ASSISTANT COMMISSIONER OF INCOME TAX -4(1), RAIPUR V. RAVI SHERWANI, RAIPUR

MA 107/RPR/2023

AI Insights

The case involves the Assistant Commissioner of Income Tax-4(1), Raipur, as the applicant, and Ravi Sherwani, the respondent, concerning an assessment year 2013-14. The primary legal issue was the validity of the jurisdiction under which the assessment was made. The original assessment was quashed by the Tribunal due to the notice under section 143(2) being issued by a non-jurisdictional officer. The Revenue's miscellaneous application sought to challenge this decision, arguing that the Tribunal had not considered a relevant Supreme Court judgment and that the mistake was apparent from the record, thus rectifiable under section 254(2) of the Income Tax Act. However, the Tribunal dismissed the application, maintaining that the original decision was correct and the assessment invalid due to jurisdictional errors.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 839072 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-02-2026
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 08-11-2023
• Other Referred Cases: DCIT(Exemption) Vs. Kalinga Institute of Industrial Technology, ACIT vs. Saurashtra Kutch Stock Exchange Ltd., CIT vs. Reliance Telecom Limited & Anr, Mepco Industries Ltd. Vs. CIT, Checkmate Services Pvt. Ltd. vs CIT, Ashok Textiles vs. ITO, Saurashtra Kutch Stock Exchange Ltd. vs. ACIT, Pavan Morarka Vs. ACIT-2, (2022) 136 taxmann.com 2 (Bombay), MI Builders (P) Ltd. (2014) 349 ITR 271 (Allahabad), Harish Kumar Chhabada vs. Pr.CIT, T.S. Balram v. M/s.Volkart Brothers, Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, Deva Metal Powders (P) Ltd. vs. Commissioner, Trade Tax, UP, CIT vs. Smt. Aruna Luthra, CIT vs. Ashok Textiles, CIT vs. Hero Cycles (P) Ltd., CIT vs. Saurashtra Kutch Stock Exchange Ltd., CIT vs. Reliance Telecom Limited & Anr, CIT vs. Checkmate Services Pvt. Ltd., CIT vs. M/s. Adarsh Rice Mill, CIT vs. Pavan Morarka, CIT vs. Mepco Industries Ltd., CIT vs. S.A.L Narayana Row, CIT vs. Model Mills Nagpur Ltd., CIT vs. Mysore Cements Ltd., CIT vs. Jiyajeerao Cotton Mills Ltd., CIT vs. Ashok Devichand Jain, CIT vs. P.T. Manuel & Sons, CIT vs. Lakshmi Sugar Mills Co Ltd., CIT vs. Cherian Abraham, CIT vs. CIT (IT-4) vs. Reliance Telecom Limited, CIT vs. Checkmate Services Pvt. Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RESPONDENTS AT NO.; RESPONDENTS AT NOS.; HAD; PRIYANKA PATEL; PRIYANKA PATEL; PRIYANKA PATEL; PRIYANKA PATEL
• Assessee Lawyers: SUNIL KUMAR AGRAWAL; SUNIL KUMAR AGRAWAL; SUNIL KUMAR AGRAWAL; SUNIL KUMAR AGRAWAL
• Keywords: Set aside; Difference of opinion; Change of opinion; Retrospective amendment; Business expenditure; Question of law; Unexplained cash credit; Capital receipt; Period of limitation; Search and seizure; Rectification of order; Deemed to accrue or arise in india
• Section: 147; 148; 144; 143(3); 142(1); 154; 139; 43B; 260A

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ रायपुर मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER AND SHRI AVDHESH KUMAR MISHRA, ACCOUNTANT MEMBER M.A. No.107/RPR/2023 (Arising out of ITA No.64/RPR/2020) Ǔनधा[रण वष[/Assessment Year : 2013-14 The Assistant Commissioner of Income Tax-4(1), Raipur (C.G.) ……….. आवेदक/Applicant बनाम / V/s. Ravi Sherwani H-26, Rajeev Nagar, Raipur (C.G.)-492 001 PAN: AZBPS6703J ……Ĥ×यथȸ / Respondent Assessee by : Shri Sunil Kumar Agrawal, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 20.02.2026 घोषणा कȧ तारȣख / Date of Pronouncement : 20.02.2026 Printed from counselvise.com 2 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM: Consequential order giving effect to the order passed by the Third Member. 2. The captioned miscellaneous application was heard by the \"Division Bench\" on 09.05.2025. However, on account of difference of opinion between the Judicial Member and the then Accountant Member, a reference u/s. 255(4) of the Income Tax Act, 1961 (for short 'the Act') was made to the Hon'ble President of the Tribunal for referring the matter to a Third Member to decide the respective questions formulated by the Members. 3. The Hon'ble Vice-President (P/Z) [as a Third Member] vide his order dated 04.02.2026 has concurred with the findings recorded by the Judicial Member in dismissing the miscellaneous application filed by the Revenue. 4. In view of the majority opinion, the miscellaneous application filed by the Revenue is dismissed. Printed from counselvise.com 3 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 5. In the result, the miscellaneous application of the Revenue is dismissed. Order pronounced in the open court on 20th February, 2026. Sd/- Sd/- AVDHESH KUMAR MISHRA PARTHA SARATHI CHAUDHURY (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायपुर/ RAIPUR ; Ǒदनांक / Dated : 20th February, 2026. SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ /The Appellant. 2. Ĥ×यथȸ /The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G.) 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, रायपुर बɅच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 5. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. Printed from counselvise.com 4 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R.K. PANDA, VICE PRESIDENT (AS THIRD MEMBER) MA No.107/RPR/2023 (arising out of ITA No.64/RPR/2020) Assessment Year : 2013-14 Ravi Sherwani H-26, Rajeev Nagar, Raipur – 492001 PAN: AZBPS6703J Vs. DCIT-1(1), Raipur Appellant Respondent ORDER On account of difference of opinion between the Hon’ble Members constituting the Division Bench while deciding the MA, the Hon’ble President vide order dated 10.09.2025 has nominated me as the Third Member to decide the questions separately framed by the Hon’ble Members as per the provisions Assessee by Shri Sunil Kumar Agrawal Revenue by Dr. Priyanka Patel, Sr. DR Date of hearing 13-11-2025 Date of pronouncement 04-02-2026 Printed from counselvise.com 5 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 of section 255(4) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). 2. Facts of the case, in brief, are that the assessee is an individual and engaged in wholesale & retail trading of tiles, marbles etc. He filed his return of income for the impugned assessment year on 29.03.2014 declaring total income of Rs.19,12,120/-. The case was selected for scrutiny through CASS. A notice u/s 143(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) was issued by the ITO-1(3), Raipur on 08.09.2014. Due to reallocation of jurisdiction vide order dated 15.11.2014 the case of the assessee was transferred from ITO-1(3), Raipur to ACIT-3(1), Raipur. A notice u/s 142(1) of the Act was issued to the assessee calling for certain information on 08.05.2015. However, the same was not complied with by the assessee. Due to change of incumbent, fresh notices u/s 142(1) of the Act dated 05.08.2015, 26.08.2015, 14.08.2015 and 02.09.2015 were issued to the assessee. The same were also remained un-complied with by the assessee. However, the assessee had participated in the assessment proceedings in compliance to the notice dated 08.02.2016 issued u/s 142(1) of the Act. The Assessing Officer i.e. ACIT, Circle 4(1), Raipur completed the assessment u/s Printed from counselvise.com 6 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 143(3) of the Act on 29.03.2016 determining the total income of the assessee at Rs.2,30,14,131/- by re-computing the capital gain at Rs.1,22,61,461/- on account of long term capital gain and making addition of Rs.1 crore on account of unexplained cash credit. 3. The assessee filed an appeal before the Ld. CIT(A) challenging the addition on merit but without any success. Thereafter, the assessee filed an appeal before the Tribunal challenging the order of the Ld. CIT(A) wherein he took an additional ground before the Tribunal which reads as under: \"On the facts and circumstances of the case and in law, assessment made u/s.143(3) dt.29-2-16 by ACIT-4(1) is invalid, since notice issued u/s.143(2) by the ITO-1(3) on 8-9-14, who was not having pecuniary Jurisdiction over the assessee to make assessment for A.Y.2013-14 as per CBDT Instruction No.1/2011 dt.31-1-11, since 'returned income’ shown at Rs.19,12,120/-; in absence of a valid notice issued u/s.143(2) by the 'Jurisdictional AO', assessment made u/s.143(3) would be Invalid, bad in law, non-est and is liable to be quashed.\" 4. The Tribunal decided the additional ground in favour of the assessee by holding that since the assessment framed in the present case by the ACIT, Circle 4(1), Raipur vide order u/s 143(3) dated 29.03.2016 on the basis of a notice issued by the ITO, 1(3), Raipur i.e. non-jurisdictional Assessing Officer, therefore, the same is devoid and bereft of any force of law and is Printed from counselvise.com 7 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 liable to be struck down. Accordingly, the Tribunal quashed the order passed by the ACIT, Circle 4(1), Raipur u/s 143(3) dated 29.03.2016 for want of valid assumption of jurisdiction. Since the Tribunal decided the legal issue, the Tribunal did not adjudicate the grounds on merit. 5. Subsequently the Revenue filed an MA by raising the following grounds: 1. In this case of DCIT(Exemption) Vs. Kalinga Institute of Industrial Technology assessee filed a Writ Petition before Hon'ble High Court of Odisha thereby challenging Notice u/s 143(2) of the Act issue by ACIT (Corporate Circle)-1(2), Bhubaneshwar as without Jurisdiction. Hon'ble High Court allowed the said Writ Petition and Set-Aside the assessment on the ground that jurisdictional officer had not adjudicated upon return as jurisdiction had been changed after returns were filed. However, records reveal that the assessee had participated pursuant to notice issued u/s 142(1) of the Act had not questioned jurisdiction of AO. Hon'ble Supreme Court on filing of SLP by the department vide SLP Appeal (C) No(5) 29304 of 2019 allowed the same in the following terms: (a) The Jurisdiction had been changed after the returns were filed. However, the records also reveals that the assessee had participated pursuant to the notice issued under section 142(1) and had not questioned the jurisdiction of the Assessing Officer. Section 124(3)(a) precludes the assessee from questioning the jurisdiction of the Assessing Officer, if he does not do so within 30 days of receipt of notice under section 142(1). (b) in the present case, the facts did not warrant the order made by the High Court. At the same time, this Court notices that the High Court had granted liberty to the concerned authority to issue appropriate Printed from counselvise.com 8 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 notice. It is clarified, therefore, that the Assessing Officer is free to complete the assessment (in case the assessment order has not been issued) within the next 60 days. In such event, the question of limitation shall not be raised by the assessee. (c) The special leave petition is allowed in the above terms.\" On perusal of the case record of Shri Ravi Sherwani, PAN AZBPS6703J-AY-2013-14 the following facts emerged: (a) The return of income was filed on 29/03/2014 for Rs.19,12,120/- before ITO-1(3), Raipur with address Dhamtari Road, Ring Road No.1, Raipur (CG). (b) The case was selected for scrutiny through CASS and notice u/s 143 was automatically generated by Systems and was issued on 08/09/2014. (c) As per letter dated 08/05/2015, assessee was communicated about timely issue of notices u/s 143(2) and 142(1). (d) Notice u/s 143(2) was issued by ACIT-3(1), Raipur on 12/06/2015. (e) Notice u/s 143(2) was again issued by ACIT-4(1), Raipur on 11/01/2016. (f) Assessee complied with the notices and never objected about the jurisdiction. (g) As per Notification dated 14/11/2014 the return address of the assessee falls in the jurisdiction of Range-4, Raipur. The facts of the case of Shri Ravi Sherwani, PAN AZBPS6703J- AY- 2013-14 being similar to that of DCIT(Exemption) Vs. Kalinga Institute of Industrial Technology, the judgement pronounced by Hon'ble Supreme Court is squarely applicable in the case of the assessee Shri Ravi Sherwani also. 2. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order for want of valid assumption of jurisdiction on the part of AO holding that Printed from counselvise.com 9 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Notice u/s 143(2) was initially issued by ITO-1(3), Raipur without having pecuniary Jurisdiction and final assessment order was passed by ACIT-4(1), Raipur without having issued notice u/s 143(2) of the IT Act in the case. 3. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order by admitting the additional ground of appeal raised by the assessee for the first time before ITAT and not considered other grounds of appeal on merit which are based on facts of the case. The adjudication of the additional ground raised involves purely a question of law. 4. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order where additional ground of grievance against Assessing Officer's order was not raised before Commissioner (Appeals) thus raising of additional ground before Tribunal was not sustainable. 5. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order where in second round of appeal, Issue before Ld. CIT(A) was only with regard to addition on account of unexplained deposit in bank account and claim of cost of improvement, assessee could not be allowed to raise additional ground before Tribunal regarding non-compliance of section 143(2) and valid assumption of jurisdiction in contravention to the provisions of Sec. 124(3)(a) of the IT Act. 6. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order as conduct of assessee by not raising the issue of Jurisdiction before Commissioner (Appeals) clearly showed that assessee agreed to assumption of jurisdiction by Assessing Officer under section 143(2), additional ground raised by assessee before Tribunal on issue of jurisdiction under section 143(2) could not be admitted. 7. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order by holding that Sec.124 was only about territorial Jurisdiction and not about the pecuniary Jurisdiction, whereas Sec. 124(1) clearly refers to Sec.120(1) and Sec.120(2) of the Act which, in turn, specify about the Printed from counselvise.com 10 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 jurisdiction based on both territorial area as well as the income or classes of income, thus, causing a grave miscarriage of Justice. 8. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order as notice issued under section 143(2) did not suffer from any legal infirmity as it satisfied all ingredients under that provisions of the IT Act. 9. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order where on the basis of return of income filed by assessee himself, pecuniary jurisdiction over the case gets vested with Assessing Officer [ACIT- 4(1), Raipur] who completed assessment, despite notice issued under section 143(2) by ITO-1(3), Raipur having original territorial jurisdiction and assessee did not raise objection to jurisdiction of said Assessing Officer within time allowed under section 124(3)(a) of the Act; and no fault could be found with said Assessing Officer in assuming jurisdiction and completing assessment. 10. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order since Assessing Officer [ITO-1(3), Raipur) was having territorial jurisdiction over assessee, pecuniary limit fixed for the purpose of distribution of work between officers, would not mean that there shall be inherent lack of jurisdiction of the Assessing Officer in issuing Notice u/s 143(2) of the IT Act, although final assessment was completed by the AO who had pecuniary jurisdiction over the case. 11. Any other ground which may be adduced at the time of hearing. 6. The Hon’ble Judicial Member dismissed the MA filed by the Revenue on the ground that at the time of hearing of the appeal by the Tribunal, the judgment of Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology reported in (2023) 151 taxmann.com 434 (SC) was not referred to by the Revenue. Further, the Printed from counselvise.com 11 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Tribunal while deciding the issue has followed the orders of the Co-ordinate Bench of the Tribunal in the cases of Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019 order dated 12.12.2022 and Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022 order dated 28.12.2022 whose correctness can only be decided in the appellate forum before the Hon’ble High Court. While doing so, he referred to the decision of the Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 305 ITR 227 (SC) wherein it has been held that non-consideration of decision of Hon’ble Supreme Court or High Court can be a mistake apparent from record rectifiable u/s 254(2) of the Act. At the same time he also relied on the decision of the Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited & Anr reported in (2022) 440 ITR 1 (SC) where it has been held that the powers u/s 254(2) are only to correct and or rectify a mistake apparent from record and not beyond that. Further, he also held that the facts in the case of DCIT (Exemption) & Ors vs. Kalinga Institute of Industrial Technology (supra) are neither absolutely similar nor substantially identical. 7. However, the Hon’ble Accountant Member did not agree with the order passed by the Hon’ble Judicial Member in the MA. He was of the opinion Printed from counselvise.com 12 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 that the issue of validity of jurisdiction by the Assessing Officer was not challenged by or questioned by the assessee within the stipulated time of 30 days or one month as per mandate of section 124(3)(a) of the Act and therefore, the assessee shall be precluded from questioning the jurisdiction of the Assessing Officer in view of the decision of Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology reported in (2023) 151 taxmann.com 434 (SC). He held that the judgment of Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors vs. Kalinga Institute of Industrial Technology (supra) has a significant relevance but was not considered by the Tribunal in the impugned order, therefore, it is a mistake apparent on record to be rectified u/s 254(2) of the Act in terms of binding law laid down by the Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 305 ITR 227 (SC). He accordingly allowed the MA filed by the Revenue. 8. In view of the above difference of opinion, the following questions were framed for adjudication before me: “Questions framed by the Hon’ble Accountant Member: 1. Whether the impugned order in present case passed by the Tribunal dated 29.05.2023 suffering with a mistake apparent from record Printed from counselvise.com 13 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 amenable for rectification u/s 254(2) of the Act as held by the Hon'ble Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC)?, whereas the tribunal had placed reliance on its own decisions in the case of (i) Durga Manikanta Traders vs. ITO, ITA No.59/RPR/2019, dated 12.12.2022 and (ii) Chowaram Dhiwar vs. ITO, ITA No. 31/RPR/2022, without considering the judgment of the Hon'ble Supreme Court in the case of DCIT(Exemption) vs. Kalinga Institute of Industrial Technology reported in [2023] 151 taxmann.com 434 (SC)[01-05-2023] which has a direct nexus with the issue in hand qua the assessee's entitlement to raise the question regarding the validity of jurisdiction of AO in terms of provisions of section 124(3)(a) r.w.s. 142(1) and section 120 of the Income Tax act, 1961. 2. Whether contemplation on facts and issues of the case to check the applicability of a judgment of the Hon'ble Apex Court or jurisdictional High Court to arrive at the conclusion that there is a mistake apparent from records or not, when such order of Hon'ble Courts was missed to be considered by the tribunal but later brought on reference by the revenue through a Miscellaneous Application, would constitute review of the tribunal's own order, which exceeds the exercise of jurisdiction by the tribunal u/s 254(2) of the Income Tax Act? 3. Whether the Miscellaneous Application filed by the revenue seeking recalling of tribunal's impugned order to consider the judgment of Hon'ble Apex Court in the case of DCIT(Exemption) vs. Kalinga Institute of Industrial Technology reported in [2023] 151 taxmann.com 434 (SC) (01-05-2023] having the categorical finding on the issue of assessee's entitlement to raise the question on validity of jurisdiction of AO, can be overlooked in the garb of limitation of tribunal as per provisions of section 254(2) of the Income Tax Act 1961, whereas Hon'ble Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC) has clearly held that non-consideration of a decision of the Jurisdictional High Court or of Hon’ble Supreme court can be said to be a mistake to be 'apparent from the records' which could be rectified under section 254(2) of the Act? Questions framed by the Hon’ble Judicial Member: Printed from counselvise.com 14 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 1. Whether the Tribunal was correct in its reliance placed on the decisions in the cases of Durga Manikanta Traders Vs. ITO, ITA No. 59/RPR/2019, dated 12.12.2022 and Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022, dated 28.12.2022 while determining the facts of the case? 2. Whether the contention of the Department that the Tribunal should have relied on the judgment of the Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology (2023) 151 taxmann.com 434 (SC) wherein the facts and circumstances are substantially dissimilar with the case of the assessee, while determining such applicability vis-à-vis facts in the case of the assessee would tantamount to and result in exceeding jurisdiction u/s. 254(2) of the Income Tax Act, 1961 (for short ‘the Act’) for the fact that so to consider the applicability of the said decision shall amount to review of its own order? 