Income Tax Appellate Tribunal - AmritsarRishi Grover,, Amritsar. vs Department Of Income Tax on 1 June, 2012IN THE INCOME TAX APPELLATE TRIBUNAL
                 AMRITSAR BENCH; AMRITSAR.


            BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER
            AND SH. B.P.JAIN, ACCOUNTANT MEMBER

                        M.A. Nos. 55 to 59(Asr)/2010
                  (Arising out of I.T.A. Nos. 198 to 202 (Asr)/2006)
                        Assessment years:1998-99 to 2002-03
                               PAN :


The Asstt. Commr. of Income Tax Vs. Sh. Rishi Grover,
Circle IV, Amritsar.                Prop. M/s. Vishnu Jewellers,
                                    Amritsar.
(Appellant)                       (Respondent)


            Appellant by:Sh. Tarsem Lal, DR
            Respondent by:Sh. Rohit Jain & Sh.P.N.Arora, Advocates

                        Date of hearing:01/06/2012
                        Date of pronouncement:26/06/2012

                              ORDERPER BENCH ;These five Miscellaneous Applications filed by the Revenue under

section 254(2) arise from the consolidated order of Tribunal, dated 26th

June, 2009 passed in ITA Nos. 198 to 202(Asr)/2006 for the assessment

years 1998-99 to 2002-03.22.    The Revenue has filed Miscellaneous Applications, which for the sake

of clarity is reproduced as under:"It is submitted that the Hon'ble ITAT's combined order dated
      26.06.2009 passed in respect of ITA Nos. 198 to 202(Asr)/2006 dated
      26.06.2009 for the assessment years 1998-99 to 2002-2003 in the
      aforementioned appeal contains (i) factual errors and (ii) errors on
      account on non-consideration of the arguments and evidence led by
      the Department. The errors on account of facts are enumerated at
      paras 'A" to 'O' and errors on account of non-consideration of
      arguments and evidence led by the department are enumerated at
      paras 'P' to 'S' below. In addition, it has been found that the DR's
      written arguments on 33 points were not considered at all. The
      written arguments on 33 points have been enumerated from page 9 to
      57 of this M.A.

             The above referred factual errors from para 'A" to 'O' are
      dilated as below:(A)    At para 53, the Hon'ble Bench has remarked that the AO
             himself in the reasons recorded for the A.Y. 1996-97 leads to
             primary conclusion that even as per the Department the
             appellant was engaged in jewellery business upto the
             assessment 1997-98. This attribution to the Department is
             wrong and misplaced as the reasons recorded are never the
             findings of the AO but only a premise . A premise can never be
             a substitute for a factual truth which had been established in the
             order of the AO that the assessee was not engaged in the
             business of sale and purchase of jewellery. Therefore, it is
             mistake to allow an appeal on the basis of mere premise and
             this mistake falls within the ambit of section 254(2) of the
             Income tax Act, 1961.(B)    At para 54, the Hon'ble Bench has squarely gone by the
             statement of Sh. Jatinder Kumar on 22.01.2004 and it has
             totally ignored his statement recorded on 06.01.2003 as brought
             to the notice of the Hon'ble Bench in the paper book filed by
             the Department as S.No.23. Therefore, a mistake has crept in
             this para due to the non-consideration of the full facts which
             deserves to be rectified u/s 254(2) of the Act.3(C)   At para 55, the Hon'ble Bench has recorded a finding that
      various notices, intimations issued by the Income-tax
      Department have actually been served at the said shop of the
      appellant. It has further been recorded 'though the DR in his
      submissions argued such notices might have been received by
      Sh. Rishi Grover personally but the correspondences placed on
      record do indicate that such correspondences were served on
      the assessee". It may be mentioned here that the department
      had produced dispatch register before the Hon'ble Bench
      whereby it had bee shown that no notice, intimatiaons were sent
      by post as claimed by the assessee. The Hon'ble Bench has not
      brought on record this fact of the DRs showing the dispatch
      register and as such it amounts to committing a mistake
      rectifiable u/s 254(2) of the Act.(D)   At paras 56, 57 & 58, the Hon'ble Bench has gone by the fact
      that the Sales-tax Authorities have accepted the claim of the
      assessee that he is engaged in the sale and purchase of jeellery.The Hon'ble Bench has not considered the argument of the DR
      that the assessee had only created a façade of genuineness of
      being a purchaser and seller of jewellery. The Hon'ble Bench
      has largely gone by the statement of Sh. Rishi Grover recorded
      by the Sales-tax Inspector on 09.01.1998. In the statement, it
      has been stated that on the right hand side shop No.27 and on
      the left hand side Shop No.25 was situated. The Hon'ble Bench
      did not contrast it with the statement of Sh. Jatinder Anand
      dated 06.01.2003 therein it had been stated by him that there
      were only three shops at Ground Floor and three shops at First
      Floor and how could shop No.26 be in the occupation of Sh.
      Rishi Grover. This mistake has also crept in the order of the
      Tribunal due to non-consideration of statement of Sh. Jatinder
      Anand dated 06.01.2003 and various other facts. Therefore, this
      mistake also needs to be rectified by taking the facts into
      consideration in all their totality.(E)   At para 58 to 64, the Hon'ble Bench has rejected the DR's
      claim that the three jewelers, namely, M/s. Hukan Chand Sushil
      Kumar, M/s. Kapoor Jewellers and M/s. Vinod Jewellers had
      admitted having received accommodation entries from the
      assessee. The Hon'ble Bench in support of its holding has
      reproduced assessee's application u/s 144A at page 46 of its4order and missed to reproduce and also take cognizance of the
      para 7 of the said application which reads as under:Without prejudice, it is humbly submitted that our
      case was fully comparable with the case of M/s. Vinod
      Jewellers, Pathankot. In that case, the assessments have
      been made in the same Circle-2 at Amritsar and he has not
      been treated as beneficiary regarding jewellery purchased
      from others and sold to M/s. Vishnu jewelers. Our firm had
      also not taken any other benefit, except the profit already
      declared."It may be mentioned that that identical para was
      incorporated in the application u/s 144A in the case of M/s.
      Kapoor Jewellery House (Departmental Paper book pages 373
      to 390).It may be mentioned here it was pointed out to the
      Hon'ble Bench that the AO in the case of Sh. Vinod Kumar
      Prop. M/s. Vishnu Jewellers, Pathankot had held that the
      assessee had acted as a conduit for getting accommodation
      entries from M/s. Rishi Grover and had only received nominal
      profit therefrom. M/s. Hukan Chand Sushil Chand and M/s.
      Kapoor Jewellers, Amritsar had in para 7 of their applications
      u/s 144A submitted that M/s. Vinod Jewellers, Pathankot has
      not been treated as beneficiary regarding jewellery purchased
      from others and sold to M/s. Vishnu Jewellers. It has further
      been affirmed by both these concerns that they had not taken
      any other benefit except the profit already declared. Thus, it is
      clear that these two concerns had admitted that the too had
      acted as a conduit for getting accommodation entries from M/s.
      Rishi Grover for the beneficiaries.Clearly, non-consideration of this vital para 7 of the
      applications made u/s 144A has resulted in the mistake which
      falls within the ambit of section 254(2) of the Act.(F)   At para 64, the Hon'ble Bench has held that Sh. Vinod Kumar
      in his statement had repeatedly stated that the tranaction of sale
      of diamond jewellery to M/s. Vishnu Jewellers was done by5taking the said concern as the concern of M/s. Hukam Chand
      Sushil Kumar. The Tribunal has largely gone by this false
      statement of Sh. Vinod Kumar and has not taken cognizance of
      the fact that the AO had held him to be only a conduit for
      getting accommodation entries from M/s. Vishnu Jewelers
      through the agency of M/s. Hukan Chand Sushil Kumar,
      Amritsar. This fact has become final and it is no wonder that
      M/s. Hukan Chand Sushil Kumar and M/s. Kapoor Jewellery
      House, Amritsar had also demanded similar treatment like that
      given to Sh. Vinod Kumar by the AO. This had left no room
      with the Hon'ble Tribunal to hold that Sh. Vinod Kumar's
      statement was true and that the assessee was engaged in the
      jewellery business.(G)   At para 66, the Hon'ble Bench has observed that no seller has
      denied having sold jewellery to the assessee. The Hon'ble
      Bench did not consider DR's argument that no seller would
      deny sale of jewellery to the assessee because he is the
      beneficiary of the accommodation entries provided by the
      assessee. Thus, it again amounts to a mistake. Further, it was
      pointed out to the Hon'ble Bench that the Hon'ble Mumbai
      Bench of the Tribunal's order is not a good order as whether or
      not M/s. Vishnu Jewellers is engaged in genuine jewellery
      business or is a accommodation entries provider can only be
      ascertained from the case of M/s. Vishnu Jewellers and not
      from the case of a beneficiary. This argument of the DR has
      also not been considered by the Hon'ble Bench and it constitute
      a mistake apparent rectifiable u/s 254(2).(H)   At paras 67 to 70, the Hon'ble Bench has committed a grevious
      mistake in simply going by the false assertion of the assessee
      that he is engaged in the business of jewellery. The Hon'ble
      Bench has quoted several statements of the assessee. Had the
      Tribunal analysed the said statements of the assessee, it would
      have easily come to the conclusion that the assessee has only
      been lying. The Hon'ble Tribunal's failure to ascertain the truth
      from these statements again amount to mistake. It may be
      mentioned here that it may amount to perverse order if an
      erroneous view is formed but if the relevant contents of the
      statements are not considered, it amounts to mistake apparent
      from record which is rectifiable under section 254(2) of the Act.A close perusal of the versions of the statements of the assessee6reveals inherent contradiction which clearly show that the
      assessee is only lying. In his statement recorded on 13.03.2002,
      he stated that he started his business in 1996 April (page 50 of
      the order) and in his statement recorded on 11.11.2003 (page 52
      of the order) the assessee states that he started his business in
      1993-94. There are lot many other contradiction in the
      statements of Sh. Rishi Grover which lead one to the
      inescapable conclusion that he is not engaged in jewellery
      business. The Hon'ble Tribunal's not considering those
      statements in their totality is a mistake which falls within the
      ambit of section 254(2) of the Act.(I)   At paras 71 to 75, the Hon'ble Bench has recorded a finding
      that the confessional statements of the assessee dated
      16.01.2003 and 17.1.2003 were under substantial threat and
      coercion. While recording this finding, it has been seen that the
      Tribunal has missed to deal with DR's arguments that had the
      assessee been really humiliated and paraded in bazaar, he would
      not have gone to the Police Station on 7.1.2003 for filing an
      FIT stating that he was moving in the area of Bus Stand,
      Amritsar and if he had really been humiliated and paraded the
      previous day, he ought to have lodged a complaint with the
      Police of the such misbehaviour or to the higher authorities and
      instead he was busy in managing his affairs to come clean out
      of the ruckus he had created. No where this argument and copy
      of the FIT filed by the department in the PB at page 238 have
      been considered by the Bench which renders its order
      rectifiable u/s 254(2) of the Act. The Hon'ble Bench further
      failure to take cognizance of the fact that the confessional
      statements could not be under any pressure as the same were
      recorded in the presence of Sh. Rajan Kumar CA counsel for
      the assessee. This fact was brought to the notice of the Bench,
      but it has not been considered and thus it renders the order
      rectifiable u/s 254(2) of the Act.(J)   At paras 76 to 80, the Hon'ble Bench after quoting three
      judgments of the Hon'ble Supreme Court has recorded a
      finding: Thus, on a careful reading of the three decisions of the
      Hon'ble Supreme Court referred before us, we are of the
      considered view that the legal position that emrges is that a
      retracted statement, though binds the assessee, once retracted
      cannot be sole basis for making the assessment. The mistake7which the Tribunal has committed is that it has allowed the
      assessee to come out of the "bind" simply by stating that he
      was harassed and humiliated when factual matrix is totally to
      the contrary which he has not been considered by the Tribunal.
      The Tribunal has not mentioned even a single syllable of the
      DR's arguments on this point.(K)   At paras 81 to 87, the Hon'ble Bench has committed a mistake
      in placing reliance on the judgment of the Hon'ble Supreme
      Court in the case of KTM M. Mohd vs. UOI 197 ITR 196 as the
      statements were recorded by the Deputy Director of Income
      (Investigation) who is a gazetted office.The Hon'ble Bench
      further committed an error when in view of the decision of
      Delhi Bench of the Tribunal in the case ofAsstt. CIT v. VKL
      Jolly & Sons(supra) Amritsar Bench of the Tribunal in the case
      of Pyramid Software & Technologies and Mumbai Bench of the
      Tribunal in the case of Mukind V Kapadia (supra), it held that
      the statements recorded by DDIT(Inv.) were invalid. He was
      gazetted officer and thus competent to record the statements.The Hon'ble Tribunal further erred in not dealing with
      the argument of the DR that the words "referred to in sub-s(1)
      of S.132 before he takes action u/s clause (i) to (v) of that
      sub-section in section 131(1A) do not qualify the words-
      Director General, Director, Joint Director, Asstt. Director,
      Dy. Director but only qualify the words 'the authorized
      officer" which precedes them."Thus, the decision of the Hon'ble Madhya Pradesh High
      Court in the case ofClassice Builders & Developers vs. UOIreported at 251 ITR 492 was clearly applicable.

