M/s. Maa Badi Khermai Marketing Pvt. Ltd , Jabalpur V. D.C.I.T. Central Circle, Jabalpur, Jabalpur

MA 1/JAB/2022

• Counselvise Citation: [2022] 102 COUNSELVISE.COM (IT) 9172 (ITAT-JABALPUR)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2022
• Appeal Filed By: Assessee
• Order Result: DismissedDismissed
• Bench Allotted: DB
• Next Hearing Date: 15-09-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 15-06-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Competent authority; Reason to believe
• Section: 147; 154; 274; 251; 143(2); 254(2); 142(2A); 43; 153C

Judgement Text

1 | P a g e IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR (through web-based video conferencing platform) BEFORE SHRI SANJAY ARORA, HON‟BLE ACCOUNTANT MEMBER & SHRI MANOMOHAN DAS, HON'BLE JUDICIAL MEMBER M.A.Nos. 01 & 02/JAB/2022 (Arising out of I.T.A. Nos. 29 & 30/JAB/2021) (Asst. Years: 2014-15 & 2015-16) Applicant by : Shri Pavan Ved, Advocate Respondent by : Shri P.K. Mishra, CIT-DR Date of hearing : 16/09/2022 Date of pronouncement : 14/12/2022 O R D E R Per Sanjay Arora, AM: This is a set of two Miscellaneous Petitions under section 254(2) of the Income Tax Act, 1961 („the Act‟ hereinafter) by the assessee-applicant in respect of the combined order u/s. 254(1) dated 06/06/2022 disposing Revenue‟s captioned appeals for Assessment Years (AYs) 2014-15 & 2015-16. 2. Before us, Shri Ved, the ld. counsel for the assessee-applicant, would in effect reargue the case, reiterating each of the pleadings as made in the appellate proceedings seeking to impugn the assessment/s as well as the first appellate order/s on several grounds, viz. a) non-application of mind toward which several instances stands cited; b) the manner of recording of approval u/s. 151 by the competent authority; Maa Badi Khermai Marketing Pvt. Ltd., D-24, Dixit Enclave, Bandariya Triraha, Jabalpur [PAN : AAJCS 5326 H] vs. Deputy CIT, Central Circle, Jabalpur. (Applicant) (Respondent) MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 2 | P a g e c) issue of notice/s u/s. 148(1) instead of u/s. 143(2); d) issue of notices u/s. 143(2) on 17/01/2019, i.e., prior to the disposal of the assessee‟s objections to the issue of notice/s u/s. 148(1) by the Assessing Officer (AO) on 20/02/2019; e) the assessment/s being liable to be u/s. 153C instead of u/s. 147; and f) the merits of the addition u/s. 68. Shri Mishra, the ld. CIT-DR, would submit that the contentions as raised by the assessee-applicant in the instant proceedings are not maintainable inasmuch as the same amounts to a review, not permissible u/s. 254(2); each of the pleadings having been answered by the Tribunal per it‟s detailed order. 3. We have heard the parties, and perused the material on record. 3.1 At the outset, we clarify that Shri Ved stating that he relies on his written submissions, it was made clear to him that in that case the Bench would have to call for, similarly, written submissions from the Revenue as well, to which he may wish to respond. That apart, the Bench itself may wish to seek clarification from either side on any part of their submissions. As such, he was requested to argue orally, though in terms of the written submissions placed on file, which would thus serve as a faithful reproduction of what stands argued by him. The hearing was accordingly proceeded with on this basis. 3.2 As it however transpires, the assessee per the instant proceedings only seeks to re-agitate it‟s appeals under reference. It is not the case that any of the arguments advanced or issues raised by it; Shri Ved also representing it in the appellate proceedings before the Tribunal, had not been deliberated upon or adjudicated upon by the Tribunal per it‟s impugned order. It is trite law that the Tribunal does not have the power to review it‟s order, and the scope of sec. 254(2) proceedings is severely limited to rectifying mistakes apparent from record in the order under reference. Reference, for the completeness of this order, be made, inter MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 3 | P a g e alia, to CIT v. Reliance Telecom Ltd. [2022] 440 ITR 1 (SC); CIT v. K.D. Wires (P) Ltd. [2010] 323 ITR 257 (MP); Prakash Chand Mehta v. CIT [1996] 220 ITR 277 (MP); Mahakoshal Ceramics v. CIT [1983] 143 ITR 969 (MP); Dholadhar Investment Pvt. Ltd v. CIT (2014) 362 ITR 111 (Del.); CIT v. Pearl Woollen Mills [2011] 330 ITR 164 (P&H); CIT v. Five Star Marine