3. Whether applicability or non-applicability of a particular decision by the Tribunal while determining the facts and issues in the case of the assessee can be termed as “mistake apparent from record” so to stand within the jurisdiction of Section 254(2) of the Act? 9. The Ld. DR strongly relied on the order of the Hon’ble Accountant Member. She submitted that the assessee filed the return of income for the impugned assessment year on 29.03.2014 declaring total income of Rs.19,12,120/-. The first notice u/s 143(2) of the Act dated 08.09.2014 was issued by the ITO-1(3), Raipur. Subsequently due to restructuring / re- allocation of territorial jurisdiction as per Board’s notification No.1/2014-15 dated 15.11.2014 issued by the JCIT, Range-3, Raipur, the case was transferred from ITO-1(3), Raipur to ITO-3(1), Raipur. Thereafter because of Printed from counselvise.com 15 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 the monetary limit, the case was transferred to the ACIT-3(1), Raipur who issued notice u/s 143(2) of the Act on 12.06.2015. Subsequently again due to the restructuring, the case was transferred to the ACIT-4(1), Raipur, who again issued notice u/s 143(2) of the Act on 11.01.2016 and thereafter passed the order u/s 143(3) of the Act on 29.03.2016. Throughout the proceedings the assessee has never challenged the validity of jurisdiction in terms of provisions of section 124(3)(a) r.w.s. 142(1) and 120 of the Income Tax Act, 1961. 10. Referring to the provisions of section 127(4) of the Act, she submitted that as per the said provisions, the transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred. 11. Referring to the provisions of section 129 of the Act, she submitted that as per the said provisions, whenever in respect of any proceeding under this Act an Income-tax authority ceases to exercise jurisdiction and is succeeded by another who has and exercises jurisdiction, the Income-tax authority so Printed from counselvise.com 16 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 succeeding may continue the proceeding from the stage at which the proceeding was left by his predecessor. She accordingly submitted that if the first notice u/s 143(2) of the Act is validly issued for which no objection has been raised by the assessee, then the subsequent notices issued u/s 143(2) of the Act makes no difference. She submitted that once the first notice was issued in time, the Assessing Officer already had full jurisdiction. The subsequent transfers have been based on notification dated 15.11.2014 which implemented the cadre restricting. Therefore, there is no prejudice caused to the assessee. 12. She submitted that the concurrent jurisdiction vests with the ITO as well as the ACIT, therefore, the assessment cannot be annulled simply because the statutory notice u/s 143(2) of the Act was issued by the ITO and the assessment was completed by the ACIT. 13. Referring to the provisions of section 143(2) of the Act, she submitted that no notice u/s 143(2) of the Act shall be served on the assessee after the expiry of six months from the end of the financial year in which the return was furnished. However, in the present case, the assessee filed the return of income on 29.03.2014 and the financial year ended on 31.03.2014. Therefore, Printed from counselvise.com 17 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 the time available to issue notice u/s 143(2) of the Act was upto 30.09.2014 and the Assessing Officer issued the notice u/s 143(2) of the Act to the assessee on 08.09.2014 which is within the time limit prescribed under the Act. 14. Referring to the provisions of section 292BB of the Act introduced by the Finance Act, 2008, she submitted that the said provision gave immunity to the Department by applying the principle of Estoppel in cases where an assessee has appeared or co-operated in any proceeding relating to an assessment or re-assessment, it shall be deemed that any notice required to be served upon him, has been duly served in time and such assessee shall be precluded from taking any objection against the same except before completion of assessment. For the above proposition, she relied on the following decisions: i) Rajbir Singh, Karta of Ch. Kesho Dass (HUF) [TS-5881-HC- 2010(Punjab)] ii) Josh Builders & Developers (P.) Ltd. Vs. PCIT (2016) 389 ITR 314 (P&H) iii) PCIT vs. Mega Corporation vide ITA No.128/2016, order dated 01.08.2007 Printed from counselvise.com 18 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 15. The Ld. DR submitted that the decision of Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology reported in (2023) 151 taxmann.com 434 (SC) is squarely applicable to the facts of the present case. 16. Referring to the decision of the Co-ordinate Bench of the Tribunal in the case of ACIT vs. S.S. Flexi Pack Private Limited vide M.A. No.37/RPR/2023, order dated 02.06.2023 the Ld. DR drew the attention of the Bench to para 9 of the order and submitted that the Tribunal has recalled the order after the decision of Hon’ble Supreme Court in the case of checkmate services Pvt. Ltd. vs CIT reported in (2022) 448 ITR 518 (SC) was pronounced on 12.10.2022. 17. Referring to the decision of Hon’ble Chhattisgarh High Court in the case of Harish Kumar Chhabada vs. Pr.CIT vide TaxC No.138 of 2023, order dated 08.10.2025, Ld. DR drew the attention of the Bench to para 21 of the order which reads as under: “21. As such, from the aforesaid discussion, it is quite vivid that the appellant/assessee was served with notice under Section 143(2) of the IT Act on 8-8-2013, which was served upon him on 21-8-2013 and he did not raise objection qua jurisdiction of the Assessing Officer till his appeal was decided Printed from counselvise.com 19 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 by the CIT (Appeals) on 14-7-2016. The assessee also did not raise any objection regarding jurisdiction upon completion of his assessment. As such, the plea with regard to territorial jurisdiction of the ITO was barred by virtue of Section 124(3)(a) of the IT Act. Even otherwise, by the notification dated 15-11-2014, the territorial reallocation of wards at Raipur was undertaken and thus by operation of law, validly, the ITO, Ward-2(1), Raipur has been conferred with the jurisdiction after reallocation of wards. Therefore, the ITAT is absolutely justified in not entertaining the question with regard to jurisdiction of the AO.” 18. Referring to the decision of Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 305 ITR 227 (SC), she submitted that non-consideration of a decision of Hon’ble jurisdictional High Court or Hon’ble Supreme Court is a mistake apparent on record which can be rectified u/s 254(2) of the Act. She submitted that although the said decision was not cited at the time of hearing of the case, however, the decision was available before passing of the order. Therefore, a mistake has crept in the order of the Tribunal by not following the binding decision of Hon’ble Supreme Court. Since the Tribunal in the instant case has passed the impugned order without considering this judgment, therefore, the decision of Hon’ble Accountant Member should be upheld and the MA filed by the Revenue be allowed. Printed from counselvise.com 20 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 19. The Ld. Counsel for the assessee on the other hand heavily relied on the order of the Hon’ble Judicial Member. He submitted that when the Assessing Officer i.e. ITO-1(3), Raipur issued notice u/s 143(2) of the Act, he had no jurisdiction over the assessee because of the monetary limit. By the time the ACIT-3(1), Raipur issued notice u/s 143(2) of the Act on 12.06.2015, more than six months period has elapsed from the end of the relevant financial year in which the return was filed and therefore, such notice issued u/s 143(2) of the Act by the ACIT-3(1), Raipur is an invalid one. Similarly, the second notice issued u/s 143(2) of the Act by the ACIT-4(1), Raipur dated 11.01.2016 is also invalid since it is issued beyond a period of six months from the end of the relevant financial year. He submitted that the Tribunal after considering various submissions made by the assessee and relying on various decisions of the Co-ordinate Bench of the Tribunal has passed a detailed speaking order considering the first notice issued u/s 143(2) of the Act by the ITO-1(3), Raipur as beyond jurisdiction and the subsequent notice issued u/s 143(2) of the Act by the ACIT-3(1), Raipur as invalid being beyond the stipulated period of 6 months from the end of the relevant assessment year. He submitted that the scope of section 254(2) of the Act is very limited and since the Hon’ble Judicial Member has passed a speaking order relying on various Printed from counselvise.com 21 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 decisions including the decision of Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited & Anr reported in (2022) 440 ITR 1 (SC), therefore, the same being in order should be upheld. 20. So far as the argument of the Ld. DR that the provisions of section 292BB of the Act will take care of the defect, if any, is concerned, he submitted that the Hon’ble Allahabad High Court in the case of CIT vs. Salarpur Cold Storage (P.) Ltd. reported in (2014) 50 taxmann.com 105 (All) has held that failure to issue a notice under section 143(2) within prescribed period cannot be cured by taking recourse to section 292BB of the Act. 21. Referring to the decision of Hon’ble Karnataka High Court in the case of PCIT vs. Cherian Abraham reported in (2022) 444 ITR 420 (Kar), he submitted that the Hon’ble High Court in the said decision has held that failure of the Assessing Officer in issuing notice within period of limitation under section 143(2), which is a notice giving jurisdiction to the Assessing Officer to frame assessment, cannot be condoned by referring to section 292BB of the Act. Printed from counselvise.com 22 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 22. Referring to the decision of Hon’ble Supreme Court in the case of DCIT vs. Travel Designer India (P.) Ltd. reported in (2025) 482 ITR 283 (SC), he submitted that the Hon’ble Supreme Court in the said decision has dismissed the SLP filed by the Revenue against the decision of Hon’ble Gujarat High Court where the Hon’ble Gujarat High Court has held that the limitation for issue of notice u/s 143(2) of the Act would be six months from the end of the relevant financial year in which the return u/s 139(1) came to be filed. The assessee in that case filed its return of income under sub-section (1) of section 139 on 29.11.2016. Since the return was defective, the assessee was called upon to remove such defect which came to be removed on 19.07.2017 that was within time allowed by the Assessing Officer. Thereafter, the Assessing Officer issued notice u/s 143(2) of the Act on 11.08.2018. The Hon’ble High Court has held that section 139(9) of the Act does not require the assessee to file a fresh return of income, but requires the assessee to remove defects in original return of income filed by him within time provided therein, thus, date of filing of original return u/s 139(1) has to be considered for the purpose of computing period of limitation under sub-section (2) of section 143 and not date on which defects actually came to be removed. The Hon’ble High Court further held that upon such defects being removed, return would relate back to Printed from counselvise.com 23 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 date of filing of original return i.e. 29.11.2016 and consequently, limitation for issuance of notice u/s 143(2) would be 30.09.2017 i.e. six months from the end of financial year in which return u/s 139(1) of the Act came to be filed. Accordingly the Hon’ble High Court has held that the notice issued u/s 143(2) of the Act having been issued on 11.08.2018 was beyond period of limitation and therefore, could not be sustained. 23. Referring to the decision of Hon’ble Supreme Court in the case of Deva Metal Powders (P) Ltd. vs. Commissioner, Trade Tax, UP reported in (2008) 2 SCC 439, the Ld. Counsel for the assessee drew the attention of the Bench to para 15 of the said order and submitted that the Hon’ble Supreme Court in the said decision has held that the plain meaning of the word “apparent” is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications. 24. Referring to the decision of Hon’ble Supreme Court in the case of Commissioner of Central Excise vs. RDC Concrete (India) Pvt Ltd reported in Printed from counselvise.com 24 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 (2011) 12 SCC 166, he drew the attention of the Bench to para 21 of the order and submitted that the Hon’ble Supreme Court in the said decision has held that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. The Hon’ble Supreme Court further held that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 25. Referring to the decision of Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited & Anr (supra), he submitted that the Hon’ble Supreme Court in the said decision has held that if the assessee was of the opinion that the order passed by ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the assessee was to prefer the appeal before the High Court. 26. So far as the decision relied on by the Revenue in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology (supra) is concerned, he submitted that there is no law laid down in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology (supra). Printed from counselvise.com 25 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 The facts in that case are distinguishable and not substantially identical to the facts of the present case. Further, the decision was rendered by the Hon’ble Supreme Court on 01.05.2013. However, it was not available on the date of hearing of the appeal before the Tribunal which was on 24.04.2023. Therefore, when a decision was not available on the date of hearing for which it was not cited during the hearing cannot be the basis for rectification u/s 254(2) of the Act on subsequent pronouncement. Further in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology (supra), the Hon’ble Supreme Court has applied only section 124(3)(a) of the Act in the given set of facts. In that case return of income u/s 139(1) of the Act was filed with the ACIT, Corporate Circle 1(2) and thereafter the jurisdiction was changed to the ACIT(Exemption) and thereafter the assessment was made by the ACIT(Exemption) u/s 143(3) dated 30.12.2016. The Revenue has filed an affidavit before the Hon’ble Orissa High Court stating that the jurisdiction over the assessee is validly vested with the Circle on the day of filing of the return and the jurisdiction was changed after filing of the returns. Accordingly, having proper jurisdiction over the assessee the assessment u/s 143(3) for A.Y. 2014-15 was completed on 30.12.2016. However, in the Printed from counselvise.com 26 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 instant case, the Assessing Officer i.e. ITO-1(3), Raipur had no jurisdiction over the assessee when he issued the notice u/s 143(2). 27. Referring to the decision of Ranchi Bench of the Tribunal in the case of Amar Pratap Singh vide ITA No.357/RAN/2017, order dated 29.07.2024, he submitted that the Tribunal has distinguished the facts in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology (supra). 28. Similarly, the Kolkata Bench of the Tribunal in the case of Raghvendra Mohta vide ITA No.2416/Kol/2017, order dated 08.04.2024 has also distinguished the decision on facts which has been affirmed by the Hon’ble Calcutta High Court. He submitted that change in law or a subsequent decision / judgment of a Co-ordinate Bench or a Larger Bench by itself cannot be regarded as a ground of review on the basis of a subsequent decision of the superior court. 29. The Ld. Counsel for the assessee referring to the decision of Hon’ble Bombay High Court in the case of Vaibhav Maruti Dombale vs. ACIT reported in (2025) 178 taxmann.com 447 (Bom) submitted that the Hon’ble Printed from counselvise.com 27 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 High Court in the said decision has held that a subsequent ruling of a Court cannot be a ground for invoking provisions of section 254(2) of the Act. The Hon’ble High Court has held that the provisions of section 254(2) of the Act can be invoked with a view to rectify any mistake apparent from the record. Relying on various decisions placed in the paper book, he submitted that since the Hon’ble Judicial Member has elaborately discussed the issue and has dismissed the MA filed by the Revenue, therefore, the same being in accordance with law should be upheld and the MA filed by the Revenue be dismissed. 30. I have carefully perused the record and gone through the orders of both the Hon’ble Members. I have also gone through the various decisions placed before me. I find the Assessing Officer in the instant case passed the order u/s 143(3) of the Act on 29.03.2016 determining the total income of the assessee at Rs.2,30,14,130/- as against the returned income of Rs.7,52,670/- by re- computing the capital gain at Rs.1,22,61,461/- on account of long term capital gain and made addition of Rs.1 crore on account of unexplained cash credit. I find in appeal the Ld. CIT(A) upheld the addition made by the Assessing Officer. The assessee filed an appeal before the Tribunal and in the said Printed from counselvise.com 28 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 appeal the assessee, apart from challenging the addition on merit, raised an additional ground challenging the validity of the assessment on account of absence of a valid notice issued u/s 143(2) of the Act by the jurisdictional Assessing Officer. 31. I find the Tribunal considered the chronology of events and noted that the notice u/s 143(2) of the Act was issued by the ITO-1(3), Raipur on 08.09.2014. Subsequently the case of the assessee was transferred from the ITO-1(3), Raipur to the ACIT-3(1), Raipur and thereafter to the ACIT-4(1), Raipur. Since the ACIT-4(1), Raipur and prior to him, the ACIT-3(1), Raipur have issued notices u/s 143(2) of the Act which were beyond a period of six months from the end of the relevant financial year in which the return was filed, therefore, such notices were invalid. While doing so, the Tribunal has relied on the decisions of the Co-ordinate Bench of the Tribunal in the cases of Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019 order dated 12.12.2022 and Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022 order dated 28.12.2022 and held that as the assessment framed in the present case by the ACIT, Circle-4(1), Raipur vide order u/s.143(3) dated 29.03.2016 on the basis of notice u/s 143(2) issued by the ITO-1(3), Raipur i.e. a non- Printed from counselvise.com 29 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 jurisdictional A.O is devoid and bereft of any force of law. Accordingly, the Tribunal allowed the additional ground and quashed the assessment for want of valid assumption of jurisdiction. 32. Subsequently the Revenue filed an MA on the ground that the Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors vs. Kalinga Institute of Industrial Technology (supra) has held that the assessee had participated in the assessment proceedings pursuant to notice issued u/s 142(1) of the Act and had not questioned the jurisdiction of the Assessing Officer. Section 124(3)(a) precludes the assessee from questioning the jurisdiction of the Assessing Officer, if he does not do so within 30 days of receipt of notice under section 142(1). The facts of the in the instant case are similar to that of DCIT (Exemption) & Ors vs. Kalinga Institute of Industrial Technology (supra), therefore, the judgment pronounced by the Hon’ble Supreme Court is squarely applicable and therefore, mistake has crept in the order of the Tribunal which calls for rectification. 33. I find the Hon’ble Judicial Member dismissed the MA filed by the Revenue on the ground that at the time of hearing the judgment of Hon’ble Printed from counselvise.com 30 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Supreme Court in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology reported in (2023) 151 taxmann.com 434 (SC) was not referred to by the Revenue. Further, the Hon’ble Judicial Member while deciding the issue has followed the orders of the Tribunal in the cases of Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019 order dated 12.12.2022 and Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022 order dated 28.12.2022 whose correctness can only be decided in the appellate forum before the Hon’ble High Court. While doing so, he also considered the decision of the Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 305 ITR 227 (SC) wherein it has been held that non-consideration of decision of Hon’ble Supreme Court or High Court can be a mistake apparent from record rectifiable u/s 254(2) of the Act. At the same time the Hon’ble Supreme Court in a later decision in the case of CIT vs. Reliance Telecom Limited & Anr reported in (2022) 440 ITR 1 (SC) has held that the powers under section 254(2) are only to correct and / or rectify a mistake apparent from record and not beyond that. Further, he has given a finding that the facts in the case of DCIT (Exemption) & Ors vs. Kalinga Institute of Industrial Technology (supra) are neither absolutely similar nor substantially identical. Printed from counselvise.com 31 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 34. I find the Hon’ble Accountant Member while allowing the MA filed by the Revenue relied on the decision of Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors. Vs. Kalinga Institute of Industrial Technology (supra) and the provisions of section 124(3)(a). According to him, the judgment of Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors vs. Kalinga Institute of Industrial Technology (supra) has a significant relevance but was not considered by the Tribunal in the impugned order, therefore, it is a mistake apparent on record to be rectified u/s 254(2) of the Act in terms of binding law laid down by the Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 305 ITR 227 (SC) wherein the applicability of judgment along with host of judgments have been discussed and deliberated at length, thereby concluded that an order of Hon’ble Apex Court on the subject has retrospective effect unless it is intended that the judgment be given a prospective applicability, thus, non-consideration of an order of Jurisdictional High Court or of the Supreme Court can be said to be a mistake apparent from record. Printed from counselvise.com 32 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 35. I find in the instant case it was argued before the Tribunal that the notice u/s 143(2) of the Act was issued by the ITO-1(3), Raipur who was not vested with the pecuniary Jurisdiction over the case of the assessee to issue the same on 08.09.2014. Further, the ACIT-4(1), Raipur had framed the assessment in the case of the assessee without issuing any notice u/s 143(2) of the Act within the prescribed time period of six months from the end of the financial year in which the return was furnished. Therefore, the assessment so framed by him was liable to be quashed for want of assumption of jurisdiction by him. It was argued that since the ACIT-4(1), Raipur i.e. the officer who was vested with the jurisdiction over the assessee for the year under consideration had assumed jurisdiction to frame the assessment on the basis of notice u/s 143(2) of the Act on 08.09.2014 issued by the ITO-1(3), Raipur i.e. non-jurisdictional officer, therefore, the assessment framed by him vide order u/s 143(3) dated 29.03.2016 could not be sustained and is liable to be struck down. Based on these arguments, the Tribunal, relying on various decisions allowed the additional ground raised before it and quashed the assessment framed u/s 143(3). It is also an admitted fact that on the date of hearing the decision of Hon’ble Supreme Court was not pronounced and therefore, was not cited by either of the parties. Under these circumstances, I have to see as Printed from counselvise.com 33 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 to whether there was any apparent mistake in the order of the Tribunal so as to rectify the same or recall the same u/s 254(2) of the Act. 36. I find the Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited & Anr (supra) while adjudicating the power of the appellate tribunal in exercise of powers u/s 254(2) of the Act has held that if the assessee was of the opinion that the order passed by ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the assessee was to prefer the appeal before the High Court. The Hon’ble Supreme Court has held that the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. The relevant observations of Hon’ble Supreme Court read as under: “3.2. Having gone through both the orders passed by ITAT, we are of the opinion that the order passed by ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 6-9-2013 it appears that ITAT has reheard the entire appeal on merits as if ITAT was deciding the appeal against the order passed by the CIT. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order Printed from counselvise.com 34 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order 47 Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 3.3 In the present case, a detailed order was passed by the Income-tax Appellate Tribunal when it passed an order on September 6, 2013, by which the Income-tax Appellate Tribunal held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the assessee was of the opinion that the order passed by the Income-tax Appellate Tribunal was erroneous, either on the facts or in law, in that case, the only remedy available to the assessee was to prefer the appeal before the High Court, which as such was already filed by the assessee before the High Court, which the assessee withdrew after the order passed by the Income-tax Appellate Tribunal dated November 18, 2016 recalling its earlier order dated September 6, 2013. Therefore, as such, the order passed by the Income-tax Appellate Tribunal recalling its earlier order dated September 6, 2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the Income-tax Appellate Tribunal dated November 18, 2016 recalling its earlier order dated September 6, 2013 is unsustainable, which ought to have been set aside by the High Court.” 37. I find the Hon’ble Supreme Court in the case of Commissioner of Central Excise vs. RDC Concrete (India) Pvt Ltd (supra) has observed as under: “16. Upon perusal of both the orders viz. earlier order dated 4th November, 2008 and order dated 23rd November, 2009 passed in pursuance of the rectification application, we are of the view that the CESTAT exceeded its powers given to it under the provisions of Section 35C(2) of the Act. This Printed from counselvise.com 35 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Court has already laid down law in the case of T.S. Balram v. M/s.Volkart Brothers, 82 ITR 50 to the effect that a \"mistake apparent from the record\" cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been also held that a decision on a debatable point of law cannot be a mistake apparent from the record. If one looks at the subsequent order passed by the CESTAT in pursuance of the rectification application, it is very clear that the CESTAT re-appreciated the evidence and came to a different conclusion than the earlier one. At an earlier point of time, the CESTAT came to a conclusion that the company to which the respondent-assessee sold its goods was an inter-connected company. In the circumstances, according to the CESTAT, the decision of the department to appoint a Cost Accountant to ascertain value of the goods manufactured by the asessee was considered to be just and proper. However, after considering the submissions made in pursuance of the rectification application, the CESTAT came to a different conclusion to the effect that the asessee company and the buyer of the goods were not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. 17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted at an earlier point of time were accepted by the CESTAT after hearing the rectification application. It is strange as to how a particular decision taken Printed from counselvise.com 36 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 by the CESTAT after considering all the relevant facts and submissions made on behalf of the parties was changed by the CESTAT. There was no mistake apparent on record when the CESTAT did not accept a submission of the respondent-assessee to the effect that the officer appointed to value the goods manufactured by asessee should not have been engaged as a cost accountant. 18. We are not impressed by the judgments cited by the learned counsel for the respondent. So far as the judgment delivered in the matter of Saci Allied Products Ltd. v. Commissioner of C. Ex., Meerut, 2005(183) E.L.T 225 (S.C.) is concerned, it pertains to sale of goods by an asessee to an independent and unrelated dealers and its effect on valuation. The said judgment pertains to a transaction with a related person in the State of U.P., at lower price and as such deals with the facts of that particular case. In our opinion, the said judgment would not help the respondent so far as the matter pertaining to rectification is concerned. 19. So far as the judgment delivered in Commissioner of Central Excise, Mumbai v. Bharat Bijlee Limited, (supra) is concerned, this Court held therein that when the Tribunal had totally failed to take into consideration something which was on record, the Tribunal had committed a mistake apparent on the face of the record. In the instant case, the evidence which was on record was duly appreciated by the Tribunal at the first instance but the Tribunal made an effort to re-appreciate the evidence and re- appreciation can never be considered as rectification of a mistake. We are, therefore, of the view that the aforementioned judgment would not help the respondent-assessee. 20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008(221) E.L.T 11 (S.C.), is concerned, there also the Tribunal had not considered certain material which was very much on record and thereby it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different. Printed from counselvise.com 37 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected.” 38. I find the Hon’ble Supreme Court in the case of Deva Metal Powders (P) Ltd. vs. Commissioner, Trade Tax, UP (supra) from para 13 to 15 of the order has observed as under: “13. In our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of Section 22 and, therefore, the High Court was not Justified in holding that there was mistake apparent on the face of the record. In order to bring an application under Section 22, the mistake must be \"apparent\" from the record. Section 22 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from self-evident, it ceases to be an apparent error. It is, no doubt, true that a mistake capable of being rectified under Section 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. 14. As observed by this Court in Master Construction Co. (P) Ltd. v. State of Orissa an error which is apparent from record should be one which is not Printed from counselvise.com 38 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 an error which depends for its discovery on elaborate arguments on questions of fact or law. 15. \"Mistake\" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a Judicious probe into the record from which it is supposed to emanate is discerned. The word \"mistake\" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word \"apparent\" is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications.” 39. In view of the above discussion and considering the fact that the Tribunal while deciding the issue has relied on a plethora of decisions and further considering the fact that the decision of Hon’ble Supreme Court in the case of DCIT (Exemption) & Ors vs. Kalinga Institute of Industrial Technology (supra) was not pronounced by the Hon’ble Supreme Court on the date of hearing for which it was neither cited nor relied, therefore, I am of the considered opinion that no apparent mistake has crept in the order of the Tribunal so as to rectify the same u/s 254(2) of the Act. The only remedy available to the Revenue in my opinion is to approach the Hon’ble High Court Printed from counselvise.com 39 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 in the light of the decision of Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited & Anr (supra). Accordingly, I uphold the order of the Hon’ble Judicial Member who has dismissed the MA filed by the Revenue. 40. In the result, the questions are answered as under: Questions framed by Ld. Accountant Member 1) No. The present order does not suffer with a mistake apparent from record amenable for rectification u/s 254(2). 2. Yes. The present MA filed by the Revenue would constitute review of the Tribunal's order. 3. Yes. The MA filed by the Revenue can be overlooked. Questions framed by the Hon’ble Judicial Member: 1. Yes. The Tribunal was correct in placing reliance on the decisions of the Co-ordinate Bench. Printed from counselvise.com 40 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 2. No. The contention of the Department is incorrect as it will amount to review of its own order by the Tribunal. 3. No. Applicability or non-applicability of a particular decision in the given circumstances cannot be termed as a “mistake apparent from record”. 41. In the result, I concur with the finding recorded by Ld. Judicial Member dismissing the M.A. filed by the Revenue. 42. In the light of the above discussion, the matter shall now be placed before the regular Bench for passing order in accordance with the majority view. Sd/- (R.K. PANDA) VICE PRESIDENT पुणे Pune; Ǒदनांक Dated : 4th February, 2026 GCVSR आदेश की Ůितिलिप अŤेिषत/Copy of the Order is forwarded to: Printed from counselvise.com 41 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 1. अपीलाथŎ / The Appellant; 2. 3. ŮȑथŎ / The Respondent The concerned Pr.CIT 4. 5. DR, ITAT, Raipur Bench, Raipur गाडŊ फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Assistant Registrar आयकर अपीलीय अिधकरण , पुणे / ITAT, Pune Printed from counselvise.com 42 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 आयकर अपीलȣय अͬधकरण Ûयायपीठ रायपुर मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER M.A. No.107/RPR/2023 (Arising out of ITA No.64/RPR/2020) Ǔनधा[रण वष[ / Assessment Year : 2013-14 The Assistant Commissioner of Income Tax-4(1), Raipur (C.G.) ……….. आवेदक/Applicant बनाम / V/s. Ravi Sherwani H-26, Rajeev Nagar, Raipur (C.G.)-492 001 PAN: AZBPS6703J ……Ĥ×यथȸ / Respondent Assessee by : Shri Sunil Kumar Agrawal, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 09.05.2025 घोषणा कȧ तारȣख / Date of Pronouncement : ___.05.2025 Printed from counselvise.com 43 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM: The captioned Miscellaneous Application has been filed by the revenue arising out of ITA No.64/RPR/2020 for assessment year 2013-14 u/s.254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). 2. The revenue by filing the captioned miscellaneous application has raised following grounds: “1. In this case of DCIT(Exemption) Vs. Kalinga Institute of Industrial Technology assessee filed a Writ Petition before Hon'ble High Court of Odisha thereby challenging Notice u/s 143(2) of the Act issue by ACIT (Corporate Circle)-1(2), Bhubaneshwar as without jurisdiction. Hon'ble High Court allowed the said Writ Petition and Set-Aside the assessment on the ground that jurisdictional officer had not adjudicated upon return as jurisdiction had been changed after returns were filed. However, records reveal that the assessee had participated pursuant to notice issued u/s.142(1) of the Act had not questioned jurisdiction of AO. Hon'ble Supreme Court on filing of SLP by the department vide SLP Appeal (C) No(S) 29304 of 2019 allowed the same in the following terms: (a) The jurisdiction had been changed after the returns were filed. However, the records also reveals that the assessee had participated pursuant to the notice issued under section 142(1) and had not questioned the jurisdiction of the Assessing Officer. Section 124(3)(a) precludes the assessee from questioning the jurisdiction of the Assessing Officer, if he does not do so within 30 days of receipt of notice under section 142(1). (b) in the present case, the facts did not warrant the order made by the High Court. At the same time, this Court notices that the High Court had granted liberty to the concerned Printed from counselvise.com 44 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 authority to issue appropriate notice. It is clarified, therefore, that the Assessing Officer is free to complete the assessment (in case the assessment order has not been issued) within the next 60 days. In such event, the question of limitation shall not be raised by the assessee. (c) The special leave petition is allowed in the above terms.\" On perusal of the case record of Shri Ravi Sherwani, PAN - AZBPS67031- AY-2013-14 the following facts emerged: (a) The return of income was filed on 29/03/2014 for Rs.19,12,120/- before ITO-1(3), Raipur with address Dhamtari Road, Ring Road No-1, Raipur(CG). (b) The case was selected for scrutiny through CASS and notice u/s 143 was automatically generated by Systems and was issued on 08/09/2014. (c) As per letter dated 08/05/2015, assessee was communicated about timely issue of notices u/s 143(2) and 142(1). (d) Notice u/s 143(2) was issued by ACIT-3(1), Raipur on 12/06/2015. (e) Notice u/s 143(2) was again issued by ACIT-4(1), Raipur on 11/01/2016. (f) Assessee complied with the notices and never objected about the jurisdiction. (g) As per Notification dated 14/11/2014 the return address of the assessee falls in the jurisdiction of Range-4, Raipur. The facts of the case of Shri Ravi Sherwani, PAN - AZBPS6703J- AY-2013-14 being similar to that of DCIT(Exemption) Vs. Kalinga Institute of Industrial Technology, the judgement pronounced by Hon'ble Supreme Court is squarely applicable in the case of the assessee Shri Ravi Sherwani also. 2. Whether on the facts and in the circumstances of the case and in law, the Hon’ble ITAT has erred in quashing the assessment order for want of valid assumption of jurisdiction on the part of AO holding that Notice u/s 143(2) was initially issued by F0-1(3), Raipur without having pecuniary jurisdiction and final assessment order was passed by ACIT- 4(1), Raipur without having issued notice u/s 143(2) of the IT Act in the case. 3. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order by admitting the additional ground of Printed from counselvise.com 45 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 appeal raised by the assessee for the first time before ITAT and not considered other grounds of appeal on merit which are based on facts of the case. The adjudication of the additional ground raised involves purely a question of law. 4. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order where additional ground of grievance against Assessing Officer's order was not raised before Commissioner (Appeals) thus raising of additional ground before Tribunal was not sustainable. 5. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order where in second round of appeal, issue before Ld. CIT(A) was only with regard to addition on account of unexplained deposit in bank account and claim of cost of improvement, assessee could not be allowed to raise additional ground before Tribunal regarding non-compliance of section 143(2) and valid assumption of jurisdiction in contravention to the provisions of Sec. 124(3)(a) of the IT Act. 6. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order as conduct of assessee by not raising the issue of jurisdiction before Commissioner (Appeals) clearly showed that assessee agreed to assumption of jurisdiction by Assessing Officer under section 143(2), additional ground raised by assessee before Tribunal on issue of jurisdiction under section 143(2) could not be admitted. 7. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order by holding that Sec. 124 was only about territorial jurisdiction and not about the pecuniary jurisdiction, whereas Sec. 124(1) clearly refers to Sec.120(1) and Sec.120(2) of the Act which, in turn, specify about the jurisdiction based on both territorial area as well as the income or classes of income, thus, causing a grave miscarriage of justice. 8. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order as Notice issued under section 143(2) did not suffer from any legal infirmity as it satisfied all ingredients under that provisions of the IT Act. Printed from counselvise.com 46 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 9. Whether on the facts and in the circumstances of the case and in law, the- Hon'ble ITAT has erred in quashing the assessment order where on the basis of return of income filed by assessee himself, pecuniary jurisdiction over the case gets vested with Assessing Officer [ACTT-4(1), Raipur] who completed assessment, despite notice issued under section 143(2) by ITO-1(3), Raipur having original territorial jurisdiction and assessee did not raise objection to jurisdiction of said Assessing Officer within time allowed under section 124(3)(a) of the Act; and no fault could be found with said Assessing Officer in assuming jurisdiction and completing assessment. 10. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in quashing the assessment order since Assessing Officer [TT-0-1(3), Raipur] was having territorial jurisdiction over assessee, pecuniary limit fixed for the purpose of distribution of work between officers, would not mean that there shall be inherent lack of jurisdiction of Assessing Officer in issuing notice u/s. 143(2) of the IT Act, although final assessment was completed by the A.O who had pecuniary jurisdiction over the case. 11. Any other ground which may be adduced at the time of hearing.” 3. At the time of hearing, the Ld. Sr. DR referred to Page 28, Para 12 of the impugned order of the Tribunal dated 29.05.2023 submitting mistake apparent from record in the said order. For the sake of clarity, Para 12 of the said order is culled out as follows: “12. Also, we find that for adjudicating the issue involved in the present appeal, support can be drawn from the order of the Tribunal in the case of Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022 dated 28.12.2022. Indulgence of the Tribunal in the said case was sought by the assessee for adjudicating the sustainability of the order u/s 147 r.w.s 143(3) passed by the ITO-Ward 1(2), Raipur, i.e the officer vested with pecuniary jurisdiction over the case of the assessee, on the basis of notice u/s. 148 issued by DCIT-1(1), i.e non-jurisdictional officer. Issue that was, inter alia, raised before the Tribunal, read as under: Printed from counselvise.com 47 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 “1. On the facts and circumstances of the case and in law, reasons recorded & notice issued u/s.148 by DCIT-1(1), Raipur on 18-6-13 is invalid, non-est, as she was not having pecuniary jurisdiction as on 18-6-13, since, CBDT Instruction No.1/11 dt.31-1-11 was applicable from 1-4-11, is binding on IT authorities u/s119; in absence of a valid notice issued u/s148 by ITO-1(2), Raipur (`jurisdictional AO') who framed the assessment u/s. 147 rws.143(3) dt.31-3-15; initiation of reassessment u/s148 would be invalid, non-est and thereby, consequential assessment made u/s 147 rws.143(3) dt.31- 3-15 would also be invalid, non-est and is liable to be quashed.” The Tribunal adjudicated the aforesaid issue, observing as under: “11. Ostensibly, the proceedings u/s.147 of the Act were initiated by the DCIT-1(1), Raipur, Page 2 of APB. Notice u/s.148 18.06.2013 was issued by the DCIT-1(1), Raipur. Assessment u/s.143(3)(sic. 143(3)/147) was, thereafter, framed by the ITO- 1(2), Raipur. Admittedly, it is a matter of fact borne from record that the CBDT vide Instruction No. 1/2011, dated 31.01.2011 had, inter alia, revised the existing monetary limits for assigning cases to ITOs and DCs/ACs. For the sake of clarity, I deem it fit to cull out the CBDT Instruction No.1/2011 dated 31.01.2011, which reads as under: “INSTRUCTION NO. 1/2011 [F. NO. 187/12/2010-IT(A-I)], DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for assigning cases to ITOs and DCs/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under: Income Declared Income Declared (Mofussil areas) (Metro cities) Printed from counselvise.com 48 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 ITOs ACs/DCs ITOs DCs/ACs Corporate returns Upto Rs.20 lacs Above Rs.30 lacs Upto Rs.30 lacs Above Rs.30 Lacs Non- corporate returns Upto Rs.15 lacs Above Rs.15 lacs Upto Rs.20 lacs Above Rs.20 lacs Metro charges for the purpose of above instructions shall be Ahmedabad, Bangalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 1-4- 2011.” (emphasis supplied by me) As stated by the Ld. AR, and, rightly so, the CBDT vide its aforesaid Instruction No.1/2011, dated 31.01.2011 had, inter alia, revised the earlier existing monetary limit for assigning the cases to ITOs/ACs/DCs w.e.f. 01.04.2011. On the basis of the aforesaid CBDT Instruction No.1/2011 (supra) w.e.f 01.04.2011, the case of a non-corporate assessee located in a mofussil area having declared an income upto Rs.15 lacs in his return of income is to be assigned to the ITO’s. As the assessee had in compliance to notice u/s.148 of the Act, dated 18.06.2013 requested vide his letter dated 05.07.2013 that his original return of income disclosing an income of Rs.9,47,500/- that was filed on 30.09.2010 be treated as a return filed in compliance to the aforesaid notice, therefore, the aforesaid CBDT Instruction No.1/2011, dated 31.01.2011 that was applicable w.e.f. 01.04.2011 duly applied to his case. Also, as per the areas earmarked in the aforesaid Instruction No.1/2011, dated 31.01.2011 as the assessee is not located in any of those cities/stations which have been held to be metro cities, therefore, his case would be as that of a non-corporate assessee who is located in a mofussil area. As is discernible from the records, the aforesaid request of the assessee vide his letter dated 05.07.2013 that his original return of income disclosing an income of Rs.9,47,500/- be treated as a return u/s.148 of the Act was accepted by the A.O, who, thereafter, had framed assessment vide his order passed u/s.143(3)(sic), dated 31.03.2015, therein taking the income of the assessee as originally returned as the base figure while arriving at the assessed income. 