(L)   At para 88, the Hon'ble Bench has considered the statements of
      various persons relied upon by the department to prove that the
      assessee was not engaged in the purchase of sale of jewellery.
      The Tribunal has committed mistakes here also which are
      dilated as under:(a)   It has committed a mistake by not considering the
            statement of Sh. Harjinder Singh it is totality. It has only
            gone by the assessee's assertion that he had left business8in 2001 and Sh. Harjinder Singh purchased the property
      in May,2001. All other facts stated by Sh. Harjinder
      Singh have been ignored by the Hon'ble Bench. It has
      further committed an error that the statement recorded by
      DDIT was not valid which is incorrect as discussed
      above.(b)   The Tribunal has committed a mistake by not considering
      the statement dated 6.1.2003 of Sh. Jatinder Kumar in its
      totality and not appreciated that how could Sh. Jatinder
      Kumar reconcile his statement dated 22.1.2004 to his
      statement dated 6.1.2003?(c)   The Tribunal has committed an error by not elaborating
      as to how it has reached the conclusion that statements do
      not read to the conclusion that the assessee was not at all
      engaged in jewellery business". A non-speaking order is
      an order which falls within the corners ofsection 254(2)of the Income-tax Act, 1961.(d)   The Tribunal has committed an error in this para also as
      it has passed a non-speaking order.(e)   The Tribunal has committed an error in not appreciating
      that the filing of deposit vouchers in the bank premises
      for Sh. Rishi Grover was for helping him do the business
      of accommodation entries.(f)   The Tribunal committed a mistake by allowing Sh.Rakesh Kumar go with his retraction statement without
      binding      him with his previous statement dated
      22.1.2003.(g)   The Tribunal has committed a monumental mistake in
      recording that both the persons namely Sh. Yudhvir and
      Sh. Sushil Kumar Sareen have taken contrary stands in
      their statements.     This is at variance with their
      observation at other places where the witnesses
      subsequently retracted from their earlier statement and
      spoke in favour of the assessee subsequently. The
      Tribunal only mentioned but did not consider the DR's
      argument that the assessee had refused to cross-examine
      the two brokers and thus it proves that the assessee was
      engaged in any such business and has, thus, committed a
      mistake.9(M)   At page 92, the Hon'ble Bench has not dealt with the arguments
      of the DR that it was not sheer coincidence that both Sh. Rishi
      Grover and Sh. Raj Kumar of M/s. Nayyar Jewellers should
      have identical facts. Without considering the said arguments as
      augmented with the documentary evidence from pages 59 to
      109 of the departmental paper book, the Tribunal's deciding
      the issue against the revenue, is clearly a mistake which falls
      within the purview ofsection 254(2)of the Act.
(N)   At para 97 to 102, the Tribunal has rejected the claim of the DR
      that the letters dated 13.2.2006 and 22.2.2006 were
      planted/inserted in the file of the Ld. CIT(A). The Tribunal has
      not dealt with the arguments of the DR advanced in this regard.
      The Ld. DR argued that both the documents were neither
      finding any mentioned in the order sheets maintained in the
      office of the CIT(A) and nor these documents contained the
      signatures of the worthy CIT(A) and nor these documents
      contained the signatures of the CIT(A) put as a mark of having
      seen the said documents. The Tribunal did not appreciate that if
      these documents were already there on the record before the
      CIT(A), why did the assessee seek to file the same before the
      Hon'ble Bench by way of filing additional evidence. This
      clearly shows that the Hon'ble Tribunal has committed an error
      by not considering the arguments of the DR and deciding the
      same.(O)   As per paras 104 to 107 , the Hon'ble Tribunal has erred in
      holding that the decision of the Special Bench of the Delhi
      Bench of the Tribunal in the case of Sh. Manoj Aggarwal vs.
      DCIT, New Delhi reported at 113 ITD 377 is applicable to the
      case of the assessee. It has observed that the modus operandi of
      the said assessee were similar to the operations of the appellant.
      One fundamental difference, inter alia, in the said case and that
      of the assessee which the DR had brought to the otice of the
      Hon'ble Bench was that in the said case, the Special Bench had
      gone largely by the fact that the assessee had not made any
      confessional statement regarding jewellery business and it was
      only in respect of share business. The Hon'ble Tribunal has
      committed a mistake in not considering this argument of the
      department before applying the ratio of the Special Bench's
      case.10The arguments/evidence which has not been considered at
      all by the Hon'ble Bench in its order are enumerated at
      para 'P' to "S" below:(P)   The Tribunal has not considered at all the irrefutable evidence
      in the form of form No.49A,(PAN Application form) dated
      15.03.2001 wherein he has ticked 'Salaries" as he source of his
      income. This is a verified application. It was filed before the
      Hon'ble at pages 53 to 56 of the paper book. In this
      application, Sh. Rishi Grover states that for the accounting year
      ending 31.3.2001 his income was below the taxable limit and it
      was from salary. It was argued that this PAN application form
      clearly proves that the assessee was ot egaged in any jewellery
      business. It also wholly undermines the statement of the
      assessee taken as sacrosanct by the Hon'ble at pages 50 of the
      order, where in an answer to Question No.2, the assessee had
      stated that his business was started in 1996 April and was
      discontinued in the beginning of the year 2001 whereas in this
      application form he is making, self verified statement that
      during the previous year ending on 31.3.2001, he was having
      salary as his source of income.(Q)   The Hon'ble Bench has not considered documents at page
      No.236 of the departmental paper book which is a letter sent by
      Sh. Kapil Kumar,CA counsel for the assessee which blows to
      the smithereens the whole cock and bull story of coercion and
      pressure brought upon the assessee and wrongly accepted by
      the Tribunal. In this letter, Sh. Kapil Kumar informs that Sh.
      Rishi Grover suffered acute chest pain on 6.1.2003 at 7 PM and
      had been hospitalized and was under medical treatment at
      Medical Unit 1, Guru Nanak Dev Hospital, Amritsar and
      further requested that he may be permitted to attend the office
      till he relieve from Hospital. Thereafter, he attends the office on
      16.1.2003 and then on 17.1.2003 on his own volition. The
      Tribunal did not consider the DR's argument that he had really
      been coereced on 16.1.2003 then why did he come to office
      again on 17.1.2003. Non-consideration of these vital
      arguments/evidence constitute a mistake within the ambit ofsection 254(2)of the Act.(R)   It was argued before the Hon'ble Bench that there has been no
      genuine purchase purchase and sale of jewellery as the11jewellery had been brought and sold at varying rates which was
              inconsistent with the prevailing market rates. A copy of Market
              rates for Gold & Silver was filed at pages 399 to 400 of the
              departmental paper book.(S)     It had been argued that after the admission of additional
              grounds of the assessee, the proper course for the Hon'ble
              Tribunal was to refer the matter back to the file of the ld.
              CIT(A) for adjudicating the additional ground and that the
              Hon'ble Bench cannot sit in judgment over an additional
              ground on facts. This ground of the department has not been
              considered at all and is a glaring mistake of law. The whole
              order on this ground alone needs to be recalled."3.    Besides the above mistakes pointed out by the Revenue, there were

mistakes as pointed out by the Ld. DR that arguments filed in writing

running into 33 pages, which have not been considered at all by the ITAT.