Exports (P) Ltd. [2010] 322 ITR 218 (Mad.); CIT v. McDowell & Co. Ltd. [2009] 310 ITR 215 (Kar.); and CIT v. Ramesh Electric & Trading Co. [1993] 203 ITR 497 (Bom). The foregoing would suffice to oust the instant petitions at the threshold, i.e., on jurisdiction, and are not maintainable. No wonder, Sh. Ved would; the Revenue seeking, and the Tribunal allowing adjournments with the view to accommodate Sh. Mishra, who argued the captioned appeals, being not the regular DR, urge for an early disposal thereof so that he may be able to move the Hon‟ble jurisdictional High Court under it‟s appellate jurisdiction against the impugned order. Clearly, the instant applications are no more than an abuse of the process of law. 3.3 We may here also state that we find some of the propositions advanced, which were, for the reasons stated in the impugned order, not found acceptable, are against the settled law. For example, the mention of s.147(b) on the proposal form, even as the correct provision stands stated in the reason recorded – on which the approval u/s. 151, being impugned for want of application of mind, stands granted, has been held as of no consequence by the Apex Court even qua the reasons recorded in Kantamani Venkata Narayana & Sons v. Addl. ITO [1967] 63 ITR 638 (SC). Much is made of the wrong mention of the amount of income escaping assessment for one of the years (i.e., AY 2015-16), even as the quantum of income escaping assessment stands held as not an essential ingredient thereof (East Coast Commercial Co. Ltd. v. ITO [1981] 128 ITR 326 (Cal)), as well as the facts of the judgment in Bhimraj Pannalal v. CIT [1961] 41 ITR 221 (SC), with the Tribunal explaining the reasons in the impugned order as to why it did not, in the conspectus of the case, find it to be a non-application of mind, but only an MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 4 | P a g e inadvertent mistake. Could the approval of the reasons recorded, in view of the said legal position, be regarded as infirm or impugned for non-application of mind? That notices u/ss. 143(2) & 148(1), and the said sections, operate in difference fields, apart from being the ratio of the decision in Asst. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 291 ITR 500 (SC) settling the law, is well established, for which reference made to decisions in Inder Narayan Jhalani v. UoI [2002] 254 ITR 663 (MP); Kamal Textiles v. ITO [1991] 189 ITR 339 (MP); CIT v. Abad Fisheries [2002] 258 ITR 641 (Ker); Punjab Tractors v. Jt. CIT [2002] 254 ITR 242 (P&H); Mahanagar Telephone Nigam Ltd. vs. Chairman, CBDT [2000] 246 ITR 173 (Del); N.R. Paper Board v. Dy. CIT [1998] 234 ITR 733, 748-749 (Guj); Pradeep Kumar Har Saran Lal vs. AO [1998] 229 ITR 46 (All); Jorawar Singh Baid v. CIT [1992] 198 ITR 47 (Cal), to cite some. In fact, the issue of notice u/s. 148(1), where there has been no issue of notice u/s. 143(2), stands specifically clarified in most, if not in all, as indeed in Rajesh Jhaveri Stock Brokers (supra). The Apex Court in Hazari Mal Kuthiala v. ITO [1961] 41 ITR 12 (SC) clarified that the exercise of power would be referable to a jurisdiction which confers validity upon it and not a jurisdiction under which it would be nugatory. 3.4 What we intend to bring forth by the foregoing (para 3.3), is that not only the assessee, on being unsuccessful in appeal, seeks a review, even otherwise impermissible in rectification proceedings, it challenges the settled tax jurisprudence on the relevant issues, which is what led us to state of the instant proceedings as being not maintainable and, rather, an abuse of the process of law. The asssessee, in that case, may well have sought rectification u/s. 154 of the orders by the Revenue authorities! The instant applications are accordingly dismissed as not maintainable. 