12. On the basis of the aforesaid facts, I am of the considered view, that as stated by the Ld. AR, and, rightly so, as per the CBDT Printed from counselvise.com 49 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Instruction No.1/2011, dated 31.01.2011 the jurisdiction over the case of the assessee who is located in a mofussil area i.e. Raipur and had in compliance to the notice u/s.148, dated 18.06.2013 filed a non-corporate return on 05.07.2013 for the year under consideration, i.e., A.Y.2010-11 declaring an income of Rs.9,47,500/- was vested with the ITO, Ward 1(3), Raipur [which w.e.f. 15.11.2014 was transferred to ITO-1(2), Raipur]. Although notice u/s. 148, dated 18.06.2013 was issued within the stipulated time period, however, the same was issued by the DCIT-1(1), Raipur, i.e., an A.O who pursuant to the CBDT Instruction No.1 of 2011, dated 31.01.2011 was not vested with jurisdiction over the case of the assessee for the year under consideration. On the other hand as the ITO, Ward-1(3), Raipur [succeeded by ITO, Ward-1(2), Raipur w.e.f. 15.11.2014] who as per the aforesaid CBDT Instruction (supra) was at the relevant point of time vested with the exclusive pecuniary jurisdiction over the case of the assessee for the year under consideration had not issued any notice u/s. 148 of the Act, and had proceeded with on the basis of the notice u/s.148 dated 18.06.2013 issued by the DCIT-1(1), Raipur i.e. a non-jurisdictional Officer, therefore, no valid jurisdiction could have been assumed by him for framing the impugned assessment vide order passed u/s.143(3)(sic), dated 31.03.2015. 13. On the basis of my aforesaid deliberations, I am in agreement with the Ld. AR that the ITO-1(2), Raipur could not have validly assumed jurisdiction and framed the assessment vide his order passed u/s.143(3)(sic), dated 31.03.2015 on the basis of the notice issued u/s. 148 dated 18.06.2013 by the DCIT-1(1), Raipur i.e. a non jurisdictional A.O. The aforesaid view of mine is fortified by the judgment of the Hon’ble High Court of Bombay in the case of Ashok Devichand Jain Vs. UOI in W.P. No.3489 of 2019, dated 08.03.2022. In the said case the Hon’ble High Court by referring to the CBDT Instruction No.1 of 2011, dated 31.01.2011, had observed, that as the pecuniary jurisdiction over the case of the assessee before them who had returned an income of Rs.64.34 lacs was vested with the DCs/ACs, therefore, the notice issued u/s.148 of the Act by the ITO who during the year under consideration had no pecuniary jurisdiction over the assessee’s case was bad in the eyes of law. Considering the aforesaid lapse in the assumption of jurisdiction the Hon’ble High Court had quashed the notice that was issued by the ITO u/s.148 of the Act. Also, I find that a similar view had been taken by the Hon’ble High Court of Bombay in the case of Pavan Morarka Vs. ACIT-2, (2022) 136 taxmann.com 2 (Bombay). It was observed by the Hon’ble High Court that as the A.O at Delhi who had issued notice u/s.148 of the Act had no jurisdiction over the case of the assessee who was being assessed at Mumbai, therefore, the subsequent reopening notice that was issued by the A.O at Printed from counselvise.com 50 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Mumbai after the case of the assessee was transferred to his jurisdiction could not be held to be in continuation of the proceedings which were initiated by the A.O at Delhi. To sum up, it was observed by the Hon’ble High Court that if an A.O who had issued notice u/s.148 was not vested with jurisdiction over the case of the assessee, then, the subsequent notice issued by the jurisdictional A.O could neither be construed as a notice issued in continuation of the earlier proceedings, nor any valid assessment u/ss. 143(3)/147 of the Act could be framed on the basis of such notice issued by the non-jurisdictional A.O. Also, a similar view had been taken by the Hon’ble High Court of Allahabad in the case of Pr. Commissioner of Income Tax-II Vs. Mohd. Rizwan, Prop. M/s. M.R Garments Moulviganj, Lucknow, ITA No. 100 of 2015 dated 30.03.2017. In the case before the Hon’ble High Court notice u/s.148 was issued by the ITO-(IV)(1), Lucknow who at the relevant point of time had no jurisdiction over the case of the assessee, as the same was already transferred to ITO-V(2), Lucknow. Thereafter, as the ITO-V(2), Lucknow proceeded with and framed the assessment without issuing any notice u/s.148 of the Act, therefore, the Hon’ble High Court treating the notice u/s 148 issued by the ITO-(IV)(1), Lucknow as invalid upheld the quashing of the assessment by the Tribunal for want of valid assumption of jurisdiction by the jurisdictional A.O. Apart from that, a similar view had earlier been taken by the Hon’ble High Court of Allahabad in the case of MI Builders (P) Ltd. (2014) 349 ITR 271 (Allahabad). It was observed by the Hon’ble High Court that as the jurisdiction of the A.O was transferred before issuance of notice u/s.148 of the Act by him, therefore, the notice so issued by him would be without jurisdiction. Also, I find that similar view in a case involving identical facts had been taken up by the ITAT, SMC Bench, Raipur in the case of M/s. Adarsh Rice Mill Vs. ITO, Ward-1(1), ITA No.84/RPR/2022, dated 29.11.2022. Further, a similar view had been taken by the Hon’ble High Court of Gujarat in the case of Pankajbhai Jaysukhlal Shah Vs. ACIT, Circle-2 (2019) 110 taxmann.com 51 (Guj.). In the said case, though the A.O who had jurisdiction over the case of the assessee had recorded the ‘reasons to believe’ but notice u/s.148 of the Act was issued by another officer, therefore, the notice so issued u/s.148 of the Act was quashed by the Hon’ble High Court. At this stage, I may herein observe, that the aforesaid order of the Hon’ble High Court had thereafter been upheld by the Hon’ble Supreme Court in the case of ACIT, Circle-1 Vs. Pankajbhai Jaysukhlal Shah[2020] 120 taxmann.com 318 (SC). Also, I find that a similar view had been taken by a “SMC” Bench of this Tribunal in its recent order passed in the case of Shreyansh Bothra Vs. ITO-2(1), Bhilai, ITA No.114/RPR/2019, dated 16.12.2022, wherein, it was observed as under: Printed from counselvise.com 51 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 “11. Controversy involved in the present appeal in the backdrop of the aforesaid factual matrix boils down to the solitary aspect, i.e., as to whether or not the assessment framed by the ITO, Ward-2(1), Bhilai vide order passed u/ss.143(3)/147 dated 25.03.2016 on the basis of notice issued u/s.148 dated 23.03.2015 by the ITO, Ward- 1(1), Raipur i.e. a non-jurisdictional A.O is sustainable in the eyes of law? 12. As observed by me hereinabove, the assessment proceedings in the case of the assessee were initiated by the ITO, Ward-1(1), Raipur vide notice u/s.148 dated 23.03.2015. Subsequently, the ITO, Ward-1(1), Raipur had transferred the case record of the assessee on 12.05.2015 to ITO, Ward-2(1), Bhilai. The ITO, Ward- 2(1), Bhilai had, thereafter, on the basis of notice u/s.148 dated 23.03.2015 (supra) proceeded with and framed the assessment vide his order u/ss.143(3)/147 dated 25.03.2016. Ostensibly, the ITO, Ward-2(1), Bhilai, i.e., jurisdictional officer had not issued any notice u/s.148 of the Act but had acted upon that as was issued by the ITO, Ward-1(1), Raipur i.e. a non-jurisdictional officer on 23.03.2015. At this stage, I may herein observe that it is not the case of the department that the jurisdiction over the case of the assessee was transferred from ITO, Ward-1(1), Raipur to ITO, Ward- 2(1), Bhilai vide an order passed by the appropriate authority u/s.127 of the Act. Also, no material had been placed before me by the Ld. DR which would reveal that as the ITO, Ward-1(1), Raipur at the time of issuance of notice u/s.148 dated 23.03.2015 was duly vested with the jurisdiction over the case of the assessee, which, thereafter, had validly been transferred to the ITO, Ward-2(1), Bhilai, therefore, as per Section 129 of the Act the assessment framed by the latter on the basis of notice u/s.148 dated 23.03.2015 issued by the ITO, Ward-1(1), Raipur could not be faulted with. 13. On the basis of the aforesaid facts, I am of the considered view that as stated by Mr. R.B Doshi, the Ld. AR, and, rightly so, the framing of the impugned assessment u/ss.143(3)/147 dated 25.03.2016 by the ITO, Ward-2(1), Bhilai on the basis of notice issued u/s. 148 dated 23.03.2015 by the ITO, Ward-1(1), Raipur i.e. an officer who at the relevant point of time was not vested with jurisdiction over the case of the assessee, was devoid and bereft of any force of law. I find that involving identical facts a similar issue had came up before the Hon’ble High Court of Bombay in the case of Ashok Devichand Jain Vs. UOI in W.P. No.3489 of 2019, dated 08.03.2022. In the case before the Hon’ble High Court as the notice u/s.148, dated 30.03.2019 was issued by the ITO, Ward 12(3)(1), Mumbai, i.e., a non-jurisdictional Officer, therefore, on a writ petition filed by the assessee assailing the validity of the jurisdiction Printed from counselvise.com 52 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 that was assumed by the A.O for reopening of its case on the basis of the aforesaid impugned notice, the Hon’ble High Court had quashed the notice issued u/s.148 of the Act, 30.03.2019 for the reason that the same was issued by an A.O who at the relevant point of time had no jurisdiction over the assessee-petitioner. Also, I find that a similar view had been taken by the Hon’ble High Court of Bombay in the case of Pavan Morarka Vs. ACIT-2, (2022) 136 taxmann.com 2 (Bombay). It was observed by the Hon’ble High Court that as the A.O at Delhi who had issued notice u/s.148 of the Act had no jurisdiction over the case of the assessee who was being assessed at Mumbai, therefore, the subsequent reopening notice that was issued by the A.O at Mumbai after the case of the assessee was transferred to his jurisdiction could not be held to be in continuation of the proceedings which were initiated by the A.O at Delhi. To sum up, it was observed by the Hon’ble High Court that if an A.O who had issued notice u/s.148 was not vested with jurisdiction over the case of the assessee, then, the subsequent notice issued by the jurisdictional A.O could neither be construed as a notice issued in continuation of the earlier proceedings, nor any valid assessment u/ss. 143(3)/147 of the Act could be framed on the basis of such notice issued by the non-jurisdictional A.O. Also, a similar view had been taken by the Hon’ble High Court of Allahabad in the case of Pr. Commissioner of Income Tax-II Vs. Mohd. Rizwan, Prop. M/s. M.R Garments Moulviganj, Lucknow, ITA No. 100 of 2015 dated 30.03.2017. In the case before the Hon’ble High Court, notice u/s.148 was issued by the ITO-(IV)(1), Lucknow who at the relevant point of time had no jurisdiction over the case of the assessee, as the same was already transferred to ITO-V(2), Lucknow. Thereafter, as the ITO-V(2), Lucknow proceeded with and framed the assessment without issuing any notice u/s.148 of the Act, therefore, the Hon’ble High Court treating the notice u/s 148 issued by the ITO-(IV)(1), Lucknow as invalid upheld the quashing of the assessment by the Tribunal for want of valid assumption of jurisdiction by the jurisdictional A.O., i.e, ITO-(IV)(1), Lucknow. Apart from that, a similar view had earlier been taken by the Hon’ble High Court of Allahabad in the case of MI Builders (P) Ltd. (2014) 349 ITR 271 (Allahabad). It was observed by the Hon’ble High Court that as the jurisdiction of the A.O was transferred before issuance of notice u/s.148 of the Act by him, therefore, the notice so issued would be without jurisdiction. Further, I find that similar view in a case involving identical facts had been taken up by the ITAT, SMC Bench, Raipur in the case of M/s. Adarsh Rice Mill Vs. ITO, Ward- 1(1), ITA No.84/RPR/2022, dated 29.11.2022. 14. Considering the aforesaid position of law, I find substance in the claim of the Ld. AR that the assessment framed in the case of the present assessee by the ITO-2(1), Bhilai vide his order passed Printed from counselvise.com 53 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 u/ss.143(3)/147, dated 25.03.2016 on the basis of notice u/s.148 of the Act, dated 23.03.2015 issued by the ITO-1(1), Raipur ,i.e., a non-jurisdictional A.O, being devoid and bereft of any of force of law cannot be sustained and is liable to be vacated on the said count itself. Thus, the Ground of appeal No.1 (to the extent relevant) is allowed in terms of the aforesaid observations.” 14. On the basis of my aforesaid deliberations, I am of the considered view that as the assessment framed in the case of the present assessee by the ITO-1(2), Raipur vide order u/s.143(3)(sic) dated 31.03.2015 on the basis of notice u/s.148 dated 18.06.2013 issued by the DCIT-1(1), Raipur i.e. a non-jurisdictional A.O, is devoid and bereft of any force of law, therefore, the same cannot be sustained and is liable to be struck down on the said count itself. Accordingly, the impugned assessment framed by the ITO-1(2), Raipur u/s.143(3)(sic), dated 31.03.2015 is quashed for want of valid assumption of jurisdiction on his part.” As the facts and the issue involved in the present appeal remains the same as were involved in the aforementioned orders of the Tribunal in the case of Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019 dated 12.12.2022 and Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022 dated 28.12.2022, therefore, respectfully following the same parity of reasoning, we are of the considered view that as the assessment framed in the case of the present assessee by the ACIT, Circle-4(1), Raipur vide order u/s.143(3) dated 29.03.2016 on the basis of notice issued by the ITO-1(3), Raipur i.e. a non- jurisdictional A.O is devoid and bereft of any force of law, thus, the same cannot be sustained and is liable to be struck down on the said count itself. Accordingly, the impugned assessment framed by the ACIT, Circle 4(1), Raipur u/s.143(3) dated 29.03.2016 is quashed for want of valid assumption of jurisdiction on his part.” 4. The only limited contention in the miscellaneous application filed by the department is that though the Tribunal has referred to the decisions in the cases of viz. (i) Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019, dated 12.12.2022 and (ii) Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022, dated 28.12.2022, however, the Tribunal has not considered the judgment of the Hon’ble Supreme Court in the case of DCIT Vs. Kalinga Institute of Industrial Technology (KIIT), Printed from counselvise.com 54 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Special Leave to Appeal (C)…………….No(s).29304/2019, dated 01.05.2023. The Ld. Sr. DR referring to the judgment of the Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC) submitted that non- consideration of a decision of Jurisdictional High Court or of Supreme Court can be a 'mistake apparent from record', rectifiable u/s.254(2) of the Act. 5. In this regard, the Ld. Counsel for the assessee submitted that at the time of hearing, the judgment of the Hon’ble Supreme Court in the case of DCIT Vs. Kalinga Institute of Industrial Technology (supra) has not been referred to by the department before the Tribunal. The Ld. Counsel has placed reliance on the correctness of the order passed by the Tribunal dated 29.05.2023. 6. Having heard the parties herein, we find that the Tribunal in its own wisdom after relying on its own orders in the case of viz. (i) Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019, dated 12.12.2022 and (ii) Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022, dated 28.12.2022 had decided the appeal in favour of the assessee and that it may be correct or it may be incorrect but that question of correctness of the order can only be decided in the appellate forum before the Hon’ble High Court. The contention of the department that a particular decision Printed from counselvise.com 55 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 should have been only referred to and considered by the Tribunal by filing this miscellaneous application amounts only to review of order passed by the Tribunal which is not permissible within the powers vested u/s. 254(2) of the Act. 7. We are of the considered view that the Tribunal as the highest fact finding authority after analyzing the facts and circumstances in each case comes to a certain conclusion. The said decision is then substantiated by judicial decisions in order to fortify the findings of the Tribunal which are applicable on facts of the case. Now if the arguments of the Ld. Sr. DR are to be accepted then in every case, the facts have to be reviewed once again in order to determine whether a particular decision which otherwise in the impugned order was not considered by the Tribunal whether such decision has to be considered or not, this would be clear case of review of our own decision which is not within the jurisdiction of the Tribunal u/s. 254(2) of the Act. Such powers of review are before the constitutional authority i.e. Hon’ble Supreme Court or Hon’ble High Courts to determine and interpret even such issues which are not specifically provided in a particular statute. The Tribunal as a statutory authority and highest fact finding body determines facts in each case vis-à-vis provisions of the Act. The fiscal statute by the Tribunal has to be interpreted in the strictest form and there cannot be any circumstantial or liberal interpretation. The Printed from counselvise.com 56 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 orders of the Tribunal are definitely subject to appeal proceedings but so far as the mandate of the provisions of the Act are concerned, we are strictly bound by it. In this regard, the decisions arrived at by ITAT are always on the facts of each case and to substantiate such facts, the legal principles are resorted to through judicial pronouncements applicable to such facts only. It is not other way round that Tribunal only refers to judicial decision and then combines it with the facts of the case. Therefore, when the Tribunal have quashed the assessment proceedings, it had analyzed and determined the facts involved relating to the subject matter in the case and therefore, it had referred to its own decisions viz. (i) Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019, dated 12.12.2022 and (ii) Chowaram Dhiwar Vs. ITO, ITA No.31/RPR/2022, dated 28.12.2022. The department through this miscellaneous application is seeking review of the decision of Tribunal which is not permissible within the provisions of Section 254(2) of the Act. The Tribunal can only rectify the mistake which is apparent from record. There are series of decisions by the Hon'ble Supreme Court as well as Hon'ble High Courts expounding scope of exercising powers under section 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, Printed from counselvise.com 57 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. 