Though the Ld. DCIT(DR), Mr. Tarsem Lal has not argued at all these 33

points, at the same time, we will deal with the said 33 points which are part

of the written submissions of the Revenue at pages 9 to 57 of the

Miscellaneous Application of the Revenue. From the reading of the said

written submissions at pages 9 to 57, the department's contentions with

regard to the said 33 points were as under:Point         Department's Contention1.            In this para, the Revenue's arguments are that the
                    appellant merely created records in the form of Return of
                    income, tax payments etc. In this regard, reference has
                    been made to PAN application form filed by the
                    appellant, returns of income and the financial statements
                    filed alongwith the return of income.122.    In this para, it is argued that the rent agreement filed by
      the appellant was also creation of record.3.    In this para, the Revenue has doubted the existence of the
      shop of the appellant on the basis of the shop number
      mentioned in the Sales Tax Registration Certificate.4.    The Department has referred to certain bills of the State
      Bank of India as having not been signed by the appellant
      to doubt that the appellant was not actual dealer in gold.5.    The Department has relied upon the description of
      jewellery contained in bills issued by M/s. Vinod
      Jewellers, assessment order of M/s. Vinod Jewellers,
      M/s. Hukam Chand Sushil Kumar and M/s. Kapoor
      Jewellers.6.    There was no threat of coercion employed by the DDIT
      while recording the statement of the appellant, which is
      evident from letter dated 8th June, 2003 filed by Mr.
      Kapil Kumar and Company requesting for persons after
      few days.7&9   The statements of Sh. Yudhvir and Sh. Sushil Kumar
      have been relied upon.8.    Statements of Sanjay Kumar have been relied upon.
10    Statements of Sanjay Grover brother of the appellant
      have been relied upon.11.   Statements of Sh. Jatinder Anand Vikas Seth and Sh.Ashok Kumar have been relied upon.12.   Reference has been made to the transactions with M/s.Baba Naga Rice Mills.13.   Reference is made to the complaint in the form of
      resolution filed by Amritsar jewelers Association to the
      higher authorities alleging high handedness by the
      Income Tax Department. Reference is also made to13subsequent retraction by Sh. Sudhir Kapoor and Satish
           Kapoor.14.        Reference has been made to bank statement of the
           appellant wherein cash has been deposited.15 & 16    Reference has again been made to bullion trade with
           State Bank of India. Further reference has been made to
           statement of various persons and bill books having been
           found from the office of M/s. Umat & Company.17.        It is alleged that certain documents have been
           inserted/planted in the file of the CIT(A).18,19 & 20 Statements of the appellant have been referred to and
           been relied upon.21.        Statements of Sh. Hukan Rai and Sh. Vijay Gupta have
           been referred to.22.        Statements of Sh. Vijay Gupta, Sh. Kuljas Rai and others
           have been referred to. Reference has also been made to
           certain alleged discrepancies in the bill issued by the
           appellant.23.        Statement of Sh. Kapil Kumar has been referred to
           wherein he has denied his participation in the scam.24.        Books of account impounded by DDIT wherein bullion
           trade was not incorporated has been referred to.25.        Reference is made to FIR regarding loss of books of
           accounts.26 & 27    Reference has been made to the dropping of proceedings
           initiatedu/s 148of the Act for the assessment years
           1996-97 and 1997-98 and inferences to be drawn
           therefrom. Reference is also made to audit report for
           assessment year 1998-99.1428.          Reference is made to the retraction filed by the appellant
                   before the income tax authorities.29.          Reference is made to dropping of proceedings by the
                   Department for certain assessment years.30.           Reference is made to inadvertent error in recording name
                   of mother of the appellant in the affidavit filed before the
                   Income tax authorities.31.          Reference is again made to delivery of correspondences
                   at the address of the appellant.32.          In this point, the reply to the submissions filed on behalf
                   of the appellant before the Hon'ble Tribunal has been
                   reproduced.33.          The decision of the Special Bench in the case of Sh.Vinod Agarwal is sought to be distinguished."4.    The Ld. DCIT(DR), Sh. Tarsem Lal, however, prayed on the date of

hearing to add one more mistake in the form of revised miscellaneous

application, which reads as under:"It is submitted that the undersigned had filed the
      aforementioned Miscellaneous Application. It is submitted the
      aforesaid MA may kindly be treated as revised with the inclusion of
      the following mistake committed by the Hon'ble Tribunal:It is necessary for the Tribunal to examine the identity of the
      jewellery declared under the VDIS and the jewellery sold in the
      transaction in question.In the absence of such a finding, the Hon'ble
      Punjab & Haryana High Court has in the case ofCIT vs. Tejinder
      Singh HUFreported at 239 CTR 342 ( 197 Taxman 325) held that
      without such finding the Tribunal's finding cannot be sustained. Thus,
      it is clear that the Tribunal's not giving its finding whether Sh. Rishi
      Grover had purchased the same jewellery which several sellers had
      declared under the VDIS and Sh. Rishi Grover had sold the same,15constitutes a mistake in view of the judgment of Hon'ble
      Jurisdictional High Court (supra).In view of the above, it is submitted that the MA already been
      filed by the Department may kindly be treated as revised to the extent
      of inclusion of the aforesaid mistake in the said MA"5.    Mr. Tarsem Lal, the ld DCIT (DR) with regard to Revenue's

application from pages 1 to 9 in points 'A' to 'S', invited our attention to

various pages/paras of the order of the ITAT dated 26.06.2009 i.e.

pages/paras 38,39,54, 55,56, 57, 58, 62, 64, 66, 67 to 70, 71 to 75, 76 to 80,

81 to 87, 85, 88, 92, 97 to 102, 104 to 107 with reference to the mistakes as

pointed out in its application at pages 1 to 9 in point 'A' to 'S' and argued

that there are factual errors, errors on account of non-consideration of the

arguments and evidence led by the department and therefore, whole order of

the Tribunal should be recalled.5.1   As regards the revised mistake filed through revised miscellaneous

application mentioned hereinabove, the Ld. DR relied upon the decision of

the Hon'ble Punjab & Haryana High Court in the case ofCIT vs. Tejinder

Singh, HUF, reported in 239 CTR 342 (supra) and argued that it is necessary

for the Tribunal to examine the identity of the jewellery declared under the

VDIS and the jewellery sold in the transaction in question.The ITAT has

not given its finding whether the assessee Shri Rishi Grover had purchased

the same jewellery which several sellers had declared under the VDIS and16Sh. Rishi Grover had sold the same , constitutes a mistake in view of the

judgment of Hon'ble Punjab & Haryana High Court in the case ofCIT vs.

Tejinder Singh, HUF(supra).6.    The Ld. counsels for the assessee, Sh. Rohit Jain, Advocate and Sh.

P.N. Arora, Advocate, has replied through written submissions on each and

every para of the miscellaneous application of the Revenue at pages 1 to 9 in

points 'A" to 'S' as under:Point        Assessee's reply

      A            In para 53, the Tribunal has considered variouscumulative circumstances , including the reasons
                   recorded by the AO for reopening assessment for the
                   assessment years 1996-97 and 1997-98 and also the fact
                   that the proceedings for the said assessment years were
                   subsequently dropped to come to a conclusion that even
                   as per the Department the appellant was engaged in
                   jwellery business upto assessment year 1997-98. This
                   was based on the fact that returns of the appellant for the
                   assessment years 1996-97 and 1997-98 stood finally
                   accepted by the revenue.There is, thus, no error in the order of the Tribunal. The
                   Hon'ble Tribunal has not attributed anything to the
                   Revenue, rather had come to a conclusion on the basis of
                   the appreciation of facts narrated in the reasons recorded
                   by the AO and also after taking into consideration the
                   subsequent events.B.           The contention of the Revenue that the Tribunal has
                   ignored statement of Sh. Jatinder Kumar recorded on 6th
                   January, 2003 is factually incorrect.In para 54, the Tribunal has reproduced replies given in
                   response to question Nos. 3 & 4. In question No.4, Sh.
                   Anand was specifically confronted on his statement dated
                   6.1.2003.17Further, statement dated 6.1.2003 has been specifically
    been considered by the Tribunal in para 88(b). This fact
    has not been pointed out by the department before the
    Tribunal in the miscellaneous application.

    The allegation of the Revenue that Hon'ble Bench has
    not considered statement dated 6.1.2003 is thus factually
    incorrect.C   In para 55, the Hon'ble Bench has taken into
    consideration the entire facts and the arguments advanced
    by both the sides.The Hon'ble Tribunal has taken into consideration
    notices/intimation placed in the paper book and also the
    contention of the Revenue that such notices may have
    been received by the appellant personally.After taking into consideration the entire material, the
    Tribunal had come to definite conclusion that the
    appellant had actually taken the shop on rent. Such
    conclusion has been arrived at on the basis of entirely of
    the facts, including statements of various persons referred
    in the earlier para.The allegation of the Revenue that the Tribunal has not
    considered the fact that dispatch register was produced
    is, thus, grossly misplaced, particularly when the
    argument addressed by the Revenue on the basis of the
    said dispatch register was very much considered by the
    Tribunal.D   The contention of the Revenue is, in our respectful
    submission, nothing short of finding fault in the final
    conclusion arrived at by the Tribunal after considering
    various documentary evidences placed on record.

    The Revenue is, in fact, trying to ditate/direct the
    decision of the Tribunal by suggesting the conclusion
    that the Tribunal ought to have come to rather tha18coming to the conclusion/findings given in paras 56, 57
    & 58 of the order.The Hon'ble Tribunal, it is submitted has taken into
    consideration the entirety of facts, including but no
    limited to statement of the landlord, facts relating to
    registration of the appellant's jewellery business with he
    Sales Tax Authorities, etc. to reject the argument of the
    Revenue that the assessee had created a façade of
    genuineness.The allegation that the Tribunal has not considered
    statement of Sh. Jatinder Anand dated 6.1.2003, as
    mentioned above, is factually incorrect since the said
    statement has in fact been considered in paras 54 to 88(b)
    of the Tribunal.The appellant, therefore, it is respectfully submitted, fails
    to appreciate as to how and on what basis the department
    could even allege non-consideration of material placed
    on record.The allegation of the Revenue shows nothing but
    disrespect/contempt of the order of the Tribunal, which is
    clearly not permissible in law.The Department has also clearly failed to appreciate the
    scope and ambit of the proceedingsu/s 254(2)of the Act.

E   The allegations of the Revenue are factually incorrect
    and a grossly misconceived.In paras 58 to 64 of the order, the Tribunal has
    elaborately considered not only findings given by the AO
    in respective assessment orders of the three jewelers, but
    also taken into consideration their respective statements
    and also the applications filedu/s 144Aof the Act.

    In paras 62 & 63, the Tribunal has elaborately considered
    the application filedu/s 144Aof the Act. The mere fact
    that para 7 has not been reproduced in the order does not19mean that the said para has not been considered by the
    Hon'ble Tribunal, as alleged by the Revenue.

    Kind attention is particulary invited to the finding in
    paras 62-63 wherein after considering paras 1 to 4 of the
    application filedu/s 144Aof the Act, the Hon'ble
    Tribunal concluded that three firms had, in fact, admitted
    having sold diamond jewellery to the appellant.