4.1 We may, however, in view of the lengthy arguments made, albeit without prejudice, also allude to the specific pleadings made. It is stated that the impugned order is liable to be recalled as the ratio of the decision in Sahara India (Firm) v. MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 5 | P a g e CIT [2008] 300 ITR 403 (SC) has not been followed. The said decision is in the context of s. 142(2A) of the Act which provides for audit of the assessee‟s accounts having regard to, inter alia, the nature and complexity thereof. Though essentially an administrative act, with a view to protect the interest of the Revenue, the Apex Court read the rule of natural justice into the provision, which it explained was a principle evolved under common law to check arbitrary exercise of power by the State or its functionaries. Unless, therefore, the statutory provisions either expressly or by necessary implication exclude the principle of natural justice, the requirement of giving reasonable opportunity of being heard to the assessee before an order is made, was to be generally read into the provision of the statute, particularly where adverse consequences may follow therefrom. As such, even in the absence of express provision for affording an opportunity of pre- decisional hearing in s.142(2A), the requirement of observing the principles of natural justice was to be read. We understand the same to be in consonance with a number of judicial precedents referred to therein and, in fact, an affirmation of earlier decision in Rajesh Kumar v. Dy. CIT [2006] 287 ITR 91 (SC). The only application of the said decision in the instant case would be that the decision as to the complexity of accounts, etc. cannot be the result of a mechanical exercise, with a view to shift his responsibility of scrutinising the assessee‟s accounts by the AO to the special Auditor. A heavy duty is therefore cast on the approving authority to apply his mind to the facts of the case before granting an approval for the same. Approval u/s. 151 (reproduced at para 4.1/pg.5 of the impugned order), as the section itself mandates, finding a clear mention in each of its three sub-sections, is on the reasons recorded by the AO, that it is a fit case for the issue of such notice. There is no challenge to these reasons in the instant case or even that the Revenue does not have with it the material in support thereof. In fact, the same also finds mention at para 4.2 of the first appellate order, and which is not questioned. What the assessee therefore in effect states is that though there is material, the same was held back by the AO and not sent to the approving authority along with the MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 6 | P a g e proposal form. We find little substance therein. What is there to suggest of it being not furnished by the AO along with the approval form or, even so, called for by the approving authority. That would be clearly presumptuous. All official acts are u/s. 114(e) of the Evidence Act statutorily presumed to be regularly performed. In any case, the burden of proof is on the person who alleges apparent to be not real (CIT v. Daulatram Rawatmal [1973] 87 ITR 349 (SC)). The impugned order clearly records the principle of absence of application of mind as a vitiating factor, though found absent as a fact in the instant case. It is said that the ld. DR has not been able to refute the assessee‟s contention with regard to non-observance of SOP. A bald allegation has no basis in law, and would not operate to shift the onus to the other side. This aspect in fact was not raised either before the AO or before the ld. CIT(A). It is wholly incorrect to say that the Bench has relied on the statement of the ld. CIT-DR, stating the SOP to be substantially complied with, in deciding the matter. An arguing counsel cannot be expected to lead or furnish evidence, even as explained in several decisions, and toward which we may refer to Roshan Di Hatti v. CIT [1977] 107 ITR 938 (SC). The Bench has merely, noting the matter being factual, not supported by material on record, foreclosed the same inasmuch as only legal issues, where facts are not in dispute or admitted, could be raised before the Tribunal for the first time, though also discussed the legal aspect thereof, finding it as not tenable. It was perhaps conscious of this limitation that the argument was advanced qua validity of approval (para 4.3). We have discussed the matter in some detail as we have been charged with having not followed the ratio of the decision in Sahara India (Firm) (supra), binding on us, to the principles laid down in which there is no, and could not be any, quarrel, while holding that there is nothing to exhibit the non-application of mind in granting approval qua the reason/s recorded, which would, where so, surely vitiate the approval. MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 7 | P a g e 4.2 The assessee next relies on the decision in CIT v. Metachem Industries [2000] 245 ITR 160 (MP). The same was not