DCIT, NEW DELHI V. SH. BHUSHAN LAL SAWHNEY, NEW DELHI

MA 178/DEL/2022

AI Insights

The case involves the Revenue's attempt to recall a Tribunal order that had allowed the assessee's appeals concerning the assessment years 2007-08 to 2010-11. The Revenue contended that the Tribunal's decision was based on incomplete disclosure of facts by the assessee, specifically regarding foreign bank accounts. The Tribunal had initially allowed the assessee's appeals based on the absence of incriminating material found during a search operation. However, following new information about the assessee's foreign bank accounts, the Revenue sought to recall the Tribunal's order. The Tribunal dismissed the Revenue's application, citing the lack of jurisdiction to review its own decisions under Section 254(2) of the Income Tax Act, 1961.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 633484 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Other Referred Cases: CIT vs. Kabul Chawala, Reliance Petro Telecom Limited in Civil Appeal No.7110 and 7112 of 2021
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARPREET KAUR HANSRA
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Set aside; Search and seizure
• Section: 132

Judgement Text

" 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’, NEW DELHI BEFORE SH. S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SH. SUDHIR KUMAR, JUDICIAL MEMBER M.A.No. 175,176, 177, 178/Del/2022 ITA no.428,429,430,431/del/2017 Assessment Year: 2007-8, 2008-9, 2009-10,2010-11 Dy. Commissioner of Income Tax Central Circle-7 New Delhi Vs Late Bhushan Lal, through his legal Heirs Smt. Sneh Lata Sawhney, 6 Link Road Jungpura Extension, New Delhi (APPELLANT) (RESPONDENT) Appellant by Ms. Harpreet Kaur Hansra Sr. Dr. Respondent by Dr. Rakesh Gupta, Advocate Sh. Somil Aggarwal, Advocate Sh.Deepesh Garg, Advocate Date of hearing: 23/05/2025 Date of Pronouncement: 11/06/2025 ORDER PER SUDHIR KUMAR, JM: These miscellaneous applications have moved by the Revenue to recall the order of this Tribunal dated 01.06.2021 in 2 ITA No.428 to 431/del/2017 pertaining to A.Y.2007-08 to 2010- 2011. 2. The contention of the revenue is that the Tribunal has allowed the appeals filed by the assessee on the ground that during the course of search no incriminating material was found against the assessee for maintaining any bank accounts with HSBC, Geneva, Switzerland. The Hon’ble Tribunal relying on the judgment of the Hon’ble High court in the case of CIT vs. Kabul Chawala (Supra) deleted the addition made by AO. During the Investigation, information was received to the Investigation Wing from France that the assessee mentioning the foreign bank account and doing the transaction. The assessee has not disclosed the foreign assets with the department. The assessee has obtained the order from the Tribunal by suppression of the facts. 3. Brief facts of the case are that a search and seizure operation u/s 132 of the Act was carried out on the assessee group of case on 28-07-2011. Notice u/s 153 A of the Act was issued to the assessee. In the response of the notice the assessee filed the return of income. The AO noted that the assessee derived income from other sources. The AO noted that the assessee has not declared the foreign bank accounts in the return of income. 3 On the basis of the information of the foreign banks account the AO has made the additions. Aggrieved the order of the AO the assessee has filed the appeal before the Ld. CIT(A) however the appeals of the assessee were dismissed. Aggrieved the order of the Ld. CIT(A) the assessee preferred the appeals before the Hon’ble Tribunal. The Tribunal allowed the appeals of the assessee. 4. The Ld. Sr. DR submitted that the order has been obtained by the assessee by suppressed the facts. The assessee has not disclosed the foreign banks accounts. During the investigation e-mails were received regarding foreign banks accounts. The addition also made on the basis of the bank accounts. She further submitted that under Section 254(2) of the Act the apparent mistake of the fact may be rectified. 5. The Ld. Counsel for the assessee submitted that the order was passed after considering the material available on record. He further submitted that revenue has filed the appeal before the Hon’ble High Court. The Hon’ble High Court dismissed the appeals filed by the revenue. But in this case the Revenue wants to review the order of the Tribunal which is not permissible as per law. 4 6. We have given a thoughtful consideration to the contents of the miscellaneous application and the submissions of the Counsel. The appeals of the assessee were decided after considering the submission made by the parties. The appeals of the revenue have been dismissed by the Hon’ble High Court. In our considered view what the Ld. Sr. DR is asking us, to review our own order in the garb of the provisions of section 254(2) of the Act, this Tribunal does not have any power to review its own order, therefore, we do not find any merit in these miscellaneous applications of the revenue and the same are liable to be dismissed. We draw support from the decision of the Hon’ble Supreme Court in the case of Reliance Petro Telecom Limited in Civil Appeal No.7110 and 7112 of 2021 wherein the Hon’ble Supreme Court held as under: “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT 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 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, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 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 ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is 5 unsustainable, which ought to have been set aside by the High Court. 5. 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. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored.” 6 7. Respectfully following the above, miscellaneous applications filed by the revenue are dismissed. 8. Order pronounced in the open court on 11.06.2025. SD/- SD/- (S.RIFAUR RAHMAN) (SUDHIR KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER *NEHA, Sr. PS* Date:- 11.06.2025 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(Appeals) ` 5.DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Sr. No. Particulars Date 1 Date of dictation of Tribunal Order 03.06.2025 2 Date on which the typed draft Tribunal Order is placed before the Dictation Member 03.06.2025 3 Date on which the typed draft Tribunal Order is placed before the other Member 4 Date on which the approved draft Tribunal Order comes to the Sr. P.S. /P.S. 5 Date on which the fair Tribunal Order is placed before the Dictating Member for pronouncement 6 Date on which the signed order comes back to the Sr. P.S. /P.S 7 Date on which the final Tribunal Order is uploaded by the Sr. P.S. /P.S. on official website 8 Date on which the file goes to the Bench Clerk along with Tribunal Order 9 Date of killing off the disposed of files on the judiSIS portal of ITAT by the Bench Clerks 10 Date on which the file goes to the Supervisor (Judicial) 11 Date on which the file goes for Xerox 12 Date on which the file goes for endorsement 13 Date on which the file goes to the superintendent for checking 14 The date on which the file goes to the Assistant Registrar for signature on the tribunal order 15 Date on which the file goes to dispatch section 16 Date of Dispatch of the Order "