    Para 7 referred by the Revenue, in fact, nowhere supports
    their case, since the said contention was merely an
    alternative submission of the jewelers, as is evident from
    the fact that the said para begins with the phrase
    "Without Prejudice".Reliance placed by the Revenue, in the present
    miscellaneous application, on the assessment orders
    passed in the case of Vinod Jewellers is also grossly
    misplaced since the said order has also been considered
    in paras 58 to 60 of the order of the Tribunal.F   The assessee fails to appreciate as to how despite the fact
    that the Tribunal, in para 64 of the order, has elaborately
    dealt with the assessment order passed in the case of M/s.
    Vinod Jewellers, it could even be alleged by the Revenue
    that the Tribunal has not considered any particular fact.

    On a carefully perusal of the contention of the Revenue,
    it is noticed that the Revenue is, in fact, again trying to
    dictate the conclusion that the Tribunal ought to have
    arrived at.In doing so, the Revenue has, in fact, contended that the
    Tribunal had come to a wrong conclusion, which clearly
    shows complete disrespect to the binding order of the
    Tribunal.The assessee fails to appreciate as to how such contention
    can even be raised in the miscellaneous applicationu/s
    254(2)of the Act. The said proceedings are restricted to20rectification of mistakes apparent from record and not for
     the parties to the appeal to vent its grievance against the
     final conclusion/finding of the Tribunal.G    In this para too, the Revenue, instead of pointing out any
     mistake apparent from record in the order of the
     Tribunal, has in fact challenged the conclusion of the
     Tribunal, which is clearly not permissibleu/s 254(2)of
     the Act.H.   In para 67 to 70, the Tribunal has elaborately considered
     all the statements of the appellant recorded at various
     points of time. Even in the miscellaneous application, it
     is not the case of the Revenue that any of the statements
     of the appellant have not been considered.Both the statements dated 13th Feb.,2002 and 11th Nov.,
     2003, referred by the Revenue have, in fact, been
     elaborately dealt with by the Tribunal in paras 67 to 68
     in the two statements as alleged by the Revenue, since in
     the statement dated 11.11.2003, the appellant had
     referred to starting of repair work of jewellery in the year
     1993-94, whereas in the statement dated 13.02.2002, the
     appellant had referred to starting of the jewellery
     business.The contentions of the Revenue are, it is submitted,
     nothing but a clear attempt on the part of the department
     to challenge the conclusion of the Tribunal in guise of the
     present miscellaneous applicationu/s 254(2)of the Act.
     This is clearly evident from the use of the following
     expressions in the miscellaneous application:"Had the Tribunal analysed the said statements of
           the assessee, it would have easily come to the
           conclusion that the assessee has only been lying.
           The Tribunal's failure to ascertain the truth from
           these statements again amount to mistake."21There is clearly no error in the order of the Hon'ble
    Tribunal, as alleged by the Revenue.I   All the aspects mentioned by the Revenue have been
    elaborately considered by the Tribunal in para 71 to 75 of
    the order, as explained hereunder:(a) Issue regarding non-reporting of the matter to the
        higher authority has been considered by the Tribunal
        in para 80 of the order wherein reference has been
        made to a letter written by Amritsar Jewellery
        Association     to CBDT complaining against the
        harassment by the investigation wing of Amritsar.(b) The fact that statements of the appellate dated
        16.1.2003 and 17.1.2003 were recorded in the
        presence of Sh. Rajan Kumar, the so called counsel of
        the appellant, ha been considered in para 36 of the
        order of the Tribunal.In view of the aforesaid, the contention of the Revenue
    that certain facts have not been taken cognizance of by
    the Tribunal is factually incorrect.It may also be pertinent to mention here that the Tribunal
    in paras 71 to 75 have not only elaborately dealt with all
    the statements of the appellant, but also considered the
    then prevailing circumstances, retractions filed by the
    appellant etc. to come to a finding/conclusion.

    The Revenue is merely trying to challenge the
    conclusion/finding of the Tribunal, which is clearly not
    permissible within the scope ofsection 254(2)of the Act.

J   Again, the Revenue has shown gross disrespect to the
    binding order of the Tribunal by seeking to challenge the
    conclusion/finding of the Tribunal in the guise of
    miscellaneous applicationu/s 254(2)of the Act.

    The Hon'ble Tribunal has first recorded the arguments
    advanced on behalf of the appellant. In paras 17 to 32 the22Tribunal has extensively referred to the various
     arguments addressed ton behalf of the Revenue.
     Thereafter, the Tribunal has dealt with the arguments
     advanced on both the sides from para 67 onwards.

     Each and every argument of both the sides has been fully
     considered by the Tribunal.In paras 76 to 80 the Tribunal dilated the legal position
     emanating from various judicial precedents and had
     applied the legal position to the facts of the present case.

     In fact, in the above paras, the Tribunal has also dealt
     with various arguments and the decisions relied upon by
     the Revenue.In the present miscellaneous application, the argument
     which has allegedly not been considered the Tribunal is
     conspicuous by its absence.It is true, patently clearly that there is no error in the
     order of the Tribunal, as alleged by the Revenue. The
     Revenue is only seeking to challenge the final conclusion
     of the Tribunal in the miscellaneous application, which is
     clearly not permissible in law.K.   In paras 81 to 87 the Hon'ble Tribunal has elaborately
     dealt with the legal position regarding validity of the
     statements recorded by DDIT(Inv) and has
     followed/relied upon various decision of co-ordinate
     Benches of the Tribunal.As regards the decision of the Madhya Pradesh High
     Court in the case of Classice Builders, refrred by the
     Revenue, the same has been specifically dealt with and
     considered in para 85 of the order of the Tribunal.

     In view of the aforesaid, there is clearly no mistake in the
     order of the Tribunal.23L.   On perusal of the contentions of the Revenue, it is clearly
     evident that it has been alleged that the order passed by
     the Tribunal is a non-speaking order wherein the
     Tribunal has not, according to the Revenue elaborately
     dealt with the conclusion arrived at on the basis of
     statements of various persons.The contentions of the Revenue are, it is reiterated,
     nothing but a clear attempt on the part of the Revenue to
     show gross disrespect to the order of the Tribunal. In
     fact, there is a clear attempt on the part of the Revenue in
     trying to dictate/direct not only the manner in which the
     Tribunal ought to have passed the order but also to direct
     and dictated the conclusion that the Tribunal should have
     arrived at.Reference, at this stage may be made to the decision of
     the Hon'ble Supreme Court in the case ofGopal Sugar
     vs. ITO: 40 ITR 618, which has been elaborately
     discussed in the main submissions. At the cost of
     duplicity, it may however, be noted thatin that casethe
     Court observed that the contention of the Revenue that
     the order of the Tribunal was not intelligble'betrays a
     regrettable lack of candour'.The aforesaid decision is equally applicable and directly
     deals with the unacceptable contentions being canvassed
     on behalf of the Revenue, in clear/gross violation of
     principles of judicial hierarch/propriety/discipline.

M.   In para 92 the Hon'ble Tribunal has specifically rejected
     the contention of the Revenue that the facts relating to an
     altogether different assessee cannot be taken into
     consideration while deciding the case of the appellant.

     The Revenue is, in the miscellaneous application,
     indirectly seeking to suggest (intact direct) that the
     Tribunal should have considered the facts relating to M/s.
     Nayyar Jewellers and should not have rejected the said
     argument of the Revenue.24Again there is clear attempt on the part of the Revenue in
     violating all the canons of principles of judicial
     hierarchy/propriety/discipline.There is clearly no mistake in the order of the Tribunal
     requiring rectificationu/s 254(2)of the Act.

N.   The Revenue has again challenged the correctness of the
     finding/conclusion of the Tribunal. As elaborately
     discussed supra, this is clearly not permissible in law.

     In fact, in para 101, the Tribunal noticed that the letters
     mentioned by the Revenue were very much filed before
     the CIT(A).There is , thus, no mistake apparent from record in the
     order of the Tribunal.O    In para 103 the Tribunal before referring to and relying
     upon the decision of the Special Bench of the Tribunal in
     the case of Manoj Aggarwal has come to a definite
     finding that the evidences available on record clearly
     establish that the appellant was not providing
     accommodation entry.Thereafter, the Hon'ble Tribunal has merely relied upon
     the decision of the Special Bench of the Tribunal in the
     case of Manoj Aggarwal in support of its conclusion.

     The Hon'ble Tribunal has nowhere observed that the
     facts of the appellant's case are identical/pari material
     with the facts in the case of Manoj Aggarwal. The
     Hon'ble Tribunal has merely relied upon. the ratio
     emanating from the decision of the Special Bench of the
     Tribunal, in support of the specific findings given after
     appreciating the entire evidences placed on record in the
     case of the appellant.25The appellant fails to appreciate as to how there is an
     error in the order of the Tribunal in placing reliance on
     the decision of the Special Bench of the Tribunal.

P.   The contentions of the Revenue, the submission of the
     appellant and the findings of the Tribunal on this issue
     are contained in paras 19,33, and 90.Therefore, the allegation of the Revenue that the
     argument of the Department relying upon the contents of
     PAN Application Form filed by the assessee has not been
     considered at all is factually incorrect.Q    The Hon'ble Tribunal, as discussed in Annexure A and in
     this Annexure, has elaborately dealt with not only all the
     statements of the appellant, but also the then prevailing
     circumstances and has also taken into consideration
     various other facts like complaint being filed before the
     CBDT against the pressure being exerted by the
     investigating agency.Reference now being made to a letter sent by Sh. Kapil
     Kumar, counsel for the assessee, nowhere supports the
     case of the Revenue. In the said letter, the counsel merely
     informed about the appellant having been hospitalized
     and, therefore, requested for time to appear.

     In view of the aforesaid, the contention of the Revenue
     that an important argument has not been considered is, it
     is respectfully submitted, totally misplaced/fallacious.

R.   The additional evidences filed by the department vide Sl.No.69 of the departmental paper book (pages 399 to 400)
     were admitted by the Hon'ble Bench and duly taken into
     consideration while adjudicating the appeal.