relied upon hearing, so that it cannot be said that the impugned order suffers from the vice of non-consideration of the said decision. The decision being by the Hon'ble jurisdictional High Court, binding on this Tribunal, the same could be pressed even in the rectification proceedings provided it is shown by the party relying thereon the impugned order is contrary to or inconsistent with the said decision. This, however, has not been shown during hearing. The same therefore would not qualify to be, or could not be regarded, as a „reliance‟, with, rather, Shri Mishra submitting that the matter being factual, the AO had, at para 12 (pg.16) of his order, given a definite finding of the impugned credit/s being not genuine, and it is this finding that stands endorsed by the first appellate authority and, further, upheld by the Tribunal, which has not been rebutted by the assessee in any manner. Even as in view of the foregoing, with the scope of the proceedings being limited, does not oblige us to do so, we yet consider it proper to discuss the said decision by the Hon'ble jurisdictional High Court. We cannot however help noting that the assessee‟s said reliance in the instant proceedings is equivalent to the assessee seeking rectification u/s. 154 in respect of the orders by the revenue authorities for the said reason. On merits, we find that, on the contrary, the ld. CIT(A) has relied on, among others, the decision by the Hon'ble jurisdictional High Court in CIT v. Rathi Finlease Ltd. [2008] 2 DTR 31 (MP) and, which reliance has not been contested by the assessee, much less shown as infirm. That apart, the Tribunal has, for the law in the matter, relied upon several decisions by the Apex Court, including by its larger benches, settling the law in the matter – to which we may add another in CIT (Pr.) v. NRA Iron & Steel Ltd. [2019] 418 ITR 449 (SC), relied upon by the AO, at pg.9 of the impugned order. Unless, therefore, the decision in Metachem Industries (supra) is itself contrary to or in disagreement with the cited decisions, rendering citing it as of little consequence, the reliance thereon would be to no effect. That is, either way, the reliance fails. In fact, in our view, the decision in Metachem Industries MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 8 | P a g e (supra) is in ratio in conformity with the law as explained by the Apex Court, as indeed others by the Hon‟ble High Court, some of which stand cited and relied upon, representing the clear law in the matter. As stated therein, the burden is on the assessee to establish the credit, and only once this is done that the assessee can in law be regarded as having discharged the burden cast on it under law, and the onus shifts to the Revenue. Establishing a credit, which is to be qua its nature and source, it is trite law, is to be on the parameters of identity & capacity of the creditor and the genuineness of the credit. As explained in CIT v. P. Mohanakala [2007] 291 ITR 278 (SC), the expression “the assessee offers no explanation” means the assessee offers no proper, reasonable and acceptable explanation as regards the sums found credited in the books maintained by the assessee. Further, the opinion of the AO for not accepting the explanation offered by the assessee as not satisfactory is required to be based on proper appreciation of material and other attending facts/circumstances available on the record, i.e., formed objectively with reference to the material on record. Once this is so, it becomes irrelevant whether the creditor is a partner in the assessee-firm or not, and the impugned credit could not be brought to tax in it‟s hands. The decision is to be read in light of the factual findings by the first and the second appellate authorities, both of which found that the business of the assessee-firm in fact belonged to one, Sh. S.K. Gupta (pg. 162). How could the impugned credits in the accounts of the business be, in view thereof, regarded as the assessee‟s income? „Reliance‟ on the said decision would thus be of little assistance to the assessee. 4.3 The applicant next re-agitates the non-observance of Standard Operating Procedure (SOP), also discussed at para 4.1, with reference to a Board Circular dated 22/8/2022, copy of which is placed on file. The same, besides being thus not a part of record with reference to which only the impugned order could be considered as „mistaken‟, is with reference to the reassessment procedure put in place per s.148A, titled „Conducting enquiry, providing opportunity before issue of notice u/s. 148‟, by Finance Act, 2021, w.e.f. 01/4/2021. The Instruction, which is MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 9 | P a g e confidential and for Department circulation only, is regarding the uploading of data on functionalities/portal of the Income Tax Department. How we wonder is the same relevant? Such instructions would in any case, to be relevant, require the field officers to follow the procedure delineated u/s. 148A, which is effective 01/4/2021. How is the same, not even adverted to during hearing (so that it could not be a part of record u/r. 18(6) of the Income Tax (Appellate Tribunal) Rules, 1963, and even as the scope of the instant proceedings is limited, relevant? In fact, even on the earlier occasion, the Tribunal was constrained for want of materials on record as well as absence of the adjudication by the Revenue authorities. The jurisdictional fact for assumption of jurisdiction u/s. 147 is the „reason to believe‟ – not under challenge, the contours of which stands explained and delineated by the Apex Court time and again, and again recently in Pr. DIT (Inv.) v. Laljibhai Kanjibhai Mandalia [2022] 446 ITR 18 (SC), with reference to s. 132(1) of the Act, which also bears the same condition. In short, it is the subjective satisfaction of the authority concerned, being the assessing authority for an assessment u/s. 147, based on objective material. The same may be concised in the following observations by it in Rajesh Jhaveri Stock Brokers (P.) Ltd. (supra): “The expression “reason to believe” in section 147 would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, he can be said to have reason to believe that income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. What is required is “reason to believe” but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed the requisite belief. Whether material would conclusively prove escapement of income is not the concern at that stage. This is so because the formation of the belief is within the realm of the subjective satisfaction of the Assessing Officer. Once this condition precedent is fulfilled, the AO is free to initiate proceedings u/s. 147, which he has in the instant case. Further, it is only on the assessee filing the return in response to the notice u/s. 148(1), is the AO obliged to share the information and materials in his possession, as indeed the reasons recorded, MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 10 | P a g e confronting the assessee therewith. Reference be made to Nusli N. Wadia v. ACIT [2022] 447 ITR 376 (SC), and GKN Driveshafts (I) Ltd. v. ITO [2003] 259 ITR 19 (SC), which stands in fact followed in the former. Further, it is the satisfaction of the AO alone that is relevant, with there being decisions galore on reassessment being struck down on the basis of borrowed satisfaction. The contention with reference to SOP, which is essentially in the nature of an advisory with the view to protect the interest of the Revenue, having not been adopted, for which no basis was shown, would be of no assistance, and which is the crux of the decision per the impugned order. Further, it needs to be noted that this, i.e., subjective satisfaction based on objective materials, is the same test that stands discerned by the Tribunal with reference to the decision in Chhuggamal Rajpal v. S.P. Chaliha [1971] 79 ITR 603 (SC) qua an approval u/s. 151, as indeed in Arjun Singh & Anr. v. ADIT [2000] 246 ITR 363 (MP) (refer para 4.4). Could, rather, one wonders, the same be any different in view of the legal position that the approval by the senior authority u/s. 151 is to be w.r.t. the reasons recorded u/s. 148(2). There is per the impugned order no disputing the principle that no application of mind or a mere mechanical approval would not valid in law, and the ensuing notice u/s. 148(1) as bad in law. 4.4 The assessee has next placed the decision in National Textile Corporation Ltd. v. CIT [201(1)] 338 ITR 371 (MP), not referred to during hearing (and accordingly, not responded to by either side), on file. This, despite the fact of our making it clear to Shri Ved that the written submissions (including decisions) referred to during hearing shall only be considered part of the pleadings (as is also import of rule 18(6) of IT(AT) Rules, 1963). This