Santosh Kumar Mishra, Lucknow V. Asstt. Commissioner of Income Tax, Circle-1, Bareily

MA 06/LKW/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5628 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 31-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NOS.6 & 7/LKW/2019 [IN ITA NO S . 707 & 708/LKW/2017 ASSESSMENT YEAR: 2014 - 15 SANTOSH KUMAR MISHRA M /S UNITED REAL ESTATE 9/6, SAHAR ESTATE, JANKIPURA LUCKNOW V. ACIT CIRCLE 1 BAREILLY T AN /PAN : AJTPM7823K (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI SANJAY SAXENA, FCA RESPONDENT BY: SHRI C. K. SINGH, D.R. DATE OF HEARING: 03 0 5 2019 DATE OF PRONO UNCEMENT: 16 0 5 2019 O R D E R PER T.S.KAPOOR , A .M : THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE WITH A REQUEST TO RECALL THE ORDER OF THE TRIBUNAL DATED 7/9/2018 IN ITA NOS.707 & 708/LKW/2017. 2 . THE BRIEF FACTS ARE THAT THE ASSESSEE PREFERRED APPEALS IN ITA NOS.707 & 708/LKW/2017 BEFORE THE TRIBUNAL AND THE TRIBUNA L , CONSIDERING THE PRAYER OF THE LD. A.R. OF THE ASSESSEE, RESTORED THE MATTER TO THE FILE OF THE LD. CIT(A) , VIDE ITS ORDER DATED 7/9/2018. THE RELEVANT PART OF THE ORDER DATED 7/9/2018 IS REPRODUCED, AS BELOW: - 2. AT THE TIME OF HEARING LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) IN BOTH THESE CASES HAS DISMISSED THE APPEALS ON THE GROUND OF NON - PROSECUTION AND LD. A.R. OF THE ASSESSEE PRAYED M.A. NOS.6 & 7/LKW/2019 PAGE 2 OF 8 FOR FINAL OPPORTUN ITY TO PRESENT THEIR CASE ON MERITS BEFORE THE LD. CIT(A). 3. THE LD. D.R. CONCEDED TO THE REQUEST MADE BY THE LD. A.R. OF THE ASSESSEE. 4. WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIVAL CONTENTIONS AND IN THE ORDERS OF THE LD. CIT(A) FOR BOTH THE APP EALS LD. CIT(A) HAS DISMISSED THE APPEALS ON THE GROUND OF NON - PROSECUTION BY THE ASSESSEE. FURTHERMORE HE HAS OBSERVED THAT THOUGH HE HAS GONE THROUGH THE GROUNDS OF APPEALS AND ASSESSMENT ORDERS HE IS NOT FOUND ANY WORTHWHILE FACTS THEREIN WHICH MAY LEA D HIM TO UNDERSTAND THE GRIEVANCES ARISING IN THE GROUNDS OF APPEALS. THEREFORE, HE HAS CONFIRMED THE ORDERS OF THE ASSESSING OFFICER. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDERS OF THE LD. CIT(A) FOR BOTH THESE CASES I.E. ITA NO.707 & 708/LKW/20 17 AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEALS OF THE ASSESSEE IN ITA NO.707 & 708/LKW/2017 ARE ALLOWED FOR STATISTICAL PURPOSES. 3 . NOW THE PRAYE R OF THE ASSESSEE IS THAT THE MATTER IN THE AFORESAID APPEALS MAY BE RESTORED BACK TO THE FILE OF THE A.O INSTEAD OF THE LD. CIT(A). THE UNDISPUTED FACT IS THAT ON THE REQUEST MADE BY THE ASSESSEE AT BAR, AS APPEARING IN PARA 2 OF THE IMPUGNED ORDER, FOR AFFORDING FINAL OPPORTUNITY TO PRESENT THEIR CASE ON MERITS BEFORE THE LD. CIT(A) , THE APPEALS IN BOTH THE CASES WERE RESTORED BACK TO THE FILE OF THE LD. CIT(A) AND THE APPEALS IN BOTH THE CASES WERE HEARD ON 4/9/2018 AND PRONOUNCED IN THE OPEN COURT ON 7 /9/2018. NOW THE ASSESSEE DISPUTES THE FINDINGS OF THE TRIBUNAL AND IS SEEKING REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT . M.A. NOS.6 & 7/LKW/2019 PAGE 3 OF 8 4 . THE SCOPE OF PROVISIONS OF SECTION 