     The arguments of the Department were also rebutted by
     the appellant in the submissions filed before the Bench.26Reference to the said evidences and the arguments based
                     on the said evidences have been incorporated in paras 6
                     and 24 of the Tribunal's order.In the aforesaid circumstances, the contention of the
                     Revenue that the evidences filed and the argument raised
                     have not been considered is, it is respectfully submitted,
                     factually incorrect.S.      The Hon'ble Tribunal had, vide separate order dated
                     27.5.2009, admitted the additional grounds of appeal
                     preferred by the appellant. In the said order, the Tribunal
                     has elaborately dealt with the arguments addressed on
                     behalf of both the sides.The argument of the Department that the matter should
                     be referred back to the lower authorities was specifically
                     considered and rejected by the Hon'ble Tribunal.
                     Reference, in this regard, may be made to para 17 on
                     page 16 of the order dated 27th May, 2009.The contention of the Department that the arguments
                     addressed have not been considered is, therefore, it is
                     respectfully submitted, factually incorrect.7.    As regards 33 points, the reply of the said 33 points in the

miscellaneous application of the Revenue from pages 9 to             57 of the

application of the Revenue, the arguments and through written submissions

on behalf of the assessee point-wise is as under:Point               Reply
              I            All these issues have specifically been consideredby the Hon'ble Tribunal in para19,33,37,52,53,57,
                           88F and 91. Therefore, the contention of the
                           Revenue that the arguments/submissions have not
                           been considered is factually incorrect.272.    Rent agreement and submissions based on the
      same have been considered by the Hon'ble
      Tribunal in paras 19,54 and 88b of the order.3.    This issue has specifically been considered in
      paras 19,34 and 55 to 57 of the order.4.    These aspects have been elaborately considered in
      paras 32, 38 and 97 to 102 of the order.5.    These aspects have been elaborately considered in
      paras 24, 34 and 58 to 65 of the order.6.    The aspect relating to the manner in which
      statements of the appellants were recorded has
      been elaborately considered in paras 67 to 75 of
      the order.7&9   Both the statement shave been considered in para
      28 and 88(h) of the order.8.    The statement has been considered in paras 27, 31,
      36 and 58 to 65 of the order.10.   These statements have been considered in paras
      11, 23 and 69 to 70 of the order.11.   These statements have been considered in paras
      20,54, 88(a), 88(b) and 88(c) of the order.12.   This aspect has been specifically considered in
      paras 29,35 and 90 of the order.13.   All these aspects have been considered in paras
      32(a), 36, 58, 60, 61, 80 and 105 of the order.14.   This aspect has been considered in paras 16, 44, 57
      and 71 of the order.2815 & 16.     Transactions with State Bank of India have been
             elaborately considered in the order, as discussed in
             reply to point no. 4 supra.Statement of various persons             have been
             considered in various paras of the Hon'ble
             Tribunal, particularly para 88 of the order.

             Issue of duplicate bill books, being found has been
             discussed in paras 39, 93 and 94 of the order.17.          This aspect has been specifically considered in
             para 98 to 101 of the order.18.19 & 20   Various statements of the appellant have been
             elaborately considered in paras 67 to 75 of the
             order.21.          These statements have been dealt with by the
             Tribunal in paras 88(c) and 88(g) of the order.22.          Statements of various persons have been dealt with
             in various paras of the order, particularly para 88
             of the order.Issue of duplicate bill book and alleged
             discrepancies in the bills have also been
             considered in paras 39, 93 and 94 of the order.23.          This statement nowhere supports the case of the
             Revenue, The exact grievance of the Revenue has
             not been stated.24.          Issue of bullion trade with State Bank of India has
             been elaborately dealt with in paras 23, 32, 38, 96
             to 101 of the order.25.          This issue has been discussed in paras 22, 25 and
             94 of the order.2926 & 27         This issue/aspect has been considered in paras 52
                      and 53 of the order.28.             Statements of the appellant and subsequent
                      retraction have been elaborately considered in
                      paras 67 to 75 of the order.29.             Same as point Nos. 26 & 27.30.             The fact that there was an inadvertent error in
                      typing the name of the mother of the appellant was
                      pointed out by the appellant in its reply filed
                      before the Tribunal. Such typographical error does
                      not support/advance the case of the Revenue in
                      any manner.Further, the Department book contradictory stand
                      since in point no. 28 it was alleged that the
                      affidavit was never filed, whereas in point no. 30 it
                      was admitted that the affidavit was filed.31.             This issue has been dealt with in paras 32 and 55
                      of the order.32.             The Department has not pointed out the issue
                      which has been dealt with in the submissions but
                      not considered by the Tribunal.In MA, the entire submissions has merely been
                      reproduced without appreciating that each of the
                      issues/arguments raised therein have been
                      considered in the order of the Tribunal.33.             This aspect has been considered in detail by the
                      Hon'ble Tribunal in paras 32(a) and 104 to 107 of
                      the order.8.    Apart from the reply of the said 33 points, it was argued and

submitted as under:30"Apart from the alleged factual errors mentioned in paras A to O on
pages 1 to 9 of the miscellaneous application filed by the Revenue,
which have been separately dealt with in Annexures 'A' and 'B', the
Revenue has also referred to 33 points on pages 9 to 57 of the
miscellaneous application.It is the case of the Revenue that the aforesaid 33 points were raised in
the written submissions filed before the Tribunal, which have not been
considered at all in the final order.In the rebuttal to the aforesaid, it is respectfully submitted as under:It is, at the outset, respectfully submitted that the Department has
referred to written submissions filed by the Departmental
Representative on 10th June, 2009. In response to the said
submissions, the appellant had also filed a para-wise rebuttal/reply on
17th June, 2009.The contention of the Revenue that the aforesaid 33 points raised by
the Revenue in the form of written submissions have not been
considered at all, it is respectfully submitted, is factually incorrect and
grossly misplaced. All the arguments/submissions made in the above
written submissions were, it is respectfully submitted, very much
considered by the Tribunal, as elaborated infra.The Tribunal has, in fact, specifically noticed the fact that the ld.
Departmental Representative had filed written submissions in para
32(a) of the order. Therefore, the contention of the Revenue that the
written submissions filed before the Bench were not considered, it is
respectfully submitted, is factually incorrect.The grievance of the Revenue, it appears, is based on the fact that the
Tribunal has not reproduced the entire written submission filed on
behalf of the Department in the final order passed by the Hon'ble
Tribunal. In the respectful submission of the appellant, non-
production of the entire written submissions filed by either of the
parties in the final order passed by the Tribunal cannot be the basis for
seeking a recall/review of the detailed order passed by the Tribunal."319.     It was argued by the ld. counsel for the assessee that in the above

miscellaneous application, the Revenue has taken the following grounds for

seeking review and recall of the order passed by the Tribunal:(a)    Alleged factual errors set out in paras A to O on pages 1 to 8 of
              the application.(b)    Alleged non-consideration of arguments and evidences set out
              in paras P to S on pages 8 and 9 of the application.(c)    Non-consideration of arguments and evidences, being 33 points
              set out on pages 9 to 57 of the application.9.1.   It was further submitted that the contentions raised in the

miscellaneous application preferred by the Revenue are not only factually

incorrect but in fact contains prayer for review and recall of the elaborate

order passed by the Hon'ble Tribunal, which is beyond the scope and ambit

of the provisions ofsection 254(2)of the Act. The Ld. counsel for the

assessee Mr. Rohit Jain invited our attention to provisions ofsection 254(2)of the Act and stated that the said section is only intended to rectify mistakes

apparent from record, i.e. obvious and patent mistakes.



9.2.   He further invited our attention to judgments of various courts of law:i)     T.S. Balaram, ITO vs. Volkart Brothers 82 ITR 150 (SC)ii)    CIT vs. Hero Cycles P. Ltd. 228 ITR 463 (SC)iii)   Deva Metal Powders (P) Ltd              vs. Commissioner of

              Trade Tax UP (2008) 2 SCC 439 (SC)32iv)      CIT vs. Vardhman Spinning 226 ITR 296 (P&H)v)       Uplaksh Metal Industries v. CIT 309 ITR 61 (P&H)vi)      CIT vs. Pearl Woollen Mills ITR No.187 of 1998 (P&H)vii)     B. Leasing & Finance Co. Ltd. vs. CIT163 Taxman 143 (Del)viii) CIT vs. Mcdowell & Co. Ltd.310 ITR 215 (Kar)ix)      Asia Resorts Ltd. vs. CIT 245 CTR 276 (HP)x)       K.K. Ravindran (Decd.) by LRs vs. ITAT & Anr. 332 ITR 569
               (Ori)xi)      Popular Engineering Co. vs. ITAT 248 ITR 577 (P&H)xii)     Gopal Sugar vs. ITO 40 ITR 618 (SC)xiii)    Abdul Sattar vs. ITO132 ITR 875 (Kerala)xiv)     CIT vs. Gokul Chand Agarwal202 ITR 14 (Cal.)xv)      CIT vs. Ramesh Electric & Trading Co.203 ITR 497 (Bom.)xvi)     Corrosion Roadlines vs. DCIT 92 TTJ 631 (TM)
      xvii)    Express Newspapers Limited vs. DCIT 320 ITR 12 (Mad)
      xviii)   Biswanath Prasad & Sons vs CIT 277 ITR 26510.   As regards the revised mistake, it was argued during the course of

hearing by the ld. counsel for the assessee that the decision of the Hon'ble

Punjab & Haryana High Court in the case ofCIT vs. Tejinder Singh, HUFreported in 239 CTR 342 cannot be made applicable in the present case,

sincein that casethe appellant was the person who declared jewellery under

VDIS and also made sale of the jewellery. The said appellant was not a

jeweler as the appellant in the present case was engaged in the business of

sale and purchase of jewellery The appellant's case at the most can be33compared with three jewellers i.e. Mr. Manoj Aggarwal etc. The Ld.

counsel for the assessee prayed that the decision of the Tribunal has been

given on the basis of facts of the assessee that the assessee is engaged in the

business of sale and purchase of jewllery and therefore,the said decisionof

Hon'ble Punjab & Haryana High Court, cannot be the basis of mistake

apparent from record in the facts and circumstances of the case. Therefore,

the Ld. counsel for the assessee prayed that there is no mistake apparent

from record in the order of the ITAT         dated 26.06.2009 and      for the

submissions and arguments made hereinabove and in the written

submissions, the Revenue, in fact, is trying to get the order reviewed under

the garb of Miscellaneous Application which is not permitted undersection

254(2)of the Act. Therefore, the said Miscellaneous Application of the

Revenue be rejected in view of the arguments and submissions made and the

decisions of various courts of law relied upon hereinabove.11.   We have heard the rival contentions and perused the facts of the case.

