Pushpa Vani, Bareilly vs Assessee

This Misc. Application is filed by the assessee pointing out certain apparent mistakes in the Tribunal order dated 28/11/2004 for the assessment year 1999-2000.

2. It has been stated in the Misc. Application of the assessee that the Tribunal decision is on the basis that the increase in cash in hand is claimed to have been on account of receipt of some advances against property but such advances had never been shown in the balance sheet nor any capital gain has been declared on account of sale of property. It is submitted that this is not factually correct that the assessee has received any advance against property. It is submitted that in fact, the assessee has made [2]

advances in earlier year and refund of these advances were received in these two years being Rs.6 lacs in financial year 96-97 and Rs.8 lacs in financial year 97-98. It is also submitted that the balance sheet of all the years starting from financial year 1995-96, 1996-97 and 1997-98 are available on pages 16 to 18 of the paper book and in the same, it can be seen that as on 31/03/96, an amount of Rs.14 lac is appearing in asset side under the head 'loans & advances' (asset), which was reduced to Rs.8 lac as on 31/03/97 and nil on 31.03.98. It is submitted that therefore, the basis of the Tribunal decision is not factually correct and hence, it should be accepted that there is apparent mistake in the Tribunal order, which should be rectified.

3. In course of hearing, Learned A.R. of the assessee reiterated the same contentions, which were raised in the Misc. Application. He submitted that considering these facts, it should be held that there is mistake in the order of the Tribunal and it should be recalled.

4. As against this, Learned D.R. of the Revenue submitted that there is no mistake in the order of the Tribunal.

5. We have considered the rival submissions. We find force in the submissions of Learned A.R. of the assessee that the Tribunal decision is on the basis of this premise that the increase in cash in hand is on account of receipt of cash by way of advances against property to the extent of Rs.6 lac during the financial year 96-97 and Rs.8 lac during the financial year 97-

98. We also find that as per the cash book and balance sheets as on 31/03/96 to 31.03.1998, the receipt of cash of Rs.6 lac in financial year 96- 97 and Rs.8 lac in financial year 97-98 is not on account of receipt of advances but it is on account of receipt of refund of advance earlier given by the assessee. Hence, we find force in the contention of the assessee [3]

that the Tribunal decision is on the basis of wrong facts and therefore, there is apparent mistake in the Tribunal order. In view of this, we recall this Tribunal order for a fresh decision. Registry is directed to fix the appeal for hearing in regular course and notice be sent to both sides.

6. In the result, the Misc. Application the assessee stands allowed.

(Order was pronounced in the open court on the date mentioned on the caption page)

Sd/. Sd/.

(SUNIL KUMAR YADAV) ( A. K. GARODIA ) Judicial Member Accountant Member

Dated:19/02/2015 *C.L.Singh

Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. DR, ITAT, Lucknow Asstt. Registrar