Gunwant Kaur, Bathinda V. INCOME TAX OFFIER WARD-1(1), BATHINDA

MA 1/ASR/2023

AI Insights

The case involves a Miscellaneous Application filed by Gunwant Kaur against an earlier order of the ITAT Amritsar Bench concerning the assessment year 2012-13. The application was filed under section 254(2) of the Income Tax Act, seeking to recall the ITAT's earlier decision, which the appellant claimed was passed ex parte. The Tribunal noted that the application was filed beyond the permissible time limit but condoned the delay upon the appellant's request. However, upon reviewing the merits, the Tribunal found no mistake apparent from the record in the original order and dismissed the MA, citing the Supreme Court's decision in Reliance Telecom Ltd. as a guiding precedent.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115167 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-07-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-06-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2023
• Other Referred Cases: CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER ANDSH. ANIKESH BANERJEE, JUDICIAL MEMBER M.A. No. 1/Asr/2023 (In I.T.A.No. 414/Asr/2015) A.Y. 2012-13 Gunwant Kaur, C/o P.P. Maheshwary Adv. 7, Mini Market, Opp Udang Cinema, Amrik Singh Road, Bathinda. [PAN: AAZPK0876B] (Appellant) Vs. Commissioner of Income Tax, Bathinda. (Respondent) Appellant by Sh. J. K. Gupta, Adv. Respondent by Sh. Pradeep Kumar,Sr. DR Date of Hearing 12.06.2023 Date of Pronouncement 18.07.2023 ORDER Per Anikesh Banerjee, JM: The instant Miscellaneous Application (in brevity the MA)of the assessee was filed against the order of ITAT Amritsar Bench bearing ITA No.414/Asr/2015,order pronounced on 11.05.2022 for A.Y. 2012-13. 2. The ld. AR vehemently argued and placed that the said order of the ITAT Amritsar Bench was passed ex prate and liable to be recalled for further hearing. M.A. No. 1/Asr/2023 (In I.T.A.No. 414/Asr/2015) A.Y. 2012-13 2 The issue was pointed out related to filing of application u/s 254(2) is time barred. The date of pronouncement of order was 11.05.2022 and the due date for filing the MA u/s 254(2) was 30.11.2022. The order was received by assessee dated 01/06/2022. But the MA was filed on 07.02.2023 u/s 254(2), the MA should be filed within six months from the end of the month in which the order was passed. The relevant part of section 254(2) is extracted as follows: - “254 (2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer :” The assessee has not filed any application for condonation of delay related to MA. But the ld AR prayed for condonation of delay. The ld. DR had not made any objection. Accordingly, the delay for filing MA is condoned. 3. The ld. DR vehemently argued and fully relied on the order of ITAT Amritsar Bench. The ld. DR placed that the said order is speaking order, so, no question of recalling the same. 4. We heard the rival submission and relied on the documents available in the record. The assessee was unable to point out any mistake apparent from the record M.A. No. 1/Asr/2023 (In I.T.A.No. 414/Asr/2015) A.Y. 2012-13 3 of the order of ITAT-Amritsar Bench. The issue of recalling is well delt by the Hon’ble Apex Cort. We respectfully relied on the order of Hon’ble Apex Court, CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC). The observation is extracted as below: - “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9-2013, 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 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2013 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 6-9-2013 is 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 M.A. No. 1/Asr/2023 (In I.T.A.No. 414/Asr/2015) A.Y. 2012-13 4 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.” The recalling of observation of a speaking order of ITAT is beyond the jurisdiction of Bench. So, the MA application of the assessee is dismissed. 5. In the result, the Miscellaneous Application of the assessee bearing M.A. No. 1/Asr/2023 is dismissed. Order pronounced in the open court on 18.07.2023 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order