INCOME TAX ACT, 1961

Section 254(2)

Appeal (Tribunal) - Rectification under section 254(2) - No apparent mistake - Tribunal's decision being based on analysis of fact and record

Assessee sold a piece of land as power of attorney holder of owners of the land. He substantiated the said transaction by filing various documentary evidences. AO was not satisfied with the said evidences, and since the land was sold by the assessee, he assessed the income in the hand of the assessee. However, Tribunal deleted such addition and observed that when the assessee discharged his primary onus by relying on the documents and the AO was not satisfied with those evidences then it was incumbent upon the AO to conduct further enquiry by examining the original owners of the land. Further, Revenue pointed out that the observation and finding of the Tribunal was contrary to the fact of the case as the AO issued summons to the owners of the land, but none of them appeared before the AO. Thus, the Revenue submitted that not considering of such fact amounted to mistake in the order of the Tribunal, and accordingly, the impugned order should be recalled. Held: It was clear from the finding of the fact given by the Tribunal that the assessee produced relevant documentary evidences in support of his claim. Further, the Tribunal had given a finding of fact on merits after analyzing those documentary evidences. On the other hand, the AO though did not accept the documentary evidences but also did not conduct any enquiry and particularly by examination of the original land owners. However, after passing the said order of the Tribunal, the AO was coming up with a new stand that he issued summons under section 131 to the land owners, which was not justified. Further, the assessment order was completely silent about the alleged summons issued by the AO hence, the Tribunal decided the case based on the material available on record, which could not be recalled without any substantial fact or material relevant for the disposal of the case brought on record. Accordingly, the matter being decided on merits and based on the analysis of fact and record could not be reversed or reviewed.

REFERRED :

FAVOUR : In assessee's favour

A.Y. :

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