It was argued by the Ld. DCIT(DR), Mr. Tarsem Lal that in point 'A' to 'S'

in Revenue's application at pages 1 to 9, there are factual errors, errors on

account of non-consideration of the arguments and evidence led by the

Department. The errors on account of facts are enumerated at para "A" to34"O" and errors on account of non-consideration of arguments and evidence

led by the department are enumerated at paras "P" to "S". First of all, we

deal with the mistakes pointed out in the application of the Revenue in paras

"A" to "S" as under:a)    As regards para 53 of ITAT order, the Ld. DR pointed out that

      the findings of Tribunal in this para are wrong and misplaced as the

      reasons recorded are never the findings of the AO but they are only a

      premise. A premise can never be a substitute for a factual truth which

      had been established in the order of the AO that the assessee was not

      engaged in the business of sale and purchase of jewellery. In this para

      53, the ITAT has considered cumulative circumstances, including the

      reasons   recorded by the AO for reopening assessment for the

      assessment years 1996-97 & 1997-98 and also the fact that the

      proceedings for the said assessment years, which were subsequently

      dropped to come to a conclusion that the assessee was engaged in the

      business of jewellery upto the assessment year 1997-98. The Ld.

      DCIT(DR), Mr. Tarsem Lal has tried to get the order reviewed of this

      Bench, which is not permissible within the scope ofsection 254(2)of

      the Act. We find no mistake in the order of the Tribunal and the

      Tribunal after considering    all the cumulative circumstances had35finally come to the conclusion      in the said para. Therefore, this

mistake pointed out by the Ld. DR is dismissed.b)    As regards para 54, the Ld. DR pointed out with regard to the

statement of Sh. Jatinder Kumar on 22.01.2004 and the Tibunal has

totally ignored the statement recorded on 06.01.2003. This mistake

pointed out by the ld. DR cannot be accepted for the reason that in

para 54, the Tribunal has reproduced the replies given in response to

questions No. 3 & 4 and at pages 39 & 40 of ITAT's order, the said

statement dated 06.01.2003 has also been considered . At page 67 in

para 88(b) which reads that the statement of Sh. Jatinder Kumar

Anand recorded on 06.01.2003 by the DDIT has been relied upon by

the AO. A perusal of the statement dated 06.01.2003......... which is

evident from the said order at para 88(b) at pages 67 & 68 of ITAT's

order. Therefore, in this para also, the Ld. DCIT(DR), Mr. Tarsem

Lal, has tried to get the order reviewed from this Bench, which is

outside the scope ofsection 254(2)of the Act.c)    In para 55, the Ld. DCIT(DR). Mr. Tarsem Lal, has pointed out

that the department had produced the dispatch register before the

ITAT to show that no notice or intimations were sent by post as

claimed by the assessee. The ITAT has not brought this fact on record.36In this regard, the ITAT has taken into consideration the entire facts of

the matter and contentions of the Revenue that such notices might

have been received by the assessee personally and the assessee had

actually taken the shop on rent based on the totality of the facts and

statements of various persons referred in earlier paras. The Tribunal

has considered the said facts of dispatch register and other facts in

totality and has come to the conclusion and therefore, we find no

mistake apparent from record in the said para 55 of the Tribunal's

order. The Ld. DR's contention to get the order reviewed, is outside

the scope ofsection 254(2)of the Act Hence, the same is rejected.(d)   As regards paras 56,57 & 58 of ITAT order, the Ld. DCIT(DR),

Mr. Tarsem Lal appearing on behalf of the Revenue argued that the

ITAT in the said paras had gone by the facts that the Sales Tax

Authorities had accepted the claim of the assessee that the assessee is

engaged in the sale and purchase of jewellery. The Tribunal has not

considered the statement of Sh. Jatinder Kumar dated 06.01.2003. It

was argued that the Tribunal has not considered the argument of the

Ld. DR that the assessee had only created façade of genuineness of

being a purchaser and seller of the jewellery. In this regard, it appears

that the Ld. DCIT(DR), Mr. Tarsem Lal, requires from the Bench to37re-write the order as per his dictates to take the view what the AO has

taken. Whereas in the said paras, the Tribunal has considered the

totality of the facts in the earlier and foregoing paras including the

statement of Sh. Jatinder Kumar Anand and the arguments of the Ld.

DR , including the statement of the landlord, facts relating to

registration of the assessee's jewellery business with the Sales Tax

Authorities. The statememt of Sh. Jatinder Kumar Anand as has been

mentioned hereinabove, has been considered in paras 54 & 88(b) of

the order of the Tribunal and therefore, the argument of the Ld.

DCIT(DR) with regard to the mistake in the said paras is rejected.

Such argument which tantamounts to review of the order of the ITAT

is outside the ambit ofsection 254(2)of the Act, which is not

permitted in the said section. Therefore, mistakes pointed out by the

Ld. DR in paras 56, 57 & 58 are rejected.(e)   As regards mistake 'E' with regard to paras 58 to 64 of the

order of the Tribunal, it was pointed out      in paras 58 to 64 of

Tribunal's order that applicationu/s 144Ain the case of M/s. Kapoor

Jewellers has not been considered. In this regard in paras 62 & 63, the

ITAT has considered the explanation filedu/s 144Aof the Act. Mere

interpretation of para-7 does not mean that the said issue has not been38considered by the ITAT. It has duly been considered in paras 62 & 63.

After considering paras 1 to 4 of application, the ITAT has come to

the conclusion that the said three firms had in fact admitted having

sold diamond jewellery to the assessee. Though para 7 referred by the

ld. DR was an alternative submission. As regards the orders in the

case of M/s. Vinod Jewellers, the same has also been considered in

paras 66 to 68 of ITAT order. From the application of the Revenue

and the arguments of the Ld. DR, the Ld. DCIT(DR), Sh. Tarsem Lal

is trying to get the order reviewed from this Bench, which is outside

the scope ofsection 254(2)of the Act, which is not permitted.

Therefore, the said mistake pointed out       by the Ld. DR in the

application of the Revenue in paras 58 to 64 of the order of the

Tribunal is rejected.(f)   In point 'F' of the Miscellaneous Application, the Ld. DR has

pointed out a mistake in para 64 of the Tribunal that the ITAT has

gone by the false statement of Sh. Vinod Kumar and has not taken

cognizance of the fact that the AO had held him to be only a conduit

for getting accommodation entries from M/s. Vishnu Jewellers. It was

argued that the finding of the AO has become final and this has left no

room with the Tribunal to hold that Sh. Vinod Kumar's statement39was true that the assessee was engaged in the jewellery business. This

application of the Revenue and argument of the Ld. DCIT(DR), Mr.

Tarsem Lal, cannot be accepted that any finding of the AO becomes

final and there is no room for any higher court including the Tribunal

to hold that Sh. Vinod Kumar's statement was true and the assessee

was engaged in the jewellery business. Whereas in para 64 of ITAT

order, the assessment order passed in the case of M/s. Vinod jewelers

has been dealt in detail. It appears that the ld. DCIT(DR), Mr. Tarsem

Lal, requires the Bench to re-write and review the order, which is

beyond the scope ofsection 254(2)of the Act. Therefore, this

miscellaneous application of the Revenue with regard to para 64 is

rejected.(g)    As regards para 66, the Ld. DR argued that the ITAT in para 66

had observed that no seller had denied having sold the jewellery to the

assessee. It was argued before the Bench by the then Ld. DR that no

seller would deny sale of jewellery to the assessee. It was also argued

by the Ld. DCIT(DR), Mr. Tarsem Lal, that the order of the Hon'ble

Mumbai Bench of the Tribunal is not a good order as to whether the

or not M/s. Vishnu Jewellers is engaged in genuine jewellery

business. The ITAT has not considered these arguments of the Ld. DR40before coming     to the conclusion in para 66. In this regard, the

Tribunal has come to the conclusion by considering the totality of the

faces in the foregoing paras and on the basis of the facts, which were

before the Bench and after considering all the facts and decision

before it, the ITAT had decided the issue in para 66. It appears that

the Ld. DCIT(DR), Mr. Tarsem Lal, is trying to get the order

reviewed or to re-write the order as per his dictates, which he has

commented on the order of the Tribunal of Mumbai Bench that the

same was not a good order, which is not permitted. Such arguments or

dictates and comments on the orders of the higher authorities are not

permitted by the Ld. DR. In the facts and circumstances of the case,

we find no mistake as pointed out by the Revenue and argued by the

ld. DR in para 66 of the order of the Tribunal and the same is rejected.(h)   As regards to point 'H' of the Miscellaneous Application with

regard to paras 67 to 70 of ITAT's order, it was argued by the Ld.

DCIT(DR), Mr. Tarsem Lal, appearing for the Revenue             that the

Bench in the said paras 67 to 70 has quoted several statements of the

assessee and the ITAT has failed to ascertain the truth from these

statements and it is a perverse order of the ITAT and there is an41erroneous view formed by the ITAT since the ITAT has not

considered the relevant contents of the statements, this amounts to

mistake apparent from record undersection 254(2)of the Act. The

Ld. DR tried to point out version in the statement and the

interpretations which should have been taken by the ITAT and again

pointed out that this is a mistake apparent from record and the order

should be recalled.In this regard, it is not the case of the Revenue that no statement

of the assessee has been considered. The statements dated 13.02.2002

and 11.11.2003 referred to in the application of Revenue have been

dealt with in ITAT's order in paras 67 & 68. Therefore, the Tribunal

has in its wisdom by considering the totality of the facts and the

statements etc. have come to the conclusion in the said paras and we

find no mistake in the said paras 67 to 70 of ITAT's order. The

miscellaneous application of the Revenue and the arguments of the

Ld. DCIT(DR), Mr. Tarsem Lal using the words " that the ITAT has

failed to ascertain the truth, that the order is perverse and there is

erroneous view formed, are outside the scope ofsection 254(2)of the

Act and such dictate should be avoided and cannot be subject matter42of the argument by the Ld. DCIT(DR), Mr. Tarsem Lal in his

arguments in applicationu/s 254(2)of the Act. In the facts and

circumstances, we find no mistake apparent from record in paras 67

to 70u/s 254(2)of the Act. Thus, the miscellaneous application of the

Revenue in this regard is rejected.(i)   As regards paras 71 to 75 of the order of the ITAT, the Ld.

DCIT(DR), Mr. Tarsem Lal, appearing for the Revenue has argued

that confessional statements of the assessee dated 16.01.2003 and

17.01.2003 were     under substantial threat and coercion, were the

findings of the Tribunal in the said paras. In this regard, the Ld.

DCIT( DR), Mr. Tarsem Lal argued that ITAT while passing order in

paras 71 to 75 has missed to deal with the arguments of the ld. DR

that had the assessee been really humiliated and paraded in bazaar, he

would not have gone to the Police Station on 07.01.2003 for filing an

FIR. It was argued by the Ld. DCIT(DR), Mr. Tarsem Lal that the

ITAT has failed to take cognizance of the fact that the confessional

statements could not be under any pressure as the same were recorded

in the presence of Sh. Rajan Kumar, CA, counsel for the assessee.