254(2) IS VERY LIMITED AND ONLY THOSE ERRORS W HICH ARE APPARENT OR ARITHMETICAL CAN ONLY BE RECTIFIED. THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT HAS BEEN REPEATEDLY EXAMINED BY THE HON'BLE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT THE TRIBUNAL CAN RECTIFY ONLY THOSE MISTAKES WHICH ARE ARITHMETICAL OR CLERICAL OR APPARENT IN ITS ORDER. THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER. IT WAS ALSO HELD THAT IF THE TRIBUNAL COMMITS AN ERROR OF JUDGEMENT, THAT ERROR CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254 (2) OF THE ACT , AS THE TRIBUNAL IS NOT EMPOWERED BY THE STATUTE TO REVIEW ITS OWN ORDER. 5 . IN THE CASE OF CIT VS. VARDHMAN SPINNING, 226 ITR 296 (P&H), THEIR LORDSHIPS OF THE PUNJAB AND HARYANA HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE APPELLATE T RIBUNAL IS CREATION OF STATUTES AND IT CAN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. THE ONLY POWER CONFERRED ON THE TRIBUNAL U/S 254(2) OF THE I.T. ACT, 1961 IS TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED BY THE AUTHORITIES UNDER THE ACT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOSED INHERENT RIGHTS. U/S 254(1) OF THE ACT, THE APPELLATE TRIBUNAL, AFTER HEARING THE CONTESTING PARTIES, CAN PASS SUCH ORDER AS IT DEEMS FIT. SEC. 25 4(2) OF THE ACT SPECIFICALLY EMPOWERS THE APPELLATE TRIBUNAL AT ANY TIME WITHIN FOUR YEARS OF THE DATE OF AN ORDER TO AMEND ANY ORDER PASSED BY IT U/S 254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD EITHER SUO MOTO OR ON AN APPLIC ATION MADE. WHAT CAN BE RECTIFIED UNDER THIS SECTION IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE, THEN IT CANNOT BE SAID TO BE AN ERROR APP ARENT ON THE FACE OF THE RECORD. M.A. NOS.6 & 7/LKW/2019 PAGE 4 OF 8 6 . IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD INDUSTRIES (P) LTD., 226 ITR 34 (CAL), THEIR LORDSHIPS OF THE CALCUTTA HIGH COURT HAVE EXPRESSED SIMILAR OBSERVATIONS AFTER HOLDING THAT UNDER SECTION 254(2) OF THE INCOME - TA X ACT, AN ORDER, WHICH HAS BEEN PASSED BY THE TRIBUNAL REACHES FINALITY THE MOMENT THE SAME IS PASSED; CANNOT BE TOUCHED THEREAFTER. BY SECTION 254(2) OF THE ACT, THE TRIBUNAL, HOWEVER, HAS BEEN AUTHORIZED TO RECTIFY MISTAKES IN ITS ORDERS, WHICH ARE APPA RENT ON THE FACE OF THE RECORDS. THE EXPRESSION MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EITHER CLERICAL OR GRAMMATICAL OR ARITHMETICAL OR OF LIKE NATURE, WHICH CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO RE - ARGUE THE MATTER OR TO RE - APPRA ISE THE FACT AS APPEARING FROM THE RECORDS. IN ANOTHER CASE CIT VS. GOLAL CHAND AGARWAL, 202 ITR 14 (CAL), THEIR LORDSHIPS OF CALCUTTA HIGH COURT HAVE ALSO HELD THAT SECTION 254(2) OF THE INCOME - TAX ACT, 1961 EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PA SSED U/S 254(1) TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. IF IN ITS ORDER THERE IS NO MISTAKE WHICH IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, THE EXERCISE OF THE JURISDICTION BY THE TRIBUNAL U/S 254(2) W ILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIGHT, AT THE WORST, LEAD TO PERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254( 2) BUT A REFERENCE PROCEEDINGS U/S 256. THE NORMAL RULE IS THAT THE REMEDY BY WAY OF REVIEW IS A CREATURE OF THE STATUTE AND UNLESS CLOTHED WITH SUCH POWER BY THE STATUTE, NO AUTHORITY CAN EXERCISE THE POWER. 