8. The judgment relied by the Ld. Sr. DR on ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (supra) wherein it was held that non-consideration of a decision of the Hon’ble Supreme Court or Hon’ble Jurisdictional High Court can be a 'mistake apparent from record', rectifiable u/s.254(2) of the Act. The Article 141 of Constitution of India provides that the law declared by the Hon’ble Supreme Court shall be binding on all courts within the territory of India and such law shall apply retrospectively also unless declared by the Hon’ble Supreme Court regarding its applicability prospectively. In other word laws currently applicable if not have been considered by the Tribunal, it shall constitute mistake apparent from record u/s. 254(2) of the Act. The key word here is “applicability” and such “applicability” of law is always on facts of each case. The facts involved in the case decided by the Hon’ble Supreme Court or Hon’ble High Court shall have to be “absolutely similar” or “substantially identical” with the facts of the case before the Tribunal (ITAT). The word “absolutely similar” or “substantially identical” signifies that through a bare reading of the facts one can understand they are same without any verification, without any counter argument or with out any examination on records. For Printed from counselvise.com 58 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 instance, the fact on late payment of employee’s contribution by an employer to PF & ESIC etc. That on the said fact, the Tribunal had earlier allowed the appeal of the assessee even on delayed payment of such employee’s contribution if the said payments were made within “due date” on filing return of income u/s. 139(1) of the Act by holding that such disallowance u/s. 36(1)(va) of the Act was not justified. However, in the recent past, the Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. Vs Commissioner of Income Tax-1, Civil Appeal No.2833 of 2016, dated 12.10.2022 has held that the employee’s contribution to PF & ESIC have to be deposited by the employer within “due date” as prescribed in the relevant statute itself i.e. as per relevant provision within such labour laws itself. This is for the reason that the employer holds employee’s contribution with him on trust basis and if the said amount is not deposited as per “due date” of relevant statute itself then it had to be charged as deemed income in the hands of the employer. That post this judgment of the Hon’ble Supreme Court, whenever facts are such that there is admittedly delayed payment of employee’s contribution to PF & ESIC etc. by the employer as per “due date” mentioned in the relevant statute of labour laws, the ITAT applied the judgment of Checkmate Services Pvt. Ltd. Vs Commissioner of Income Tax-1 (supra) and had held that such disallowance u/s.36(1)(va) of the Act was justified. Therefore, in these facts and situation, we can definitely term them as Printed from counselvise.com 59 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 “absolutely similar” or “substantially identical” since the issue emanating does not require any further verification and examination on facts and thus, following the mandate of Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (supra), the present law applicable of Checkmate Services Pvt. Ltd. Vs Commissioner of Income Tax-1 (supra) is applied and thereby the mandate of Article 141 of the Constitution of India is complied with. 9. However, in the present miscellaneous application, the Ld. Sr. DR had submitted that since the Tribunal had not applied the decision of the Hon’ble Supreme Court in the case of DCIT Vs. Kalinga Institute of Industrial Technology (supra), the same constitutes mistake apparent from record within the jurisdiction of Section 254(2) of the Act. We are of the considered view that the facts in the referred decision of the Hon’ble Supreme Court and the facts emanating from the impugned order of Tribunal are neither “absolutely similar” nor “substantially identical” and therefore, its non-applicability cannot be termed as mistake apparent from record u/s. 254(2) of the Act as contemplated by the Revenue. The Tribunal had carefully considered the facts and circumstances as explained in its order and thereafter, quashed the assessment order and in its own wisdom relying on its decisions viz. (i) Durga Manikanta Traders Vs. ITO, ITA No.59/RPR/2019, dated 12.12.2022 and (ii) Chowaram Printed from counselvise.com 60 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Dhiwar Vs. ITO, ITA No.31/RPR/2022, dated 28.12.2022. Now if the contentions of the Ld. Sr. DR are to be upheld then the Tribunal must review the facts of the case, call for examination of records, hear arguments counter arguments and then shall have to decide the applicability of the case law. But this exercise again is not envisaged by the Legislature as per its intent in terms with Section 254(2) of the Act since only mistake apparent from record can be rectified u/s. 254(2) of the Act and the Tribunal has no power to review its decision. 10. We are of the considered view that the revenue in the garb of the aforesaid miscellaneous application is seeking a review of the order passed by the Tribunal in ITA No.64/RPR/2020, dated 29.05.2023, which is beyond the scope of the powers of the Tribunal as envisaged u/s. 254(2) of the Act. Our aforesaid view is supported by the judgment of the Hon'ble Supreme Court in the case of T.S. Balaram, ITO v. Volkart Bros., (1971) 82 ITR 50 (SC), wherein the Hon'ble Apex Court had held as under: \" ....A mistake apparent on the record must 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 conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question.......an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on debatable point of law is not a mistake apparent from the record........\" Printed from counselvise.com 61 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Also, a similar view had been taken by the Hon'ble Supreme Court in the case of Commissioner of Income Tax (IT-4) Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC), wherein it was held as under: \"From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that.” 11. Accordingly, this miscellaneous application filed by the revenue being devoid and bereft of any merit is dismissed. Printed from counselvise.com 62 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 12. In the result, the miscellaneous application filed by the revenue is dismissed. Order pronounced in the open court on _______ day of May, 2025. __ Sd/- ARUN KHODPIA PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER रायपुर/ RAIPUR ; Ǒदनांक / Dated : _____May, 2025. SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ /The Appellant. 2. Ĥ×यथȸ /The Respondent. 3. The Pr. CIT-1, Raipur (C.G.) 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, रायपुर बɅच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 5. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. Printed from counselvise.com 63 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 आयकर अपीलȣय अͬधकरण, रायपुर Ûयायपीठ, रायपुर IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR Įी पाथ[ सारथी चौधरȣ, ÛयाǓयक सदèय एवं Įी अǽण खोड़ͪपया, लेखा सदèय क े सम¢ । BEFORE SHRI PARTHA SARATHI CHAUDHURY, JM & SHRI ARUN KHODPIA, AM Miscellaneous Application No. 107/RPR/2023 (Arising out of ITA No. 64/RPR/2020) (Assessment Year: 2013-14) आदेश / O R D E R Per Arun Khodpia, AM: In the captioned matter, I have received and reviewed the draft of the order authored by Ld. Judicial Member; however, the decision expressed by Ld. JM brother is not consistent with the viewpoint that I observe and believe is justified to adopt in the present case. Because I disagree with the decision in the proposed draft order forwarded by Ld. JM brother, the proposed draft Assistant Commissioner of Income Tax-4(1), Raipur, C.G. v s Ravi Sherwani, H-26, Rajeev Nagar, Raipur PAN: AZBPS6703J (अपीलाथȸ/Appellant) . . (Ĥ×यथȸ / Respondent) Ǔनधा[ǐरती कȧ ओर से /Assessee by : Shri Sunil Kumar Agrawal, CA राजèव कȧ ओर से /Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 09.05.2025 घोषणा कȧ तारȣख / Date of Pronouncement : 04.06.2025 Printed from counselvise.com 64 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 order, dissenting from Ld. JM's opinion, as envisioned by me, is recited as follows: 2. The captioned Miscellaneous Application is filed by the revenue in the case of aforesaid assessee, arising out of the original order of ITAT, Raipur in ITA No. 64/RPR/2020 for the AY 2013-14 dated 29.05.2023. 3. The statement of facts and grievance in the form of grounds of MA submitted by the revenue are culled out as under: Printed from counselvise.com 65 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 66 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 67 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 68 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 69 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 70 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 71 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 72 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 73 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 74 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 75 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 76 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 77 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 78 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 79 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 80 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Printed from counselvise.com 81 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 4. From the aforesaid submissions of the revenue, the contention raised is that the tribunal in the impugned order had not considered the judgment of Hon’ble Apex Court in the case of DCIT(Exemption) vs. Kalinga Institute of Industrial Technology reported in [2023] 151 taxmann.com 434 (SC)[01-05- 2023] (hereinafter referred to, in short as “KIIT”), therefore, the impugned order of tribunal is suffering with a mistake apparent from record rectifiable under the provisions of Section 254(2) of the Act. 5. At the outset, Ld. Sr. DR, representing the revenue, submitted that while passing the impugned order dated 29.05.2023 in the aforesaid case, the tribunal had decided the issue against the revenue, having conviction that the assessment framed in the case of assessee by the ACIT, Circle-4(1), Raipur, on the basis of notice issued by the ITO-1(3), Raipur (a non-jurisdictional AO) is devoid and bereft of any force of law, thus, the same cannot be sustained and Printed from counselvise.com 82 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 liable to struck down. Ld. Sr. DR further submitted that the tribunal has arrived at the aforesaid conclusion by placing its complete reliance on certain decisions of the coordinate bench of ITAT, Raipur, wherein the aforesaid view has already been adopted by the tribunal. 6. The cases which are relied upon are (i) Durga Manikanta Traders vs. ITO, ITA No. 59/RPR/2019, dated 12.12.2022 and (ii) Chowaram Dhiwar vs. ITO, ITA No. 31/RPR/2022. It is further submitted by the Ld. Sr. DR that while deciding the aforesaid cases, the tribunal had discussed specified CBDT circular as well as certain judicial pronouncements. 7. It was the submission by Ld. Sr. DR that the core issue, based on which the assessment was quashed in the present case was validity of assumption of jurisdiction of the Ld. AO, who framed the assessment u/s 143(3) of the Act. The issue, which was the foundation in deciding that the AO, who had passed the assessment does not hold / assume valid jurisdiction with him as the notice u/s 143(2) was issued by another AO, who was not conferred with the jurisdiction over the case of assessee. 8. To substantiate that the impugned decision of the ITAT falls within the range of a mistake apparent from records as per the provisions of Section Printed from counselvise.com 83 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 254(2) of the Act, Ld. Sr. DR submitted that a relevant judgment of Hon’ble Apex Court was not considered by the tribunal, whereas tribunal had placed reliance on its own earlier decisions. It was the submission that the issues regarding jurisdiction of Ld. AO which needs to be challenged within one month of issuance of such notice as per the provisions of Section 124(3)(a) of the Act, has been discussed and enlightened by the Hon’ble Apex Court in a recent decision in the case of KIIT (supra), by observing that once the assessee had participated pursuant to the notice issued u/s 142(1) and had not questioned the Jurisdiction Assessing Officer, Section 124(3)(a) of the Act precludes the assessee from questioning the jurisdiction of Assessing Officer, if he does not do so within 30 days of the receipt of the said notice. It was the submission that when the tribunal has passed the impugned order on 29.05.2023, the judgment of Hon’ble Apex Court in the case of KIIT (supra) was in existence which was pronounced on 01.05.2023, therefore, it was obligatory upon the tribunal to have considered the judgment of Hon’ble Apex Court. It is further submitted that even if the judgment of Hon’ble Apex Court is pronounced after the date of passing the order of tribunal, as per settled principle of law, the same has a retrospective effect, thus, needs to be respectfully followed, unless otherwise stated in the order of Hon’ble Apex Court itself. In view of such submissions, it was the prayer that non-consideration of the Hon’ble Apex Court’s order would be equal to a mistake apparent from record, which needs to be rectified. Printed from counselvise.com 84 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 9. To substantiate that non adherence to the judgment of Hon’ble Apex Court is a mistake apparent from record, even if the same is not brought to the knowledge of tribunal by the concerned party, much less, a judgment passed by the Hon’ble Apex Court which has a retrospective effect, if the same has not been considered by the tribunal the same constitutes a mistake apparent from record within the meaning of provisions of section 254(2) of the Act and, therefore, warrants rectification. Ld. Sr. DR placed her reliance on the decision of Hon’ble Apex Court in the case of Assistant Commissioner of Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC), (hereinafter referred to, in short as “SKSEL”). Ld. Sr. DR further submitted that as per the judgment in the case of SKSEL (supra), non-consideration of decision of the Hon’ble Jurisdictional High Court or Hon’ble Supreme Court can be a mistake apparent from record, which is rectifiable u/s 254(2) of the Act. 10. Based on aforesaid judgment in the case of SKSEL (supra). Ld. Sr. DR, highlighted that in the said judgment the Hon’ble Apex Court had very precisely explicated that the decision of Hon’ble Jurisdictional High Court or the Hon’ble Apex Court rendered prior to or even subsequent to the order to be rectified, if not considered, it could be said to be “mistake apparent from record” u/s 254(2) of the Act, therefore, non-mentioning of an order of Hon’ble Apex Court by the Printed from counselvise.com 85 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 revenue cannot be a plea to brush aside a significant judgment of the Hon’ble Apex Court for the benefit of the assessee or vice-versa. 11. With aforesaid submissions, it was the prayer that non-consideration of an order of Hon’ble Apex Court, which is relevant and precisely alluding on the issue, which was the basis for dismissal / quashing of the assessment, the same falls within the scope of mistake apparent from record and the same deserves to be rectified u/s 254(2) of the Act. 12. Per Contra, Ld. AR on behalf of the assessee, vehemently argued and supported the impugned order of tribunal dated 29.05.2023 and have submitted that non-consideration of an order of Hon’ble Apex Court, which was not brought to the knowledge of tribunal by the revenue at the time of hearing cannot constitute a mistake apparent from record. Therefore, the revenue’s contention is bereft of merits, thereby seeking review of the order of tribunal under the guise of present MA by requesting for recalling of the impugned order. Ld. AR further submitted that the mandate of law elucidated by the Hon’ble apex Court in the case of DCIT vs Kalinga (supra), has no bearing in the present case, as the notice in the present present case was not issued by the Jurisdictional AO, therefore, there was no requirement for the assessee to challenge the jurisdiction as per the provisions of Section 124(3)(a) of the Act, Printed from counselvise.com 86 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 within the stipulated time frame of one month / 30 days. With such submissions, it is prayer that there is no mistake apparent from record, thus, the MA filed by the revenue deserves to be rejected. 13. After giving a thoughtful consideration to the aforesaid contentions and submissions of both the parties, it is noted that the assessment framed u/s 143(3) of the Act by the Assessing Officer dated 29.03.2016, which was quashed for want of valid assumption of jurisdiction, as the notice u/s 143(2) at the assessment stage was issued by a non-jurisdictional Assessing Officer, dehors valid jurisdiction over the case of the assessee. 14. The solitary issue in the present MA pertains to the validity of Jurisdiction of Assessing Officer, which apparently was not challenged by or questioned by the assessee within the stipulated time of 30 days / one month, as per the mandate of Section 124(3)(a) of the Act. Thus, the assessee shall be precluded to pursue qua the validity of jurisdiction of the Ld. AO, as clearly interpreted and laid down by Hon’ble Apex Court, while dealing with such issues in the case of KIIT (supra). 15. Now, the question for our consideration is that, as to whether, there was a mistake in the impugned order of ITAT, being remain oblivious in considering the decision of Hon’ble Apex Court in the case of KIIT (supra), which would be mistake apparent on record, as has been held by Hon’ble Apex Court in the Printed from counselvise.com 87 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 case of SKSEL (supra), the answer is ‘Yes’, since the assessment was quashed for not having a valid jurisdiction by the Ld. AO, who passed the assessment, but the assessee was not entitled to raise such question after 30 days from the date of service of subject notice, which is a substantial fact in the present case also, thus KIIT (supra) has its implication in the present case, consequently such a significant judgment cannot be leave aside without considering the same. 16. The definition of jurisdiction has been explained under Chapter XIII, u/s 120 of the Income Tax Act, which deals with jurisdiction of the Income Tax Authorities, which are extracted hereunder for the sake of convenience and reference: Chapter XIII B – Jurisdiction Jurisdiction of income-tax authorities. 120. (1) Income-tax authorities shall exercise all or any of the powers and perform all or any of the functions conferred on, or, as the case may be, assigned to such authorities by or under this Act in accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions by all or any of those authorities. [Explanation.—For the removal of doubts, it is hereby declared that any income-tax authority, being an authority higher in rank, may, if so directed by the Board, exercise the powers and perform the functions of the income-tax authority lower in rank and any such direction issued by the Board shall be deemed to be a direction issued under sub-section (1).] (2) The directions of the Board under sub-section (1) may authorise any other Printed from counselvise.com 88 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 income-tax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of the other income-tax authorities who are subordinate to it. (3) In issuing the directions or orders referred to in sub-sections (1) and (2), the Board or other income-tax authority authorised by it may have regard to any one or more of the following criteria, namely :— (a) territorial area; (b) persons or classes of persons; (c) incomes or classes of income; and (d) cases or classes of cases. (4) Without prejudice to the provisions of sub-sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein,— (a) authorise any Director General or Director to perform such functions of any other income-tax authority as may be assigned to him by the Board; (b) empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases, shall be exercised or performed by [an Additional Commissioner or] [an Additional Director or] a [Joint] Commissioner [or a [Joint] Director], and, where any order is made under this clause, references in any other provision of this Act, or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such [Additional Commissioner or] [Additional Director or] [Joint] Commissioner [or [Joint] Director] by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the [Joint] Commissioner shall not apply. (5) The directions and orders referred to in sub-sections (1) and (2) may, wherever considered necessary or appropriate for the proper management of the work, require two or more Assessing Officers (whether or not of the same class) to exercise and perform, concurrently, the powers and functions in respect of any area or persons or classes of persons or incomes or classes of income or cases or classes of cases; and, where such powers and functions are exercised and performed concurrently by the Assessing Officers of different classes, any authority lower in rank amongst them shall exercise the powers and perform the functions as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any Printed from counselvise.com 89 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 rule made thereunder to the Assessing Officer shall be deemed to be references to such higher authority and any provision of this Act requiring approval or sanction of any such authority shall not apply. (6) Notwithstanding anything contained in any direction or order issued under this section, or in section 124, the Board may, by notification in the Official Gazette, direct that for the purpose of furnishing of the return of income or the doing of any other act or thing under this Act or any rule made thereunder by any person or class of persons, the income-tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such authority as may be specified in the notification.] 17. Further, Section 124 deals with jurisdiction of Assessing Officers. The relevant provision under Clause (a) of sub-section-(3) is extracted as under for the sake of applicability in the present case: Jurisdiction of Assessing Officers. 124. (1) …………… (2) …………………… (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer— (a) where he has made a return [under sub-section (1) of section 115WD or] under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or [sub-section (2) of section 115WE or] sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) …………………. (4) Subject to the provisions of sub-section (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub- Printed from counselvise.com 90 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 section (2) before the assessment is made. (Emphasis supplied….) 18. From the aforesaid provisions of Income Tax Act, a conjoint reading of section 120 and 124(3)(a) and as further clarified by Hon’ble Apex Court in KIIT(supra), it is clearly established that no person shall be entitled to call in question the Jurisdiction of an Assessing Officer, after the expiry of one month or 30 days, from the date on which he was served with a notice under sub- section (1) of section 142 or [sub-section (2) of section 115WE or] sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier. 19. Adverting to the facts of present case, admittedly, there was no question raised by the assessee during the assessment proceedings, rather he participated in the assessment proceedings, therefore, the assessee would not be entitled to raise such issue after expiry of the stipulated time period provided under the statute, which is clearly clarified by the Hon’ble Apex Court in the case of KIIT (supra), by expounding that; “However, the records also reveals that the assessee had participated pursuant to the notice issued under Section 142(1) and had not questioned the jurisdiction of the assessing officer. Section 124(3)(a) of the Income Tax Act precludes the assessee from questioning the Printed from counselvise.com 91 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 jurisdiction of the assessing officer, if he does not do so within 30 days of receipt of notice under Section 142 (1).” 