This was not considered by the Bench and this renders the order

rectifiable undersection 254(2)of the Act.43In this regard, the Tribunal in paras 71 to 75 has considered the issue

with regard to non-reporting of the matter to the higher authorities in

para 80 of its order where the reference has been made to a letter

written by Amritsar Jewellery Association to CBDT complaining

against the harassment by the investigation wing of Amritsar Income-

tax Department. The facts of the statements dated 16.01.2003 &

17.01.2003 in the presence of Sh. Rajan Kumar,CA, counsel for the

assessee have also been considered in para 36 of ITAT's order. The

ITAT after considering in totality of the facts and circumstances

before it, at the time of passing of the order, did not find any mistake

in the said paras 71 to 75 as pointed out by the Revenue and argued by

the Ld. DR. The wording again used by the Ld. DCIT(DR), Mr.

Tarsem Lal in his arguments that the ITAT has failed to take

cognizance of the fact that confessional statements could not be given

under any pressure is not permitted.(j)   As regards point 'J' of the miscellaneous        application with

regard to paras 76 to 80, the Ld. DCIT(DR), Mr.Tarsem Lal appearing

for the Revenue has argued that the ITAT in the said paras has

referred to three decisions of Hon'ble Supreme Court that the legal44position that emerges is that of a retracted statement, though binds the

assessee, once retracted cannot be sole basis for making the

assessment. It was argued by the Ld. DCIT(DR), Mr. Tarsem Lal that

the Tribunal has allowed the assessee to come out of 'bind' simply by

stating that he was harassed and humiliated when factual matrix is

contrary and it constitutes a mistake apparent from record.In this regard, the Ld. DR has challenged the order of the ITAT

under the garb of miscellaneous applicationu/s 254(2)of the Act,

which is out side the scope ofsection 254(2)of the Act. The ITAT has

recorded the arguments advanced on behalf of the assessee in paras 17

to 32 of its order. The ITAT has referred to various arguments

addressed on behalf of the Revenue and thereafter arguments by both

sides from para 67 and thereafter the arguments of both the sides were

considered by the ITAT and in the totality of the facts and

circumstances before the Bench and the legal position as emanating

from the decisions of various judicial precedents had applied the legal

position to the facts of the case before the Tribunal. In this regard, we

find no mistake apparent from the recordsu/s 254(2)of the Act and

the application of the Revenue with regard to paras 76 to 80 is

rejected.45(k)    In point 'K' of the miscellaneous application with regard to

paras 81 to 87, the Ld. DR, Mr. Tarsem Lal pointed out that the

Gazetted Officer like DDIT (Investigation), who had recorded the

statements were valid statements and the Tribunal in para 81 to 87

has wrongly held with regard to the recording of the statement by

DDIT (Inv.).In this regard, in the said paras 81 to 87, the ITAT has dealt

with the legal position regarding validity of the statements recorded

by the DDIT(Inv.) and has followed the decision of co-ordinate

Benches of the Tribunal. As regards the decision of the Madhya

Pradesh High Court in the case of Classic Builders referred by the

Revenue,       has been   considered in para 85 of Tribunal's order.

Therefore, we find no mistake in the order of the Tribunal in paras 81

to 87 . The conclusion in the said paras has been made after

considering the facts on record, in view of the legal position in this

regard. Thus, miscellaneous application of the Revenue in point 'K'

is rejected.46(l)    As regards point 'L' with regard to para 88, the Ld. DCIT(DR),

Mr. Tarsem Lal, has argued that the ITAT has not considered the

statements of Sh. Harjinder Singh and Sh. Jatinder Kumar. The ITAT

has passed a non-speaking order. The ITAT has not appreciated the

filing of the deposit vouchers in the bank premises , also by allowing

Sh. Rakesh Kumar       though with his retraction statement without

binding him with the previous statement dated 22.1.2003. It was also

argued that the ITAT in its order has made monumental mistake in

recording that both the persons namely Sh. Yudhvir and Sh. Sushil

Kumar Sareen have taken contrary stand in their statements and this

was not considered by the ITAT.With regard to the mistake pointed out by the Ld. DCIT(DR)

and on perusal of the facts on record before the ITAT, the ITAT has

passed the order after considering the totality of the facts and

considering all the statements as referred to by the Revenue in the

application of the Revenue and as argued by the ld. DR. It appears

that the Ld. DCIT(DR), Mr. Tarsem Lal, by using the word

'monumental' mistake and non-speaking order is trying to get the

order reviewed, which is not within the scope ofsection 254(2)of the

Act. Therefore, the application in point 'L' of the Revenue is rejected.47(m)    As regards point 'M' of the Miscellaneous Application of the

Revenue with regard to para 92 of ITAT's order, the mistake pointed

out by the Ld. DR was that the ITAT has not considered the argument

of the ld. DR that it was not sheer coincide that both Sh. Rishi Grover

and Sh, Raj Kumar should have identical facts and it is a mistake

apparent from record.In this regard, the ITAT has specifically rejected the contention

of the Revenue that the facts relating to different assessees cannot be

taken into consideration, while deciding the case of the assessee.

Therefore, in the facts and circumstances, we find no mistake apparent

from record in the application in point 'M' of the Revenue.The same

is rejected.(n)    In point 'N' of the miscellaneous application with regard to

paras 97 to 102, it was pointed out by the Ld. DR that the Tribunal has

not dealt with the arguments of the ld. DR with regard to the letters

dated 13.2.2006 and 22.2.2006. In this regard, the ITAT in para 102

has noticed that the letters mentioned by the Revenue were very much

filed before the ld. CIT(A). The ITAT by considering the totality of

the facts of the said letters have decided the issue. We find no mistake48apparent from record in the said paras 97 to 102 in the order of the

Tribunal. The mistake pointed out in point 'N' of the miscellaneous

application of the Revenue is thus rejected.(o)   As regards point 'O' of the miscellaneous application of the

Revenue, it was argued by the Ld. DCIT(DR), Mr. Tarsem Lal with

regard to paras 104 to 107 of the order of the Tribunal that the

Tribunal has erred in holding that the decision of the Special Bench

of Delhi Bench of the Tribunal in the case ofSh. Manoj Aggarwal vs.

DCIT, 113 ITD 377 is applicable to the case of the assessee.The Ld.

DCIT(DR), Mr. Tarsem Lal pointed out how the said case of Special

Bench (supra) is different from the case of the assessee and therefore,

the said case in Special Bench has wrongly been applied by the ITAT

and this constitutes a mistake apparent from record.The Tribunal in para 103 has given a definite finding and on

the basis of evidences available on record clearly established that the

assessee was not providing accommodation entry. The ITAT has

merely relied on the Special Bench in the case of Sh. Manoj Kumar

and has no where observed the facts in the case of the assessee are

identical to the facts in the case of Sh. Manoj Aggarwal referred to

hereinabove. The Tribunal has relied upon the ratio emanating from49the decision of the Special Bench of the Tribunal in the case of Sh.

Manoh Aggarwal, in support of the specific findings given after

appreciating the facts in totality. Therefore, in the facts and

circumstances, we find no mistake apparent from record in point 'O'

and in paras 104 to 107 of the order of the Tribunal. Thus, the

miscellaneous application on the point of 'O' of the Revenue is

rejected.(p)   As regards point 'P', it was argued by the Ld. DR that the

Tribunal has not considered at all the irrefutable evidence in the form

of form No.49A being PAN application form dated 15.03.2001 where

the assessee has ticked "Salaries" as the source of his income.In this regard, the contentions of the Revenue and submissions

of the assessee are contained in paras 19, 33       and 90 where the

findings given by the Tribunal are on the basis of totality of facts and

therefore, we find no mistake apparent from recordu/s 254(2)of the

Act in point 'P' of the application of the Revenue and the same is

rejected.(q)   As regards point 'Q' of the Revenue, it was pointed out that

page 236 of the Departmental paper book which is a letter sent by Sh.50Kapil Kumar, CA, counsel for the assessee, the same has wrongly

been accepted by the Tribunal. The Tribunal has not considered the

Ld. DR's argument in this regard and it constitutes a mistake apparent

from record.In this regard, the ITAT has dealt with the statements of the

assessee, the prevailing circumstances at that time and after taking

into consideration all the facts like complaint filed before the CBDT

against Income Tax Department for being exerting the pressure, the

decision had been taken by the Tribunal. As regards the letter sent by

Sh. Kapil Kumar, CA, which is mere information, who was seeking

time for appearance does not effect the decision of the Revenue,

which has been taken as mentioned hereinabove, after considering the

totality of the facts and various other circumstances. Accordingly, we

find no mistake as pointed out by the Revenue in point 'Q' of its

application. Thus, the same is rejected.(r)   As regards point 'R' of the miscellaneous application of the

Revenue, it was argued by the ld. DCIT(DR) before the ITAT that

there has not been genuine purchase and sale of jewellery as jewellery

had been bought and sold which was inconsistent with the prevailing51market rates. A copy of market rates for Gold and Silver was filed at

pages 399 to 400 of the Departmental paper book.In this regard, additional evidences filed by the Department

vide Sl. No.69 of the departmental paper book at pages 399 to 400

were admitted by the ITAT, which were duly taken into consideration

while deciding the appeal. The arguments of the Revenue were also

rebutted by the assessee. The said evidences/arguments are found in

paras 6 & 24 of the Tribunal's order In the facts and circumstances,

we find no mistake in point 'R' of the miscellaneous application of the

Revenue. The said application of the Revenue is, therefore, rejected.(s)   As regards point 'S' of the miscellaneous application of the

Revenue, it was argued that after admission of additional grounds of

the assessee, the proper course for the Tribunal was to refer the matter

back to the file of the ld. CIT(A) for adjudicating the grounds and the

Bench cannot sit in judgment over an additional ground on facts. This

ground of the department has not been considered at all and is a

glaring mistake of law.In this regard, the ITAT vide its order dated 27.05.2009 has

admitted the additional grounds, where the arguments addressed by52both the sides have been dealt with and where specific reference to the

      arguments of the Revenue to refer the matter back to the lower

      authorities has been given and which was rejected by the Tribunal.

      The reference is found in para 17 at page 16 of the order dated 27th

      May, 2009. Therefore, in the facts and circumstances, the

      miscellaneous application of the Revenue in para 'S' is rejected.12.   As regards 33 points which the Ld. DCIT(DR), Mr. Tarsem Lal has

referred at pages 9 to 57 of the miscellaneous application, though the same

were not argued at all and it has not been pointed out what actually

mistake is there in the said 33 points. However, in the interest of justice, we

have gone through the written submissions of the Revenue and the mistakes

so pointed out at pages 9 to 57 of the miscellaneous application and the reply

of the assessee in this regard. We deal with such 33 points as under:i)     As regards point No.1 of the Miscellaneous Application, we

      have observed that all the issues have specifically been considered by

      the Tribunal in paras 19, 33, 37, 52, 53, 57, 88F & 91.53ii)      As regards      mistake point-2, the rent agreement and

submissions based on the same has been considered at paras 19,54, &

88b of Tribunal's order.iii)     In point-3, the same has been considered in paras 19,34 and 55

to 57 of the Tribunal's order.iv)      As regards point-4 with regard to bills of the State Bank of

India, the same has been considered by the Tribunal in paras 32, 38

and 97 to 102 of its order.v)       As regards point-5, with regard to description of jewellery

contained in bills issued by M/s. Vinod Jewellers, the said description

has been considered in paras 24, 34 and 58 to 65 of the Tribunal's

order.vi)      As regards point-6 with regards to threat or coercion has been

considered in paras 67 to 75 of ITAT's order.vii)     As regards points-7 & 9 with regard to the statements of Sh.Yudhivir and Sh. Sushil Kumar, the same have been considered in

paras 28 and 88(h) of the ITAT's order.viii) As regards point-8 with regard to the statements of Sh. Satish

Kumar, the same have been considered in paras 27,31, 36 and 58 to 65

of the Tribunal's order.54ix)    As regards point-10 with regard to the statements of Sanjay

Grover brother of the assessee, the same have been considered in

paras 11, 23 and 69 to 70 of the Tribunal's order.x)     As regards point-11 with regard to the statements of Sh.

Jatinder Anand, Vikash Seth and Sh. Ashok Kumar, the same have

been considered in paras 20,54, 88(a), 88(b) and 88(c)          of the

Tribunal's order.xi)    As regards point 12 with regard to the transactions with M/s.

Baba Naga Rice Mills, the same have been considered by the Tribunal

in paras 29,35 and 90 of its order.xii)   As regards point-13 with regard to the complaint in the form of

resolution filed by Amritsar Jewellers Association to the higher

authorities, the same has been considered in paras 32(a), 36, 58, 60,

61, 80 and 105 of the Tribunal's order.xiii) As regards point-14, with regard to bank statement of the

assessee wherein cash has been deposited, the same has been

considered in paras 16, 44, 57 and 71 of the order of the Tribunal.xiv) As regards points-15 & 16 with regard bullion trade with State

Bank of India and statements of various persons and bill books, the55same have been considered in paras 32, 38, 97 to 102, 88, 39, 93 and

94 of the order of the Tribunal.xv)    As regards point-17 with regard to documents inserted/planted

in the file of the CIT(A), the same have been considered in paras 98 to

101 of the Tribunal's order.xvi) As regards points 18, 19 & 20 with regards to the statements of

the assessee, the same have been considered in paras 67 to 75 of the

Tribunal's order.xvii) As regards point-21 with regard to the statements of Sh.

Hakumat Rai and Sh. Vijay Kumar, the same have been dealt with by

the Tribunal in paras 88(e) and 88(g) of its order.

xix)   As regards point - 22, with regard to the statements of Sh.

Vijay Gupta, Sh. Kuljas Rai and others, the same has been considered

in paras 88, 39,93 & 94 of the Tribunal's order.

xx)    As regards point-23, with regard to the statement of Sh. Kapil

Kumar, we find no mistake in this regard and no specific reference

how the mistake has crept has been brought on record.

xxi) As regards point-24, with regard books of account impounded

by DDIT, the same has been considered in paras 23, 32, 38, 96 to 101

of the Tribunal's order.56xxii) As regards point-25 with regard to FIR regarding loss of books

of account, the same has been dealt with in paras 22, 25 and 94 of the

ITAT's order.xxiii) As regards points-26 & 27 with regard to the dropping of

proceedings initiatedu/s 148for the assessment years 1996-97 and

1997-98 and audit report for the assessment year 1998-99, the same

has been considered in paras 52 and 53 of the ITAT's order.

xxiv) As regards point-28 with regard to retraction         filed by the

assessee before the Income-tax authorities, the same has been

considered in paras 67 to 75 of ITAT's order.xxv) As regards point-29, with regard to dropping of proceedings by

the Department for certain assessment years, the same has been

considered by the Tribunal in para 52 & 53 of its order.

xxvi) As regards point-30 with regard to inadvertent mistake in

recording name of mother of the assessee in the affidavit filed before

the Income-tax authorities, in this regard, there was an inadvertent

error in typing the name of the mother of the appellant as pointed out

by the appellant in its reply filed before the Tribunal. This stand by

the Department at this juncture for filing the affidavit or not filing the

affidavit does not constitute a mistake apparent from record.57xxvii) As regards point-31 with regard to delivery of correspondences

      at the address of the assessee, the same has been dealt with in paras 32

      and 55 of the Tribunal's order.xxviii)       As regards point-32 with regard to the reply to the

      submissions filed on behalf of the assessee before the Tribunal,

      nothing has been pointed out by the Revenue on the issue which has

      not been considered by the Tribunal. Whereas the entire submissions

      have been reproduced in the order of the Tribunal.

      xxix) As regards point-33 with regard to the decision of the Special

      Bench in the case of Sh. Manoj Aggarwal, the said decision has been

      considered by the Tribunal in paras 32(a) and 104 to 107 of the

      Tribunal's order.13.   From      the said 33 points raised by the Revenue and after going

through the record and submissions of both the parties, the Tribunal has

considered each and every submission and evidence and facts placed on

record by the Revenue including the written submissions. Therefore, the

application of the Revenue that the ITAT has not considered at all the

written submissions of the Revenue is factually incorrect in view of our

observations hereinabove and therefore application of the Revenue with

regard to said 33 points alongwith application of the Revenue in paras 'A'58to 'S' mentioned hereinabove is rejected. We have observed that the Ld.

DCIT(DR), Mr. Tarsem Lal in the said Miscellaneous Application has tried

to get the order reviewed by this Bench which is outside the scope ofsection

254(2)of the Act The mistake undersection 254(2)of the Act has to be an

obvious and patent mistake and not something which can be established by a

long drawn process of reasoning        on points on which there may be

conceivably two opinions. A decision on a debatable point of law is not a

mistake apparent from the record. This view is fortified by the decision of

the Hon'ble Supreme Court in the case ofT.S. Balaram, ITO vs. Volkart

Brothersreported in 82 ITR 50 .As per decision of Hon'ble Supreme Court

of India in the case ofC.I.T. vs. Hero Cycles Pvt. Ltd. And Others, reported

in 228 ITR 463, rectification undersection 154can only be made when a

glaring mistake of fact or law committed by the officer passing the order

becomes apparent from the record. Rectification is not possible if the

question is debatable. In the present miscellaneous application of the

Revenue, the Ld. DCIT(DR), Mr. Tarsem Lal had tried to argue the whole

appeal under the garb of mistake apparent from record undersection 254(2)of the Act. It is an application undersection 254(2)of the Act which has got

limited application, it should be a glaring and patent mistake, the mistake

should not require any long drawn process of reasoning. It does not cover59the review of the order, as was the intention of the Ld. DCIT(DR), Mr.

Tarsem Lal, in the present application, who had been pointing out the fault

in understanding the facts of the case by the ITAT and wanted the order to

be re-written. Each and every mistake pointed out by the Ld. DCIT(DR),

Mr. Tarsem Lal was capable of full debate and in long drawn process which

is not permitted in law as held and fortified by the decisions of various

courts of law relied upon as under:i)     Deva Metal Powders Pvt. Ltd. Commissioner Trade               Tax
             U.P.(2008) 2 SCC 439 SC).ii)    CIT vs. Vardhman Spinning 226 ITR 296 (P&H)iii)   Uplaskhsh Metal Industries vs. CIT309 ITR 61iv)    CIT vs. Pearl Woollen Mills ITR No.187 of 1998 (P&H)v)     H.B. Leasing and Finance Co. Ltd. vs. CIT163 Taxman 143
             (Delhi).vi)    Asia Resorts Limited vs. CIT245 CTR 276.vii)   K.K. Ravindran (Decd. By Lrs) v. ITAT & Anrs. 332 ITR 569.13.   In the circumstances and facts of the case, the Miscellaneous

Application filed by the Revenue is clearly outside the scope and ambit of

the provisions ofsection 254(2)of the Act and there is no factual error found

in the said order of the ITAT, Amritsar Bench, Amritsar, dated 26th June,602009 passed in ITA Nos. 198 to 202(Asr)/2006 for the assessment years

1998-99 to 2002-03. The Tribunal in its order dated 26.06.2009 has duly

considered all the arguments advanced by the Ld. DR appearing for the

Revenue. Besides, all the evidences available on record and all the written

submissions placed on record. were duly considered by the Tribunal, while

deciding the appeals of the assessee in the said order in ITA No. 198 to

202(Asr)/2006 for the assessment years 1998-99 to 2002-03.                The

miscellaneous application filed by the Revenue in each and every point in

"A" to "S" and in 33 points is highly debatable which requires a long drawn

process of reasoning and debate and, therefore, the said Miscellaneous

Application for all the five years in MA Nos. 55 to 59(ASr)/2010 is rejected.14.   As regards, the revised grounds in the Miscellaneous Application with

regard to the decision ofCIT vs. Tejinder Singh HUF, reported at 239 CTR

432 of the Hon'ble Punjab & Haryana High Court, the said case is not

applicable in the present facts of the case since as argued by the Ld. counsel

for the assessee during the course of hearing that the present case of the

assessee is that of a Jeweller and that ofCIT vs. Tejinder Singh HUF(supra)

is of a person who declared jewellery under VDIS. Therefore, we find no61mistake apparent from record in this regard and the revised Miscellaneous

Application of the Revenue is rejected.15.   In the result, the Miscellaneous Applications of the Revenue in M.A.

Nos.55 to 59(Asr)/2010 are dismissed.Order pronounced in the open court on    26th      June, 2012.Sd/-                          Sd/-
           (H.S. SIDHU)                  (B.P. JAIN)
      JUDICIAL MEMBER                ACCOUNTANT MEMBER

Dated: 26th June, 2012
/SKR/
Copy of the order forwarded to:1.    The Assessee:Sh. Rishi Grover, Amritsar.2.    The ACIT, Cir.IV, Amritsar.3.    The CIT(A), Asr4.    The CIT, Asr5.    The SR DR, ITAT, Amritsar.True copy
                                     By order


                                    (Assistant Registrar)
                               Income Tax Appellate Tribunal,
                               Amritsar Bench: Amritsar.