7 . THE HONBLE HIGH COURT OF ALLAHABAD IN THE C ASE OF CIT VS. ITAT, 143 CTR 446 (ALLD) HAS HELD THAT SUB - SECTION (1) OF SECTION 254 CONFERS AMPLE POWERS ON THE TRIBUNAL TO PASS SUCH ORDERS IN ANY APPEAL FILED BEFORE IT AS IT THINKS FIT. SUB - SECTION (2) OF SECTION 254 POSTULATES M.A. NOS.6 & 7/LKW/2019 PAGE 5 OF 8 THAT THE TRIBUNAL MA Y AMEND ANY ORDER PASSED BY IT UNDER SUB - SEC. (1) OF SECTION 254 WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. THE POWER OF THE TRIBUNAL CONFERRED BY SUB - SECTION (2) OF SECTION 254 FOR RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD CANN OT BE EXERCISED BY THE TRIBUNAL TO RECALL ANY ORDER PASSED BY IT UNDER SECTION 254(2). FURTHER, REVIEWING AND RECALLING AN ORDER IS ONE THING AND RECTIFYING A MISTAKE IN THE ORDER WHICH IS APPARENT FROM THE RECORD IS QUITE ANOTHER. IN THE ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW BY TRIBUNAL, THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED OR REVIEWED UNDER SECTION 254(2) OF THE ACT. THE PROVISIONS OF SECTION 254 WERE ALSO EXAMINED BY THE HONBLE HIGH COURT OF M.P. IN THE CASE OF PRAKASH CHAND MEHTA VS. CIT, 220 ITR 277 (M.P) IN WHICH THEIR LORDSHIPS HAVE HELD THAT SCOPE OF SECTION 254(2) OF THE INCOME - TAX ACT IS VERY LIMITED AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. 8 . THEIR LORDSHIPS OF THE APEX COURT IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHERS, 82 ITR 50 (SC) HAVE HELD THAT 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 BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR LORDSHIPS HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING HIM IN THE WITNESS BOX, THE AUTHORITIES SHOULD NOT ACT UPON T HAT STATEMENT WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY TO CROSS - EXAMINE THE WITNESS, BUT THAT IS A MATTER NOT FOR RECTIFICATION BUT IT IS A MATTER RELATING TO THE MERITS OF THE CASE AS TO WHETHER THE TRIBUNAL HAS GONE WRONG IN NOT CONSIDERING THE AFFI DAVIT OF A PARTICULAR PERSON AND HAS ACTED UPON THE STATEMENT OF THE SAME PERSON WHICH WAS RECORDED BY THE ITO WITHOUT BEING PERMITTED TO CROSS EXAMINE BY THE ASSESSEE. THIS IS NOT A MATTER IN WHICH THE M.A. NOS.6 & 7/LKW/2019 PAGE 6 OF 8 APPARENT ERROR IS INVOLVED BUT IT IS A MATTER MORE O F MERIT AND CANNOT BE RECTIFIED WITHIN THE SCOPE OF RECTIFICATION. THE POWERS OF THE TRIBUNAL WHILE MAKING A RECTIFICATION WERE AGAIN EXAMINED BY THE APEX COURT IN THE CASE OF CIT VS. HERO CYCLES PVT. LTD., 228 ITR 463 (SC) IN WHICH THEIR LORDSHIPS HAVE HELD THAT RECTIFICATION CAN ONLY BE MADE WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM RECORD. RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. MOREOVER, A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS MISTAKE APPARENT FROM RECORD. IN THE CASE OF ITO VS. ITAT, 229 ITR 651 (PAT.), THEIR LORDSHIPS OF PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATION AFTER HOLDING THAT SECTION 254(2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) WITH A VIEW TO RECTIFYING A MISTAKE FROM RECORD. HOWEVER, SECTION 254(2) DOES NOT AUTHORIZE THE TRIBUNAL TO REVIEW ITS ORDER OR TO SIT IN APPEAL OVER ITS EARLIER ORDER. IF IT IS DONE, IT WOULD AMOUNT TO AN AMENDMENT OF AN EARLIER ORDER WITH A VIEW TO RECTIFY A MISTAKE APPARENT FROM RECORD, BUT IT WOULD BE AN ORDER PASSED ON REAPPRAISAL OF THE MATERIAL FACTS AND CIRCUMSTANCES AND ON A FRESH APPLICATION OF THE LEGAL POSITION WHICH IS NOT PE RMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. 9 . IN THE CASE OF MS. DEEKSHA SURI VS. ITAT, 232 ITR 395(DELHI), THEIR LORDSHIPS OF DELHI HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE INCOME - TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT BEEN VESTED WITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGEMENTS OR ORDERS. THE GROUNDS ON WHICH THE COURTS MAY OPEN OR VACATE THEIR JUDGEMENTS ARE GENERALLY MATTERS WHICH R ENDER THE JUDGEMENT VOID OR WHICH ARE SPECIFIED IN THE STATUTES AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF SECTION 254(2) OF THE INCOME - TAX ACT, 1961 IS CLEAR. THE M.A. NOS.6 & 7/LKW/2019 PAGE 7 OF 8 FOUNDATION FOR THE EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPA RENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. 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 BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. 10 . SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY THE GUWAHATI HIGH COURT IN THE CASE OF CIT VS. PRAHLAD RAI TODI, 251 ITR 833 (GAU) BY HOLDI NG THAT A BARE LOOK AT SECTION 254(2) WILL SHOW THAT THIS SECTION GIVES THE POWER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND NOT TO AMEND ANY ORDER PASSED BY IT AND TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSING O FFICER OR THE ASSESSEE. SO, WHEN WE SPEAK OF AMENDMENT OR RECTIFYING THE MISTAKE THE EARLIER ORDER CAN NEVER BE RECALLED BY THE TRIBUNAL. THE EARLIER ORDER MUST HOLD THE FIELD AND THE MISTAKE CAN BE RECTIFIED OR AMENDED CAN BE MADE TO THE ORDER. THE TRI BUNAL CANNOT, IN LAW AND FACTS, RECALL AND DESTROY ITS FINAL ORDER AS A WHOLE WITH A VIEW TO RECTIFY THE SAME ORDER UNDER SECTION 254(2) OF THE ACT. THE ACTION OF THE TRIBUNAL ACTUALLY AMOUNTS TO REVIEW OF ITS EARLIER ORDER AND THAT POWER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. 11 . WE, THEREFORE, FIND NO MERIT IN THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE, AS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL IS POINTED OUT. THE LD. COUNSEL FOR THE ASSESSEE HAS TRIED TO DISPUTE THE FINDINGS OF THE TRIBUN AL AND IS SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT AND WE, ACCORDINGLY, REJECT THE MISCELLANEOUS APPLICATION. M.A. NOS.6 & 7/LKW/2019 PAGE 8 OF 8 12 . IN THE RESULT, MISCELLANEOUS APPLICATION S OF THE ASSESSEE STAND DISMISSED. ORDER P RONOUNCED IN THE OPEN COURT ON 16 / 0 5 / 201 9 . SD/ - SD/ - [ A. D. JAIN ] [ T.S. KAPOOR ] VICE PRESIDENT ACCOUNTANT MEMBER DATED: 16 /0 5 / 201 9 JJ: COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR