007-08, the Assessing Officer should give opportunity to the assessee for cross-examination and only after satisfying that it is the same "Narmada Extrusions Limited" the decision is to be taken.
22. The Assessing Officer is at liberty to verify if the name of other individuals, HUFs/Firms of Lunkad Group find place in the seized documents/cash book found during survey at Lunkad Group. The addition is to be made in assessment year 2007-08 in the respective hands after providing due opportunity of cross examination to the assessee.
23. In the Misc. petitions filed by the assessee, it was also alleged that since no incriminating material was found by the Department from assessee's premises either during the course of search or post search inquiry, no addition should have been 23
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made in the hands of the assessee in view of the various judgments cited in the Misc. petition. In this regard, we found that a detailed finding has been recorded by the Tribunal at page 51 para 20 with regard to the quantum and manner of additions to be made in the assessment year 2007-08, keeping in view of the cash book found during course of survey at Lunkad Group. There is no mistake in the order of the Tribunal much less an apparent mistake. Thus, this ground of assessee's M. A. is dismissed.
24. In ground nos. 2.4.1 and 2.4.2 of miscellaneous applications, it was alleged by the assessee that in para 15 at pages 44 and 45, the Bench has discussed and relied on the decisions of the Hon'ble Supreme Court reported in 218 ITR 239 and 88 ITR 323 and also the decision of I.T.A.T., Special Bench reported in 111 ITJ 346, for reversing the order of the CIT(A) on the plea of double addition. However, these decisions were neither quoted by the assessee nor by the department.
Accordingly, it was urged to ignore these decisions and to again reconsider the decision of the Tribunal reversing the order of the CIT(A).
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25. We have considered the rival contentions and find that the decision of the CIT(A) in deleting the addition in the hands of the assessee on the plea that the addition has already been confirmed in the hands of Lunkad Group, thereby making addition again in the hands of the assessee amounts to double addition, was reversed by Tribunal. While reversing the decision of CIT(A), the Tribunal has considered two decisions of the Supreme Court and a decision of I.T.A.T. Special Bench which support the proposition that the addition should be made in the hands of right person not-with-standing the fact that the income has already been offered and assessed in the hands of wrong person. Even though these decisions were neither cited by the assessee nor by the department during the course of hearing before us but the same have been taken into consideration by the Bench while deciding the issue. As per our considered view, while deciding the appeal, the Tribunal is not only empowered but also duty bound to consider the judicial pronouncements on the issue by any High Court or Supreme Court or/and co-ordinate bench. The judicial pronouncement of Hon'ble Supreme Court is law of land. 25
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Merely because these decisions were not cited either by the Ld. Counsel for the assessee or by the learned DR, the Bench cannot be precluded from the right to apply the proposition laid down by the Supreme Court in their decisions which supports the issue under consideration of Tribunal. We, therefore, do not find any merit in the ground taken by assessee in its M. A. for reconsidering the decision of the Tribunal reversing the order of the CIT(A) by relying on the decision of Supreme Court and I.T.A.T. Special Bench.
26. In the result, ground raised by assessee at serial nos. 2.4.1 and 2.4.2 of miscellaneous applications are dismissed.
27. In ground no. 2.7.1 the assessee has alleged that in para 16 at page 46 of the order in last four lines and at page 47 the Hon'ble Bench has observed -
"As we have reversed the order of CIT(A) with respect to deletion of addition made u/s 68, ..................on such accommodation entry"
28. It was further alleged that in para 8 at page 47 of the order, the Hon'ble Bench has further observed - 26
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"17. In view of the above discussion, we reverse the order of the CIT(A) and allow all the appeals of the revenue in its favour."
29. In view of the above, it was submitted by the Ld. Counsel for the assessee that the finding on merits of the case was given by the Tribunal in para 20 whereas in para 17 the Tribunal has given its decision in respect of revenue's appeal in deleting the addition by the CIT(A) on account of double addition. Thus, the observations made by the Tribunal in the last four lines at page 46 as reproduced above, deserves to be expunged.
30. We have considered the rival contentions and find from the order of the Tribunal that the issue raised by the Revenue with regard to deletion of addition by the CIT(A) on the plea of double addition has been dealt with by the Tribunal in para 15, the conclusion of which was given in para 17. However, on merits, the issue has been dealt with by the Tribunal in para 20 and the matter was restored to the file of the Assessing Officer for deciding as per the directions given in para 20.
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31. In view of separate conclusions given on merits of addition by Tribunal at para 20, the last four lines of page 46 appear to be mistake apparent from record. We, therefore, expunge last four lines of page 46 as reproduced above.
32. In the result, the decision on the revenue's appeal is to be read as "In the result, the order of CIT(A) is reversed for deleting the addition on the ground of double additions."
33. In ground nos. 2.12.1 and 2.12.2 of miscellaneous application, it was alleged by the assessee that vide order dated 31.1.2012 in the case of Lunkad group, the Bench has maintained the order of the CIT(A), therefore, the appeal of the instant assessee i.e. Mittal Group filed by the revenue should also be maintained in toto.
34. We have considered the rival contentions and find that in the case of Lunkad group vide order dated 31.1.2012, we have upheld the order of the CIT(A) after considering the ground raised by the assessee. Since in the case of Lunkad group, the assessee was unable to produce names, addresses, etc. of share applicants, the additions were made by Assessing Officer in their hands which was confirmed by CIT(A) and 28
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finally by the Tribunal vide order dated 31.1.2012 whereas in the case of the present assessee (Mittal group), the addition was on account of unsecured loan and not share capital and which has been decided by Tribunal on its own facts as per the findings given in para 19 & 20.. We do not find any reason to apply the conclusions drawn in the case of Lunkad Group to the assessee Mittal Group, wherein the facts are entirely different. Accordingly, there is no merit in the ground nos. 2.12.1 and 2.12.2 of the assessee's miscellaneous application.
The same are accordingly dismissed.
35. In the result, the Misc. Applications filed by the assessee are allowed in part in terms indicated hereinabove.
This order has been pronounced in the open court on 1st May , 2012.
(JOGINDER SINGH) ( R.C.SHARMA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated :1st May, 2012.
CPU*
23.15
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