1998 PLP (Trib (PTD)

Date of hearing: 16th May, 1998. These three Miscellaneous Applications for the assessment years 1990-91, 1991-92 and 1992-93 have been filed on 4-4-1998 seek the rectification of this Tribunal's Order in I.T.A's. Nos.899, 900 and 901/KB of 1994-95 dated 17-2-1998.

2. Heard Mr. Abdul Tahir, I.T.P. learned representative of the applicant and Mr. Amjad Malik, learned D.R.

3. The learned A.R. firstly submitted that the addition under section 13 has been confirmed by this Tribunal due to mis-understanding and incorrect appraisal of the facts with regard to amount of concealment confronted and actually added by the ITO. It was submitted that for three assessment years under appeal the ITO vide his notice under section 62 dated 10-10-1993 had required the assessee to show cause why the addition of undeclared income at Rs.43,807 for the assessment year 1990-91, 8.61,963 for the assessment year 1991-92 and Rs.47,021 for the assessment year 1992-93 should not be made to the income of the assessee as concealed actual profit. However, while framing the assessment the ITO made addition under the heads cash incentives, bonus and also disallowed part of the expenses totalling Rs.130,775 for the assessment year 1990-91, Rs.174,760 for the assessment year 1991-92 and Rs.152,621 for the assessment year 1992-93. As the addition made by the ITO is in excess of what was confronted, it was submitted that he had pleaded for the cancellation of the assessment order. It was submitted now that, in any case, the addition in excess of what was confronted could not be maintained. The perusal of record, however, reveals that the show cause notice referred above issued by the ITO was not produced at the time of first hearing. On enquiry the learned A.R. had submitted that the addition made by the ITO was different from what was confronted and that it was less. The learned A.R. now explains that the amount which was less was the amount confronted and not what was added. Evidence in the form of a copy of notice issued under section 62 referred to above has been filed. It was also submitted that the relevant part of this notice has been re-produced in the impugned order of the learned A. A. C.

4. The submissions made by the learned A.R. being verifiable from the documents referred above, these are accepted. The learned D.R. did not make any statement in this regard. As the original order passed by me, is based on incorrect perusal of facts and some misconception with regard to the statement made at the bar, it is directed that the order of this Tribunal dated 17-2-1998 referred supra is re-called.

5. The applicant has also raised other issues. As the order has been recalled, these issues will also be considered at the time of hearing of appeals. M.B.A./535/Trib. Order accordingly.