20. Since, the judgment of Hon’ble Apex Court in KIIT (supra) has a significant relevance but was not considered by the Tribunal in the impugned order, it is a mistake apparent from record to be rectified u/s 254(2) of the Act, in terms of binding law laid down by Hon’ble Apex Court in the case of SKSEL (supra). 21. The judgment in the case of SKSEL (supra), is further fortified by the mandate of Article 141 of the Constitution of India, which for the sake of completeness has been extracted hereunder: “Article 141 of the Indian Constitution establishes that the law declared by the Supreme Court of India is binding on all courts within the territory of India. This means that the principles of law established by the Supreme Court must be followed by lower courts and even the Supreme Court itself, unless a larger bench of the Supreme Court revises or overturns the previous decision” 22. The Article 141 of Constitution of India demonstrates that principles of law established by the Supreme Court must be followed by lower courts and even the Supreme Court itself, unless a larger bench of the Supreme Court revises or overturns the previous decision. Printed from counselvise.com 92 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 23. In terms of the aforesaid facts and circumstances and observations following the guiding principle of law laid down by the Hon’ble Apex Court in the case of SKSEL (supra), read with Article 141 of the Constitution of India, it is incumbent upon the tribunal to consider a relevant judgment of Hon’ble Apex Court that exists on the day of the order to be rectified or even if it is passed subsequently. In case, the relevant judgment of the Hon’ble Apex Court or Jurisdictional High Court had omitted attention of the tribunal that will constitute a mistake apparent from record, which merits to be rectified under the provisions of Section 254(2) of the Act. Since the issue in the impugned order of tribunal has an absolute correlation with the issue dealt with in KIIT (supra) and the same has left attention in the impugned order by ITAT, we are of the strong conviction that there is a mistake apparent from record to be rectified within the realm of section 254(2) of the Act, in terms of decision of Hon’ble Apex Court in the case of SKSEL (supra). 24. Our aforesaid view is further fortified by the decision of Division Bench of ITAT, Raipur in MA No. 37/RPR/2023 (arising out of ITA No. 97/RPR/2021), dated 02.06.2023 in the case of ACIT vs. S.S. Flexi Pack Pvt. Ltd., wherein the applicability of the judgment of Hon’ble Apex Court in the case ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (supra) along with host of judgments Printed from counselvise.com 93 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 have been discussed and deliberated at length, thereby concluded that an order of Hon’ble Apex Court on the subject has retrospective effect unless it is intended that the judgment be given a prospective applicability, thus, non- consideration of an order of Jurisdictional High Court or of the Supreme Court can be said to be a mistake apparent from record. The relevant observations of the tribunal in the case of S.S. Flexi Pack Pvt. Ltd.(supra), are extracted hereunder: 9. We have given a thoughtful consideration to the issue and find that a similar issue had been adjudicated by the Tribunal while disposing off a bunch of miscellaneous applications, viz. MA No.01/RPR/2023 & Others, vide a consolidated order passed in the case of DCIT, Circle-1(1), Bhilai Vs. N.R Wires Pvt. Ltd. & Ors, dated 29.05.2023, wherein the Tribunal after considering the submissions of the Ld. ARs had recalled the respective orders that were passed by it while disposing off the appeals, observing as under: “8. Per contra, the Ld. Authorized Representatives (“ARs”, for short) for the respective assessee’s had come forth with multi-facet contentions to drive home their claim that the orders passed by the Tribunal while disposing off the appeals were not amenable for rectification under sub-section (2) of Section 254 of the Act. We shall hereinafter deal with the respective contentions of the Ld. ARs. 9. S/shri Abhishek Mahawar and Nikhilesh Begani, the Ld. ARs for respondents at Sr.No.1 and at Sr.No.29 & 31 objected to the miscellaneous applications filed by the department. It was submitted by the Ld. ARs that the Tribunal was divested of its jurisdiction to carry out rectification of its orders u/s. 254(2) of the Act on the basis of the subsequent judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. Commissioner of Income Tax-I (supra). The Ld. ARs in order to fortify their contention had drawn support from the judgment of the Hon’ble Supreme Printed from counselvise.com 94 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Court in the case of Mepco Industries Ltd. Vs. CIT & Ors. (2009) 319 ITR 208 (SC). 10. Although at the first blush the aforesaid claim of the Ld. AR’s appeared to be very attractive, but as the facts involved in the case of Mepco India Ltd. (supra) are found to be distinguishable as against those involved in the case before us, therefore, the reliance placed on the same would not assist their case. In the case before the Hon’ble Apex Court, the assessee appellant which was engaged in the business of manufacturing of potassium chlorates had received power subsidy for two years. The power subsidy received was initially offered by the assessee as a “revenue receipt” in its return of income. However, the assessee thereafter in its application filed u/s. 264 of the Act by relying upon the judgment of the Hon’ble Apex Court in the case of CIT Vs. P.J. Chemicals Ld., (1994) 210 ITR 830 (SC), had claimed that the amount of subsidy received was a “capital receipt” and hence, not liable to be taxed. The aforesaid revision petition filed by the assessee applicant u/s.264 of the Act was allowed by the CIT vide his order dated 30.04.1997. Subsequent to the aforesaid order, the Hon’ble Apex Court in the case of Sahney Steel and Press Works Ltd. (1997) 228 ITR 258 (SC) had held that the incentive subsidy in the case before them was a “revenue receipt” and hence, was liable to be taxed u/s.28 of the Act. The decision of the Hon’ble Apex Court was based on a detailed examination of the subsidy scheme formulated by the Government of Andhra Pradesh. It was observed by the Hon’ble Apex Court that the incentives would not be available until and unless production had commenced. The Hon’ble Apex Court had observed that as the incentives which were given as refund of sales tax and subsidy on power consumed for production to which the assessee was entitled only after commencing its production, and was not in the nature of a payment made directly or indirectly for setting up the industries, therefore, the same was a “revenue receipt”. The CIT after considering the judgment of the Hon’ble Apex Court in the case of Sahney Steel and Press Works Ltd. (supra) dated 19.09.1997, vide his order of rectification u/s.154 dated 30.03.1998, held that as the power tariff subsidy received by the assessee after commencement of its business was an operational subsidy, therefore, the same was not a “capital receipt”. 11. Aggrieved the assessee carried the matter by way of a writ petition before the Hon’ble High Court of Madras. The Hon’ble High Court concluded that the CIT subsequent to the judgment of Hon’ble Apex Court in the case of Sahney Steel and Press Works Ltd. (supra) was right in treating the receipt of subsidy as a “revenue receipt”. 12. On further appeal, the Hon’ble Apex Court after deliberating on the scope of Section 154 of the Act, observed, that as the same was taken Printed from counselvise.com 95 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 recourse to by the CIT on the basis of a “change of opinion”, therefore, he had clearly exceeded his jurisdiction. At this stage, it would be relevant to point out that the Hon’ble Apex Court, had observed that as the issue that had formed the very basis for rectification of the order u/s.154 of the Act required examination of the nature of subsidy that was received by the assessee, therefore, the said exercise could not have been undertaken by the CIT in the garb of his jurisdiction for rectifying a mistake. Apart from that, it was observed by the Hon’ble Apex Court that as the CIT while passing order u/s.264 of the Act dated 30.04.1997 had taken a view that the subsidy received by the assessee was not taxable as it was a “capital receipt”, therefore, the view subsequently taken by him to the contrary after the judgment of the Hon’ble Apex Court in the case of Sahney Steel and Press Works Ltd. (supra) by treating the said subsidy as a “revenue receipt” was a classic illustration of “change of opinion.” In sum and substance, as the CIT while taking recourse to Section 154 of the Act had recharacterized the subsidy received by the assessee as a “revenue receipt”, which was earlier held by him vide his order passed u/s.264 of the Act dated 30.04.1997 as a “capital receipt”, it was, thus, on the basis of the said fact that the Hon’ble Apex Court had held that jurisdiction for rectifying a mistake could not have been assumed on the basis of a “change of opinion”. 13. We are unable to persuade ourselves to subscribe to the claim of the Ld. AR’s that the Hon’ble Apex Court in the case of Mepco Industries Ltd. Vs. CIT(supra), had held that an order passed by the Tribunal which is not found to be in conformity with the ratio decidendi of a subsequent judgment of the Hon’ble Apex Court cannot be rectified under sub section (2) of Section 254 of the Act. Considering the distinguishable facts that were involved in the case of Mepco Industries Ltd. Vs. CIT (supra), we are of the considered view that as in the case of the present assessee before us the department is only seeking rectification of the order passed by the Tribunal, i.e. for the limited purpose of bringing the same in conformity with the judgment of the Hon’ble Supreme Court in the case of Checkmate Services P. Ltd. Vs. Commissioner of Income Tax- I (supra), therefore, the reliance placed by the Ld. ARs on the aforesaid judgment would by no means assist their case. 14. We shall now deal with the reliance placed by S/Shri Abhishek Mahawar & Nikhilesh Begani, the Ld. ARs on the judgment of the Hon’ble Apex Court in the case of CIT Vs. Reliance Telecom Limited (2022) 440 ITR 1 (SC). The Ld. ARs by referring to the aforesaid judgment had drawn support from the observation of the Hon’ble Apex Court, wherein it was observed that the powers u/s.254(2) of the Act are akin to those under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. The Ld. ARs referred to aforesaid observations of the Hon’ble Apex Court and took us through Order XLVII, Printed from counselvise.com 96 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Rule 1 of the Code of Civil Procedure (5 of 1908), Page 115 of APB. 15. The Ld. ARs submitted that as per “Explanation” to Order XLVII, Rule 1 of the Code of Civil Procedure (5 of 1908) a subsequent decision of a superior court cannot form a ground for the review of a judgment, therefore, the power vested with the Tribunal u/s.254(2) of the Act, which have been held by the Hon’ble Apex Court to be akin were to be similarly construed. To sum up, the Ld. ARs by drawing support from the restriction placed on the powers of a court to review its order had assailed the seeking of rectification of the order of the Tribunal, which the department had sought under section 254(2) of the Act on the basis of the subsequent judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. Commissioner of Income Tax-I (supra). 16. We have given a thoughtful consideration to the aforesaid contention of the Ld. ARs and are unable to persuade ourselves to subscribe to the same. The Hon’ble Apex Court in the case of CIT (IT-4) Vs. Reliance Telecom Limited (2021) 133 taxmann.com 41 (SC), had held that the powers vested with the Tribunal under section 254(2) of the Act are akin to Order XLVII, Rule 1 of CPC. However, the Ld. ARs had erred in loosing sight of the context in which the said observations were recorded by the Hon’ble Apex Court. The Hon’ble Apex Court had observed that in the case before it the Tribunal which had originally passed a detailed order and held the payment made by the assessee company for purchase of software, as royalty, had thereafter, in exercise of powers u/s.254(2) completely recalled its earlier order dated 06.09.2013 and re-heard the entire appeal on merits as if it was deciding the appeal against the order passed by the CIT. It was observed by the Hon’ble Apex Court that the Tribunal in exercise of powers under section 254(2) could only rectify/correct any mistake apparent from record. In our considered view, the reference by the Hon’ble Apex Court to Order XLVII, Rule 1 of CPC, 1908 was for the purpose of making it clear that the Tribunal in exercise of powers vested u/s. 254(2) cannot revisit its earlier order and go into the details on merits. The Ld. ARs interpretation, if accepted, would mean that the Tribunal in exercise of Section 254(2) can review an order. The Hon’ble Apex Court in its order had clearly observed that the Tribunal in exercise of powers u/s. 254(2) cannot review its order, i.e. revisit its earlier order and go into details on merits. Be that as it may, it was clearly observed by the Hon’ble Court that the Tribunal in exercise of powers u/s.254(2) can only rectify/correct any mistake apparent from record. Our aforesaid view is supported by the judgment of a three judge bench of the Hon’ble Apex Court in the case of Income Tax Officer Vs. Ashok Textiles Ltd. (1961) 41 ITR 732 (SC). The Hon’ble Apex Court in its aforesaid order in the case of Ashok Textiles Ltd. (supra) that was rendered in context of Section 35 of 1922 Act (pari materia to Section 154), had observed that the restrictive operation of power of review under Order XLVII, Rule 1 of Printed from counselvise.com 97 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Code of Civil Procedure, 1908 is not applicable in case of Section 35 of 1922 Act. We, thus, are of the considered view, that as held by the Hon’ble Apex Court in the case of Reliance Telecom Limited (supra) though the Tribunal u/s.254(2) can rectify/correct any mistake apparent from record but cannot review its order, i.e. revisit its earlier order and go into details on merits, therefore, the contention of the Ld. ARs who have tried to read the restriction placed on review of an order by a court as provided in the “Explanation” to order XLVII, Rule 1 into the scope of power of the Tribunal to rectify any such mistake apparent from record cannot be accepted. On the contrary, we find that the issue leading to filing of the present miscellaneous applications by the department, i.e. as to whether an order passed by the Tribunal while disposing off an appeal can be rectified u/s. 254(2) of the Act for the purpose of bringing the same in conformity with a subsequent judgment of the Hon’ble Apex Court or that of the Hon’ble Jurisdictional High Court is squarely covered by the judgments of the Hon’ble Apex Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC) and S.A.L Narayana Row, CIT Vs. Model Mills Nagpur Ltd. (1967) 64 ITR 67 (SC) and thus, is no more res-integra. 17. Apropos the reliance placed by the Ld. ARs on the judgement of the Hon’ble High Court of Kerala in the case of M/s. Malabar Regional Co- operative Milk Producers Union Ltd. Vs. The Commissioner of Central Exercise, C.E Appeal No.10 of 2019 dated 06.12.2019, we are of the considered view that as the issue had been settled and thus, is no more res- integra pursuant to the judgments of the Hon’ble Apex Court in the case of Saurashtra Kutch Stock Exchange Ltd.(supra) and Model Mills Nagpur Ltd. (supra), wherein it has been held that if a point is covered by the decision of the Hon’ble Supreme Court or that of the Hon’ble Jurisdictional High Court rendered prior to or even subsequent to the order proposed to be rectified, then it could be said to be a mistake apparent from record u/s.254(2) of the Act and could be corrected by the Tribunal. We, thus, respectfully following the aforesaid judgments of the Hon’ble Apex Court find favour with the claim of the Ld. DR that the orders passed by the Tribunal in the present appeals, i.e. to the extent it had vacated the additions of delayed deposit of employees share of contribution towards ESI and EPF is not in conformity with the judgment of the Hon’ble Supreme Court in the case of Checkmate Services (P) Ltd. Vs. CIT-1 (supra), had thus rendered the said orders as suffering from a mistake which being apparent from record makes it amenable for rectification under sub- section (2) of Section 254 of the Act. 18. Apropos the contention advanced by Shri G.S. Agrawal, Ld. AR for respondents at Sr. Nos.6 & 7, that the Tribunal after lapse of a period of six months from the end of the month in which the order proposed to be rectified was passed was functus officio for rectifying the said order, we are unable to persuade ourselves to subscribe to the same. We, say so, for the reason that the scope of sub-section (2) of Section 254 had been looked Printed from counselvise.com 98 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 into by the Hon’ble Apex Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC). The Hon’ble Apex Court had observed that the power vested with the Tribunal to rectify a mistake in its order passed while disposing off an appeal deals with two situations, viz. (i) rectifying any mistake apparent from record on a suo-motto basis within a time period of four years from the date of the order; and (ii) rectifying the mistake that was brought to the notice of the Tribunal either by the assessee or by the A.O. For the sake of clarity, the relevant observations of the Hon’ble Apex Court in the case of Saurashtra Kutch Exchange Ltd. (supra) are culled out as under: “…….orders passed by the Appellate Tribunal on appeal shall be final\". Sub-section (2) enacts that the Tribunal may at any time within four years from the date of the order rectify any mistake apparent from the record suo motu. The Tribunal shall rectify such mistake if it is brought to notice of the Tribunal by the assessee or the Assessing Officer. 22. Sub-section (2) thus covers two distinct situations; (i) It enables the Tribunal at any time within four years from the date of the order to amend any order passed under sub-section (1) with a view to rectify any mistake apparent from the record; and (ii) It requires the Tribunal to make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. 23. It was submitted that so far as the first part is concerned, it is in the discretion of the Tribunal to rectify the mistake which is clear from the use of the expression `may' by the Legislature. The second part, however, enjoins the Tribunal to exercise the power if such mistake is brought to the notice of the Tribunal either by the assessee or by the Assessing Officer. The use of the word `shall' directs the Tribunal to exercise such power.” Also a similar view was earlier taken by the Hon’ble Apex Court in the case of Sree Ayyanar Spinning & Weaving Mills Ltd Vs. CIT (2008) 301 ITR 434 (SC). The Hon’ble Apex Court in its aforesaid order had held as under: “Analyzing the above provisions, we are of the view that Section 254(2) is in two parts. Under the first part, the Appellate Tribunal may, at any time, within four years from the date of the order, rectify any mistake apparent from the record and amend any order Printed from counselvise.com 99 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 passed by it under sub-section (1). Under the second part of Section 254(2) reference is to the amendment of the order passed by the Tribunal under sub-section (1) when the mistake is brought to its notice by the assessee or the Assessing Officer. Therefore, in short, the first part of Section 254(2) refers to suo motu exercise of the power of rectification by the Tribunal whereas the second part refers to rectification and amendment on an application being made by the Assessing Officer or the assessee pointing out the mistake apparent from the record. In this case we are concerned with the second part of Section 254(2). As stated above, application for rectification was made within four years. Application was well within four years. It is the Tribunal which took its own time to dispose of the application. Therefore, in the circumstances, the High Court had erred in holding that the application could not have been entertained by the Tribunal beyond four years.” 19. On a perusal of the aforesaid observations of the Hon’ble Apex Court, it is established beyond doubt that in case a mistake in the order passed by the Tribunal while disposing off the appeal is brought to its notice either by the assessee or by the department, then the Tribunal is obligated to exercise the powers vested with it under sub-section (2) of Section 254 of the Act without being subjected to the restriction of the time limit of six months (earlier four years), which is applicable only in a case where it seeks to rectify any mistake apparent from record on a suo-motto basis. We, thus, finding no substance in the aforesaid contention of Shri G.S. Agrawal, reject the same. We shall now deal with the claim of Mr. Agrawal that as the legislature in all its wisdom in order to avoid any undue hardships to the assessee’s had vide the Finance Act, 2021 made available on the statute “Explanation 2” to Section 36(1)(va) and “Explanation 5” to Section 43B of the Act only with prospective effect from 01.04.2021, wherein it was clarified that the provisions of Section 43B would not be applicable to a sum received by the assessee from any of his employees to which the provisions of sub- clause (x) of clause (24) of Section 2 applies, which aspect had not been looked into and adjudicated upon by the Hon’ble Supreme Court in the case of Checkmate Services (P) Ltd. (supra), therefore, the order passed by the Printed from counselvise.com 100 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Tribunal wherein the said issue had been deliberated at length could not be held to be suffering from any mistake apparent from record u/s.254(2) of the Act. We are unable to persuade ourselves to subscribe to the aforesaid contention of the Ld. AR. As the aforesaid respective amendments to Section 36(1)(va) and Section 43B of the Act were available on the statute and before the Hon’ble Supreme Court, therefore, we find no substance in the aforesaid contention of the Ld. AR. 20. We shall now deal with the contentions of Shri Praveen Jain, Ld. AR for respondent at Sr. No.28. It was stated by him that the addition of the delayed deposit of ESI/EPF of Rs.2,16,046/- that was made by the A.O had resulted to double addition as the said amount was separately offered by the assessee as an addition in its return of income. It was averred by Mr. Jain that the said addition had, thereafter, been vacated by the Tribunal while disposing off the assessee’s appeal in ITA No.64/RPR/2021 dated 18.07.2022. On the basis of the aforesaid facts, it was submitted by Mr. Jain that the miscellaneous application filed by the department may not be admitted. We are unable to accept the aforesaid contention of the Ld. AR. We, say so, for the reason that as the solitary issue which we are seized of and confined to in the present application is the maintainability of the claim of the department, which under sub- section (2) of Section 254 of the Act had sought for rectification of our order passed while disposing off the appeal, on the ground that the view therein taken is not found to be in conformity with the subsequent judgment of the Hon’ble Apex Court in the case of Checkmate Services (P) Ltd. (supra). Accordingly, the aforesaid contention of the Ld. AR being totally out of context and beyond the scope of our jurisdiction while disposing off the present applications, is rejected. 21. Shri Y.K Mishra, Ld. AR for the respondents at Sr. Nos. No.8, 9-11,13 & 16-17 had, inter alia, stated that in case the department was aggrieved with the order of the Tribunal, then, the remedy available with it was to file an appeal before the Hon’ble High Court and not to seek rectification of the order u/s. 254(2) of the Act. We are unable to persuade ourselves to subscribe to the contention of the Ld. AR. As the remedy available with the department to file an appeal before the Hon’ble High Court u/s. 260A of the Act operates in an independent field, which in no manner jeopardizes its right for seeking rectification of a mistake in the order passed by the Tribunal under sub-section (2) of Section 254 of the Act, therefore, the said contention being devoid and bereft of any merit cannot be accepted. 22. Ms. Puja Bajaj, Ld. AR for the respondent at Sr. No.27 & 33 had stated that as the issue, i.e as to whether or not the delayed deposit of the employee’s share of contribution towards labour welfare funds, i.e. PF & ESI by the assessee-employer was to be held as the latters income, was a debatable issue at the time of processing of the return of income, therefore, Printed from counselvise.com 101 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 the same was beyond the purview of Section 143(1) of the Act. The Ld. AR in order to buttress her aforesaid claim had relied on the orders of ITAT, Mumbai Bench “D” in the case of Della Adventure and Resorts Pvt. Ltd. Vs. National Faceless Appeal Centre (NFAC) (2022) 66 CCH 28 (Mumbai) and that of the ITAT, Delhi Bench, “G” in the case of Garg Heart Centre & Nursing Home Private Limited & Ors. Vs. Assistant Commissioner of Income Tax & Ors. (2022) 65 CCH 521 (Delhi) (copies placed on record). As observed by us hereinabove, the challenge of the Ld. AR to the validity of the jurisdiction assumed by A.O u/s.143(1) of the Act for making addition of the delayed deposit of employees share of contributions towards ESI & EPF by the assessee-employer, cannot be dealt with by us while disposing off the present miscellaneous applications of the department. As the aforesaid contention of the Ld. AR cannot be considered in the course of the present applications, therefore, we reject the same. 23. Shri Mahendra Agrawal, Ld. AR for the respondent at Sr. No.30 had, inter alia, stated that its claim that the addition of the delayed deposit of employee’s share of contributions towards EPF and ESI could not have been made u/s.143(1) of the Act had not been adjudicated by the Tribunal while disposing off the assessee’s appeal in ITA No.102/RPR/2021. In this regard, we may herein observe that in case the assessee was of the view that the order passed by the Tribunal suffered from any mistake, then, the recourse available with him was to prefer a miscellaneous application seeking rectification of the said mistake. Be that as it may, the aforesaid contention of the assessee would not be relevant at the stage of adjudicating the maintainability of the present miscellaneous application filed by the revenue. Apropos the claim of Shri Agrawal, Ld. AR that the “Explanation-5” of Section 43B and “Explanation 2” of Clause (va) of Section 36(1) of the Act, which provides that the delayed deposit of employee’s share of contribution towards labour welfare funds would not be saved by the provisions of Section 43B of the Act had been made available on the statute vide the Finance Act, 2021 w.e.f. 01.04.2021, therefore, the same would have no bearing on the case of the assessee for A.Y.2018-19, we are unable to concur with the same. As the “Explanation 5” of Section 43B and “Explanation 2” of Section 36(1)(va) of the Act were both available on the statute at the time of judgment of the Hon’ble Apex Court, therefore, the aforesaid contention of the Ld. AR, wherein he had tried to distinguish the facts involved in case of the assessee as against those before the Hon’ble Apex Court being devoid and bereft of any merit is liable to be rejected. 24. Shri Sunil Kumar Agrawal, the Ld. AR for respondents at Sr. No. 3, 35, 37 & 38 had endorsed the submissions advanced by S/Shri Nikhilesh Begani and Abhishek Mahawar (supra). Additionally, the Ld. AR in order to Printed from counselvise.com 102 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 buttress his claim that the department could not have on the basis of a subsequent judgment of the Hon’ble Apex Court in the case of Checkmate Services (P) Ltd. (supra) rectified its order under section 254(2) of the Act had pressed into service the judgment of Hon’ble Apex Court in the case of DCIT Vs. Simplex Concrete Piles (India) Ltd. (2013) 358 ITR 129 (SC). Apart from that, the Ld. AR submitted that the DCIT, CPC, Bengaluru could not have made an addition of the delayed deposit of the employees’ share of contribution towards ESI/EPF by taking recourse to a prima facie adjustment u/s.143(1) of the Act. The Ld. AR in support of his contention had relied on the order of the ITAT, Mumbai in the case of M/s. P.R. Packing Service Vs. ACIT, ITA No.2376/Mum/2022 dated 07.12.2022. Alternatively, the Ld. AR had submitted that in case the application filed by the department is accepted and the matter is recalled, then the respondent may be allowed to claim the payment of ESI and EPF under consideration as a business expenditure u/s.37(1) of the Act. The Ld. AR in support of his aforesaid contention had relied on the order of ITAT, Cuttack Bench, in the case of ITO, Ward-1(1), Balasore Vs. Tapan Jana & Ors, ITA No.27 & 28/CTK/2022 dated 16.12.2022. 25. We have given a thoughtful consideration to the aforesaid contentions of the Ld. AR. Apropos the judgment of the Hon’ble Apex Court in the case of Simplex Concrete Piles (India) Ltd. (supra) as had been relied upon by the Ld. AR, we are of the considered view that as the same was rendered in context of the jurisdiction of an A.O to reopen a concluded assessment u/s.147 of the Act on the basis of reversal of the legal position by a subsequent judgment of the Hon’ble Apex Court, therefore, the same would not come to the respite of the assessee as regards the issue before us. Apropos the contentions advanced by the Ld. AR, wherein he has sought relief in case the applications filed by the department are allowed, viz. (i) that no addition of the delayed deposit of the employees share of contributions towards EPF & ESI could have summarily been made u/s.143(1)(a) ; and (ii) that the employee’s share of contribution towards ESI/EPF would even otherwise be allowable as a deduction u/s.37(1) of the Act, the same cannot be accepted by us. We, say so, for the reason that the limited issue before us is as to whether or not the miscellaneous applications filed by the department u/s. 254(2) of the Act are maintainable or not. The reliefs/rectification of mistakes as had been sought by the assessee respondent falls beyond the realm of adjudication of the present applications. Our aforesaid conviction is all the more fortified by the fact that as held by the Hon’ble Apex Court in the case of Saurashtra Kutch Stock Exchange Ltd. (supra) and Sree Ayyanar Spinning & Weaving Mills Ltd. (supra), the Tribunal on a suo-motto basis can rectify a mistake apparent from record within a period of six months from the end of the month in which the order was passed. Be that as it may, in case the assessee had within the stipulated time period contemplated in sub- section (2) of Section Printed from counselvise.com 103 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 254 of the Act filed any application pointing out any mistake in the order passed by the Tribunal while disposing off the appeal, then, the said claim will be considered while disposing off the said applications. 26. Shri Nilesh Jain, the Ld. AR for the assessee respondent at Sr. No.2 had relied on the contentions placed by S/sshri Abhishek Mahawar, Nikhilesh Begani and G.S. Agrawal. Alternatively, it was submitted by the Ld. AR that the present application was filed by the department to circumvent its failure to carry the matter in appeal before the Hon’ble High Court. 27. We have given a thoughtful consideration and are unable to persuade ourselves to subscribe to the aforesaid contention of Mr. Jain. As the filing of an appeal before the Hon’ble High Court on the one hand, and seeking rectification of a mistake u/s.254(2) of the Act, both operate in their respective independent fields and are in no way overlapping, therefore, we are unable to concur with the Ld. AR that as the department has not assailed the order of the Tribunal by filing an appeal u/s.260A of the Act before the Hon’ble High Court, therefore, the application filed by it under sub-section (2) of Section 254 would not be maintainable. We, thus, finding no substance in the aforesaid contention of the Ld. AR, reject the same. 28. Shri Nitin Goyal, Ld. AR for respondents at Sr Nos. 25, 26 & 34 had further objected to the application filed by the department under sub- section (2) of Section 254 of the Act by drawing support from the judgment of the Hon’ble High Court of Kerala in the case of P.T. Manuel & Sons Vs. CIT (2021) 129 taxmann.com. 29. We have perused the aforesaid order of the Hon’ble High Court of Kerala in the case of P.T Manuel & Sons (supra) and find that the same is distinguishable on facts. The issue before the Hon’ble High Court was as to whether the Tribunal could rectify its order passed in the case of the assessee on the basis of a subsequent view taken by them while disposing off the appeal of its sister concern. As the reliance placed by the Ld. AR on the aforesaid order is totally misconceived and not in context of the issue before us, therefore, the same by no means would assist his case. As regards the reliance placed by the Ld. AR on the judgment of the Hon’ble High Court of Calcutta in the case of Jiyajeerao Cotton Mills Ltd. Vs. ITO, (1981) 130 ITR 710 (Cal.), we find that the Hon’ble High Court had observed, that as the law laid down by the Hon’ble Supreme Court cannot be said to have retrospective operation in the sense that although a debate, doubt or conflict of a judicial opinion is resolved and settled by the Supreme Court but it does not obliterate the existence of such debate, doubt or conflict prior to such decision. As the Hon’ble Apex Court in the case of Saurashtra Kutch Stock Exchange Ltd. (supra) and Model Mills Nagpur Ltd. (supra), had held Printed from counselvise.com 104 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 that if a point is covered by a decision of the Hon’ble Jurisdictional High Court or Hon’ble Supreme Court rendered prior to or even subsequent to the order proposed to be rectified, then, it could be said to be a mistake apparent from record u/s. 254(2) of the Act and could be corrected by the Tribunal. We, thus, respectfully following the aforesaid judgments of the Hon’ble Apex Court are unable to concur with the contentions placed by the Ld. AR. 30. Apropos the assessee placed at Sr. No.32 (MA No.34/ RPR/2023), we find that written submissions have been filed before us. The assessee has objected to the miscellaneous application filed by the department on the ground that, viz. (i) that as the entitlement of the assessee for deduction of the delayed deposit of employees share of contribution towards ESI & EPF was a debatable issue, hence, the same could not have been disallowed u/s.143(1) of the Act; (ii) that as the Tribunal while disposing off the appeal of the assessee had relied upon its earlier order in the case of Ind Synergy Ltd., ITA No.312/RPR/2016 dated 10.03.2022, wherein it was held that the amendment to Section 43B and Section 36(1)(va) that was made available on the statute vide the Finance Act, 2021 was applicable with prospective effect from 01.04.2021, therefore, the rectification proceedings could not have been resorted on the basis of a subsequent “change of opinion”; (iii) that though the non- consideration of a judgment of a superior court as was available at the time of passing of the order would render the order of the Tribunal as suffering from a mistake apparent from record but the same would not apply in case of a judgment rendered subsequently; and (iv) that as held by the Hon’ble Supreme Court in the case of Reliance Telecom Ltd. (supra) even in a case where the Tribunal had decided the appeal erroneously on merits, the same would not justify vesting of jurisdiction for recalling of the said order. 31. We have given a thoughtful consideration to the aforesaid submissions filed by the assessee before us. As observed by us hereinabove, it is the claim of the assessee that the deduction of the delayed deposit of employees share of contribution towards ESI & EPF was a debatable issue and an addition of the same could not have been summarily made u/s.143(1) of the Act. We may herein reiterate that as the aforesaid issue does not fall within the realm of our jurisdiction while disposing off the present miscellaneous application filed by the department, therefore, we refrain from considering the same. Apropos the claim of the assessee that now when the Tribunal while disposing off the appeal had relied on its earlier order in the case of Ind Synergy Ltd. (supra), and had categorically observed that the amendments to Section 43B and Section 36(1)(va) of the Act were applicable prospectively w.e.f. 01.04.2021, therefore, the same could not have been rectified on the basis of a subsequent judgment of the Hon’ble Supreme Court, we are unable to accept the same. We may herein observe that the aforesaid issue had already been dealt with and rejected by Printed from counselvise.com 105 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 us while dealing with similar contentions as were advanced by the Ld. ARs for the aforementioned assesses. Also, the judgment of the Hon’ble Supreme Court in the case of Reliance Telecom Ltd. (supra) as had been relied upon by the assessee had been considered by us while dealing with the contentions of the aforementioned Ld. ARs. We, thus, not finding any substance in the written submissions filed by the assessee before us, reject the same. 32. We have given a thoughtful consideration to the issue before us, and are unable to persuade ourselves to subscribe to the contentions advanced by the Ld. ARs for the respective assessees. Admittedly, it is a matter of fact borne from record that the view taken by the Tribunal, wherein it had vacated the additions made by the AO’s w.r.t delayed deposit of employee’s share of contribution towards labour welfare funds, viz. EPF & ESI by the respective assessee-employers, i.e. beyond the stipulated time period contemplated in the said respective Acts is not in conformity with the view taken by the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. Commissioner of Income Tax-I (supra). The genesis of the present controversy is as to whether or not the aforesaid subsequent judgment of the Hon’ble Apex Court would render our orders passed while disposing off the present appeals, wherein a view to the contrary had been taken, as suffering from a mistake which being apparent, patent, obvious and glaring from record would render the same amenable for rectification u/s. 254(2) of the Act? 33. In our considered view, the aforesaid issue can safely be resolved by referring to the judgment of the Hon’ble Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC). The Hon’ble Apex Court by referring to the order of the Hon’ble High Court of Gujarat in the case of Suhrid Geigy Ltd. Vs. CIT (1999) 237 ITR 834 (Guj), had observed, that if a point is covered by the decision of the Hon’ble Jurisdictional High Court rendered prior to or even subsequent to the order proposed to be rectified, then it could be said to be a mistake apparent from record u/s. 254(2) of the Act and could be corrected by the Tribunal. The Hon’ble Apex Court drawing support from Blackstonian theory, had observed that it is not the function of the court to pronounce a “new rule” but to maintain and expound the old one. The Hon’ble Apex Court had observed that if a subsequent decision altered the earlier one, then the later decision does not lay down any new law but only discovers the correct principle of law which had to be applied retrospectively. It was further observed by the Hon’ble Apex Court that even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. Referring to its historical decision in the case of I.C Golaknath Vs. State of Punjab & ors, 1967 SCR (2) 762, it was further observed by the Hon’ble Supreme Court that though the Court in the said judgment Printed from counselvise.com 106 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 had accepted the doctrine of “prospective overruling”, however, the same was an exception to the general rule of the doctrine of precedent. For the sake of clarity, the relevant observations of the Hon’ble Apex Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (supra) are culled out as under: “40. The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a \"mistake apparent from the record\"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a \"mistake apparent from the record\" which could be rectified under Section 254(2). 41. A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj). It was held by the Division Bench of the High Court that if the point is covered by a decision of the Jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said to be \"mistake apparent from the record\" under Section 254 (2) of the Act and could be corrected by the Tribunal. 42. In our judgment, it is also well- settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a `new rule' but to maintain and expound the `old one'. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. 43. Salmond in his well-known work states; \"The theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatea or accounts that have been settled in the meantime\". (emphasis supplied) 44. It is no doubt true that after a historic decision in Golak Nath v. Union of India, (1967) 2 SCR 762, this Court has accepted the doctrine of `prospective overruling'. It is based on the philosophy: \"The past cannot always be erased by a new judicial declaration\". It may, however, be stated that this is an exception to the general rule of the doctrine of precedent. Printed from counselvise.com 107 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 45. Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality.” Also, we find support from the judgment of the Hon’ble Supreme Court in the case of S.A.L. Narayana Row, CIT v. Model Mills Nagpur Ltd. [1967] 64 ITR 67 (SC), wherein the levy of additional tax on excess dividend was declared by the High Court of Bombay as illegal. The assessee company had by relying on the said decision of the Hon’ble Jurisdictional High Court filed an application with the Income Tax Officer for refund of the additional tax that was deposited by it. The Income-tax Officer declined to accede to the request of the assessee on the ground that the assessment was completed long before the judgment was pronounced by the High Court. The revision application filed by the assessee before the Commissioner of Income Tax under section 33A was also rejected. Against the order passed by the Commissioner of Income Tax the assessee company filed a writ petition with the High Court. The Hon’ble High Court allowed the assessee’s petition and directed the Commissioner of Income Tax to revise the order and refund the taxes which were illegally collected. On appeal by the revenue against the order of the High Court which had decided the issue in favour of the assessee, the Supreme Court upheld the decision of the High Court in which the Income-tax Officer was directed to revise the order and rectify the mistake. In Kil Kotagiri Tea and Coffee Estates Co. Ltd. v. ITAT [1988] 174 ITR 579 (Ker.), the Hon’ble High Court of Kerala held that an order of assessment passed upon an interpretation or application of law which is ultimately found to be wrong in light of judicial pronouncements rendered subsequently discloses a mistake apparent from the record. The Hon’ble High Court of Karnataka in the case of Mysore Cements Ltd. v. Deputy Commissioner of Commercial [1994] 93 STC 464, had observed, that it was needless to point out that when a point is covered by a decision of the Supreme Court or concerned Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point and it also ceases to be a point requiring elaborate arguments or detailed investigation/enquiry. The Hon’ble High Court of Andhra Pradesh in the case of B.V.K. Seshavataram Vs. CIT [1994] 210 ITR 633 (AP) followed the ratio of the decision of the Supreme Court in the case of S.A.L. Narayana Row [1967] 64 ITR 67(SC), and came to the conclusion that a subsequent decision can form a valid basis for rectifying an order of assessment under section 154 of the Income-tax Act, 1961. The Hon’ble High Court of Madras in the case of M. K. Kuppuraj Vs. ITO [1995] 211 ITR 853 (Mad.), was of the view that an assessment made contrary to a judgment Printed from counselvise.com 108 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 subsequently rendered by jurisdictional High Court constitutes an error on the face of the record amenable to rectification proceedings under section 154 of the Income tax Act, 1961. The Hon’ble High Court of Delhi in the case of Lakshmi Sugar Mills Co Ltd. Vs. CIT (2012) 22 taxmann.com 300 (Delhi) referring to the judgment of the Hon’ble Apex Court in the case of Saurashtra Kutch Stock Exchange Ltd. (supra), had observed that as judges do not make law and only discover or find the law, therefore, a judicial decision acts retrospectively. It was observed by the High Court that where a decision of the Hon’ble Supreme Court overrules earlier decision, the views expressed in the later decision would have to be regarded as having always been the law. Also, we find that the issue in hand had exhaustively been looked into by the Hon’ble High Court of Punjab & Haryana in the case of CIT Vs. Smt. Aruna Luthra (2001) 252 ITR 76 (P & H). Issue before the Hon’ble High Court reads as under: “Can proceedings for rectification of an order passed under the provisions of the Income Tax Act, 1961, be initiated on the basis of a judgment delivered by the jurisdictional or a superior court after the passing of the said order?” The Hon’ble High Court on the basis of its exhaustive deliberations on the issue under consideration, had observed that the proceedings for rectification of an order passed under the provisions of Income Tax Act can be initiated on the basis of a judgment delivered by Jurisdictional High Court or a superior court after passing of the said orders. For the sake of clarity, the observations of the Hon’ble High Court are culled out as under: “13. Apparently, the argument of Mr. Bansal appears to be attractive. If the issue of error in the order is to be examined only with reference to the date on which it was passed, it may be possible to legitimately contend that it was legal on the date on which it was passed. The subsequent decision has only rendered it erroneous or illegal. However, there was no error much less than an apparent error on the date of its passing. Thus, provision of Section 154 is not applicable. However, such a view shall be possible only if the provision were to provide that the error has to be seen in the order with reference to the date on which it was passed. Such words are not there in the statute. Resultantly, such a restriction cannot be introduced by the court. Thus, the contention raised by the counsel for the assessee cannot be accepted. 14. There is another aspect of the matter. In a given case, on Printed from counselvise.com 109 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 interpretation of a provision, an authority can take a view in favour of one of the parties. Subsequent to the order, the jurisdictional High Court or their Lordships of the Supreme Court interpret the same provision and take a contrary view. The apparent effect of the judgment interpreting the provision is that the view taken by the authority is rendered erroneous. It is not in conformity with the provision of the statute. Thus, there is a mistake. Should it still be perpetuated? If the contention raised on behalf of the assessee were accepted, the result would be that even though the order of the authority is contrary to the law declared by the highest court in the State or the country, still the mistake couldn't be rectified for the reason that the decision is subsequent to the date of the order. 15. Only the dead make no mistake. Exemption from error is not the privilege of mortals. It would be a folly not to correct it. Section 154 appears to have been enacted to enable the Authority to rectify the mistake. The legislative intent is not to allow it to continue. This purpose has to be promoted. The legislature's will has to be carried out. By placing a narrow construction, the object of the legislation shall be defeated. Such a consequence should not be countenanced. 16. Still further, it deserves mention that the Parliament has prescribed a period of four years for correction of the mistake. While assessment under Section 143 or 144 has to be normally made within a period of one or two years, the mistake can be rectified at any time during the period of four years. The obvious intention of the Legislature is that if the mistake has come to the notice of the authority within the prescribed time, it should not be allowed to continue. It should be rectified. Regardless of the fact that the limitation for passing an order of assessment or filing an appeal has elapsed. 17. Still further, the provision has inbuilt safeguards. It provides for the issue of notice. It ensures the grant of an opportunity. It limits the jurisdiction of the authority. The action can benefit the assessee as well as the Revenue. In this situation, there appears to be no ground for placing an unduly restricted interpretation on the provision. 18. Mr. Bansal contended that a judgment of a court operates only prospectively and not retrospectively. Thus, a decided cause cannot be re-decided. Is it so? 19. A court decides a dispute between the parties. The cause can involve decision on facts. It can also involve a decision on a point of law. Both may have bearing on the ultimate result of the case. When a court interprets a provision, it decides as to what is the Printed from counselvise.com 110 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 meaning and effect of the words used by the legislature. It is a declaration regarding the statute. In other words, the judgment declares as to what the legislature had said at the time of the promulgation of the law. The declaration is — This was the law. This is the law. This is how the provision shall be construed. 20. Julius Stone in ‘Social Dimensions of Law and Justice’ () Ist Indian Reprint 1999 (Chapter (XIV) while dealing with the subject of ‘Judge and Administrator in Legal Ordering’, observes as under:— “If, then, a main impulse underlying the stare decisis doctrine is that justice should respect reasonable reliance of affected parties based on the law as it seemed when they acted, this impulse still has force when reliance is frustrated by an overruling. Despite this, it has long been assumed that a newly emergent rule is to be applied not only to future facts, and to the necessarily past facts of the very case in which it emerges, but to all cases thereafter litigated, even if these involved conduct, which occurred before the establishment of the new rule. This has proceeded ostensibly on the conceptual basis, clearly formulated since Blackstone, that the new holding does not create but merely declares, law. So that any prior putative law under which the parties acted is to be regarded as simply not law”. (Emphasis supplied.) 21. The above observations clearly support the principle that the court merely declares law. An earlier decision as declared by the court is “simply no law”. 22. Notwithstanding the above observations, the issue of judge- made law being prospective or retroactive is not free from difficulty. However, the system as followed in Indian courts ensures a “suitable legal order”. It promotes “dignity and good repute of judicial institutions”. It is only equitable and fair that similar cases lead to identical results. 23. Mr. Sanjay Bansal contended that the judicial principle of retroactive operative of judge-made law has now been negated by the Parliament by introducing the ‘Explanation’ in Order 47 Rule 1. A subsequent decision is no longer a good ground for review. Thus, the counsel contended that the same principle should be followed while construing the provisions of the Income Tax Act. 24. This contention cannot be accepted. Firstly, because a Printed from counselvise.com 111 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 similar provision has not been made in S. 154. The plain language is materially different. Still further, we have the authoritative pronouncement of their Lordships of the Supreme Court in Income Tax Officer, Alwaye v. Asok Textiles Ltd., Alwaye AIR 1961 SC 699. It was held that the High Court had “fallen into an error in equating the language and the scope of Section 35 of the Act (Income Tax Act, 1922) with that of Order 47 Rule 1 CPC. The language of the two is different because according to Section 35 of the Act which provides for rectification of mistakes the power is given to the various income-tax authorities within four years from the date of any assessment passed by them to rectify any mistake ‘apparent from the record’ and in the Code of Civil Procedure the words are an error apparent on the face of the record and the two provisions do not mean the same thing”. As such, the contention raised by the learned counsel cannot be accepted. 25. Mr. Bansal also pointed out that in the case of Jiyajeerao Cotton Mills Ltd. v. Income Tax Officer (1981) 130 ITR 710 a Division Bench of the Calcutta High Court had categorically taken the view that the judgment of the Supreme Court does not have retrospective effect. This decision was affirmed by their Lordships of the Supreme Court as SLP (c) Nos. 8791- 8793 of 1980 were dismissed. Mr. Bansal also referred to the decision of the Andhra Pradesh High Court in Pingle Madhusudan Reddy v. Controller of Estate Duty, to contend that the judgment of the court does not operate retrospectively. 26. It is undoubtedly true that the view taken by the Andhra and Calcutta High Courts supports the argument of the petitioner. Even the Madras High Court has taken a view in favour of the assessee in State of Tamil Nadu v. K.S.M.G Meenambal and Co., () (1984) 56 STC 82 However, the view of the Kerala and Karnataka High Courts is to the contrary, In Kotagiri Tea and Coffee Estates Co. Ltd. v. Income Tax Appellate Tribunal () (1988) 174 ITR 579, the Kerala High Court relying upon the principle enunciated in ‘Salmond's Jurisprudence’ had held in favour of the Revenue. Similar view was expressed by the Karnataka High Court in Mysore Cemets Ltd. v. Deputy Commissioner of Commercial Taxes () (1994) 116 CTR (Karnataka) 284. 27. Learned counsel referred to the decision of a Bench of this Court in CIT v. Haryana State Co-operative Supply and Marketing Federation (1990) 182 ITR 53. In this case, it was inter alia observed that “once the matter has been decided by the High Court, it is not possible for the Department to carry out rectification on the solitary ground that in a later decision, the Printed from counselvise.com 112 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Supreme Court has impliedly overruled the decision”. In Hero Cycles Ltd. v. The State of Punjab, () (1995) 99 STC 611 and Ram Dass Rice and General Mills v. The State of Punjab, (1996) 100 STC 211 the opinion was in favour of the Revenue. 28. On an examination of the judgments cited by the counsel for the Assessee, it appears that the rectification was not sought on the basis of a binding decision of the jurisdictional High Court or the Supreme Court. There was no such judgment when the application under S. 154 had been filed. The pronouncement had come at a later stage when the prescribed period of four years had already expired. Thus, the decisions have been given in a different context. Thus, these are distinguishable from the facts of the case in hand. 29. The basic principle is the certainty of law. Even though considerations of justice, equity and fair-play sometimes compel courts to deviate from a view expressed in an earlier case, yet the common law principle of stare decisis has been followed with the avowed object of ensuring that the litigant must be able to act on the view expressed by a court. Law can't move with the wind. It is not a weather cock. The citizen is entitled to act on the basis of the law declared by the court. Once he acts, he should not be told that this summer is very hot. Thus, the law has changed even though the legislature has not intervened. The gnawing uncertainty has certainly to be avoided. 30. It was then contended that in a case where the Income Tax Officer intimates the assessee that the return has been accepted under Section 143(1), the provision of rectification cannot be invoked. Learned counsel placed reliance on the decision of their Lordships of the Supreme Court in Commissioner Of Income-Tax v. Hero Cycles (P) Ltd. (1997) 228 ITR 463 in support of his contention. 31. On a perusal of Section 154, we find that the provision does not provide for rectification only when a mistake in the order is detected. The mistake has to be on the record of the case. The record would include everything on the case file. The return, the evidence and the order are a part of the record. The mistake can be detected from anything on the file. Thus, even in case of an assessment under Section 143(1), it has not to be assumed that there can be no error apparent from the record. As for the decision in the case of Hero Cycles, the rule laid down by their Lordships is that the mistake can be of fact and law. However, the rectification can be made only 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”. We cannot read this decision to mean that only the order has to Printed from counselvise.com 113 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 be seen and not the record. Thus, the contention raised by the counsel cannot be accepted. 32. It was also contended that the decision of an authority decides the rights of the parties. It vests a right in them. The vested right can't be taken away except when specifically permitted by a retrospective law. 33. There is no quarrel with the proposition. However, what deserves notice is that the right, if any, is subject to the provisions of law. Section 154 clearly provides for the intervention of the Authority within the specified time. Subject to the condition that the mistake is apparent. The issue is not debatable. Thus, any right under an order is subject to the provision of the statute. That being so, there is no vested right which can be said to have been taken away.” 34. On the basis of our aforesaid deliberations read along with the settled position of law as had been laid down by the Hon’ble Courts, we are of the considered view that as a subsequent decision of the Hon’ble Supreme Court do not enact the law but declare the law as it always was, therefore, an order can be rectified on the basis of a subsequent judgment of the Hon’ble Supreme Court or that of the Hon’ble Jurisdictional High Court. Our aforesaid view is further fortified by Article 141 of the Constitution of India, which reads as under: “A law declared by the Hon’ble Supreme Court is binding on the Courts within the territory of India”. 35. Apart from that, we find that a “Third Member” of the ITAT, Mumbai, Bench “E” in the case of Kailashnath Malhotra Vs. JCIT, Special Range 56, Mumbai (2010) 129 TTJ 393 (Mum.), had after drawing support from the judgment of the Hon’ble Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC), observed that if the order passed by the Tribunal is not found to be in conformity with the judgment of the Hon’ble Supreme Court or that of the Hon’ble Jurisdictional High Court, which may be rendered prior to or subsequent to the impugned order then the same would constitute a mistake apparent from record amenable for rectification u/s. 254(2) of the Act. For the sake of clarity, the relevant observations of the Tribunal are culled out as under: “… I have absolutely no doubt in my mind that the non- consideration of a judgment of the Hon’ble Supreme Court or that of the Hon’ble jurisdictional High Court delivered prior to or even subsequent to the order constitutes a mistake apparent from record as has been held by the Hon’ble Supreme Court in Printed from counselvise.com 114 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 Saurashtra Kutch Stock Exchange Ltd. (supra). Similar view was expressed earlier by the Hon’ble Gujarat High Court in CIT Vs. Subodhchandra S Patel (2004) 265 ITR 445. In view of these judgments, it is vivid that even if the Hon’ble Supreme Court or the Hon’ble Jurisdictional High Court render a judgment after the passing of the order, the same has to be strictly followed. Interpretation of a statutory provision by the Hon’ble Supreme Court is always understood from the inception of the provision and it is never considered as a prospective ruling unless so specified.” On a perusal of the aforesaid order, it transpires that the Tribunal had observed that even if the Hon’ble Apex Court renders a judgment after passing of the order sought to be rectified, the same is to be strictly followed, as the judgment of the Hon’ble Apex Court is always understood from the inception of the provision and it is never considered as a prospective ruling unless so specified. Our aforesaid conviction is further fortified by the judgment of the Hon’ble Supreme Court in the case of M/s New Noble Educational Society Vs. The Chief Commissioner of Income Tax, (2023) 290 Taxman 206 (SC). The Hon’ble Apex Court in its aforesaid judgment had while departing from its previous rulings regarding the meaning of the term “solely” used in Section 10(23C)(vi) of the Act, had held that in order to avoid disruption, and to give time to institutions likely to be affected to make appropriate changes and adjustments, it would be in the larger interests of society that the law declared in the said judgment operates prospectively. For the sake of clarity, the relevant observations of the Hon’ble Supreme Court are culled out as under: “78. In the light of the foregoing discussion, the assessees’ appeals fail. It is however clarified that their claim for approval or registration would have to be considered in the light of subsequent events, if any, disclosed in fresh applications made in that regard. This court is further of the opinion that since the present judgment has departed from the previous rulings regarding the meaning of the term ‘solely’, in order to avoid disruption, and to give time to institutions likely to be affected to make appropriate changes and adjustments, it would be in the larger interests of society that the present judgment operates hereafter. As a result, it is hereby directed that the law declared in the present judgment shall operate prospectively. The appeals are hereby dismissed, without order on costs. On the basis of our aforesaid deliberations, it can safely be concluded that as and where the Hon’ble Apex Court had intended that its judgment be given a prospective applicability, a specific rider to the said effect as in the case of Printed from counselvise.com 115 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 M/s New Noble Educational Society Vs. The Chief Commissioner of Income Tax (supra) had been provided. However, we are afraid that no such rider is found in the judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. Commissioner of Income Tax-I (supra), which means that the same would have a retrospective application. We, thus, considering the facts involved in the case before us r.w the aforesaid settled position of law, are of the considered view, that as stated by the department in its miscellaneous application and, rightly so, as the view taken by the Tribunal in the captioned appeals is not found to be in conformity with the judgment of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. Vs. Commissioner of Income Tax-I (supra), therefore, the same had rendered the orders passed while disposing off the respective appeals as suffering from a mistake, which being apparent from record had therein made those amenable for rectification under sub-section (2) to Section 254 of the Act. 36. We, thus, in terms of our aforesaid observations allow the respective miscellaneous applications filed by the department u/s. 254(2) of the Act, and recall the respective orders that were passed by the Tribunal while disposing off the aforementioned appeals.” Respectfully following the aforesaid reasoning recorded by us while disposing off the aforesaid miscellaneous applications in MA Nos.01/RPR/2023 & Others, in the case of DCIT, Circle- 1(1), Bhilai Vs. N.R Wires Pvt. Ltd. & Ors (supra), we on the same terms recall the order that was passed by the Tribunal while disposing off the aforementioned appeal. 4. Resultantly, the miscellaneous application filed by the department in MA No.37/RPR/2023 is allowed in terms of our aforesaid observations. The registry is directed to fix the aforesaid appeal for hearing for the limited purpose of giving effect to the judgment of the Hon’ble Apex Court in the case of Checkmate Services P. Ltd. Vs. Commissioner of Income Tax-I (supra) on 13.06.2023 after putting both the parties to notice. Printed from counselvise.com 116 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 25. Considering the aforesaid decision / jurisprudence, respectfully following the same, we are of the considered view that the impugned order of the tribunal is suffering with a mistake apparent from record in terms of the ratio of law expounded by Hon’ble Apex Court in the case of SKSEL (supra), which still holds field and could not be dislodged by any contrary decision, we find substance in the contention of revenue raised in the present MA, the same therefore, justifies to be allowed by recalling the impugned order passed by tribunal in ITA No. 64/RPR/2020 dated 29.05.2023. The issues raised therein shall, therefore, be adjudicated afresh after taking into consideration the decision of Hon’ble Apex Court in the case of KIIT (supra), which has a strong / direct bearing qua the eligibility of assessee to challenge the validity of the jurisdiction assumed by the AO. 26. In result, MA No. 107/RPR/2023 of the revenue stands allowed, the registry is directed to recall the matter and fix it in the regular course of proceedings. The parties herein may be informed accordingly. Order pronounced in open court on 4th /06/2025. ___ (PARTHA SARATHI CHAUDHURY) Sd/- (ARUN KHODPIA) Ɋाियक सद˟ / JUDICIAL MEMBER लेखा सद˟ / ACCOUNTANT MEMBER रायपुर/Raipur; Ǒदनांक Dated 4th /06/2025 Vaibhav Shrivastav आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to : Printed from counselvise.com 117 ACIT-4(1), Raipur Vs. Ravi Sherwani MA No.107/RPR/2023 आदेशानुसार/ BY ORDER, // True Copy // (Senior Private Secretary) आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur 1. अपीलाथŎ / The Appellant- ACIT-4(1), Raipur 2. ŮȑथŎ / The Respondent- Ravi Sherwani, Raipur 3. The Pr. CIT, Raipur (C.G.) 4. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur 5. गाडŊ फाईल / Guard file. Printed from counselvise.com "