is extremely unfortunate as it is derogative of fair hearing and prejudicial to the other side. We may yet, being by the Hon'ble jurisdictional High Court, consider the same. It pronounces the binding nature of the decision of the Hon'ble High Court on the sub-ordinate Courts and Tribunals. We are unable to comprehend as to how the same is applicable in the MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 11 | P a g e facts of the case, none of which stands explained. Further, the impugned order itself is, in the main, based on the decisions by the Apex Court, as well as by the Hon'ble jurisdictional High Court. It is, however, at the same time, made clear that it is only the ratio decidendi or the principle of law laid down that is binding (refer: Mavilayi Service Cooperative Bank Ltd. v. CIT [2021] 431 ITR 01 (SC)). This also explains the varying decisions under different facts and circumstances. In any case, it is not made clear as to which decision/s by the Hon'ble jurisdictional High Court is alleged as having not been followed, toward which we have perused the impugned order carefully, to find none. The appellate jurisdiction of the Hon'ble High Court is exercisable u/s. 260A, where it admits a substantial question of law (refer: Maharaja Amrinder Singh v. CIT [2017] 397 ITR 752 (SC); Santosh Hazari vs. Purushottam Tiwari (Decd.) [2001] 251 ITR 84 (SC)). For each of the binding decision referred, it is the ratio thereof that has been scrupulously sought to be followed. 4.5 Finally, the assessee has also placed on file the decisions in Chhuggamal Rajpal (supra) and UCO Bank v. CIT [1999] 237 ITR 889 (SC), as well as the decisions in Coal India v. Ananta Saha (in CA No. 2958/2011, dated 06/4/2011) and Third Member decision of ITAT, Jaipur in Deepak Dalela v. ITO [2014] 43 taxmann.com 96, on file. There was no whisper, much less reference, to these decisions during hearing. This is, as also afore-noted, very unfortunate; the documents, as per procedure, being filed directly with the Registry before the date of hearing. In fact, these documents have been, in each case, filed 1-2 days prior to the date of hearing in gross contravention of the Tribunal Rules, which also clearly provide of the documents specifically referred to as forming part of the Tribunal‟s record. We are in fact at loss to understand the purport of the latter two decisions. As regards the former two, the decision in Chhugamal Rajpal (supra) stands referred to and discussed per the impugned order, with its ratio, as discerned by the Hon'ble High Court in Phool Chand Bajrang Lal v. ITO [1977] 110 ITR 834 (All), MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 12 | P a g e followed, also explaining the rationale for the same (paras 4.1 & 4.4). In fact, there are host of decisions by the Hon'ble Courts to the same effect, even as we may readily cite one, i.e., Rakesh Gupta v. CIT [2018] 405 ITR 213, 238 (P&H). Reference, with profit, may also be made to McDermott International Inc. v. Addl. CIT [2003] 259 ITR 138, 141 (Utt.). The decision in UCO Bank (supra) is with regard to the binding nature of the beneficial Circulars by the Board and, as we presume, in the context of arguments qua SOP, which finds deliberation in the impugned order (para 4.3), as also referred to and discussed herein w.r.t. the assessee‟s argument (para 4.3). We have already explained a clear lack of material on record and no rebuttal, i.e., with reference to the material on record, of substantial compliance of the SOP, which is to protect and secure the interest of the Revenue, even as the approval is to be in the ultimate analysis tested in the anvil of due application of mind, i.e., a subjective satisfaction on the basis of objective material. Only pure questions of law could be raised before the Tribunal for the first time. It was perhaps conscious of this limitation that Sh. Ved would constantly remind us during hearing of the appeals that the arguments advanced, including qua SOP, are with reference to the approval u/s. 151, impugned for lack of due application of mind, a matter of fact, on facts (para 4.1 of the impugned order). The approval, again, as explained, is to be premised on the same basic test, and which is only understandable. Further, how could the Circular on SOP, we wonder, qualify as a beneficial circular for the assessee, who rather would stand to benefit where the same is not followed. That apart, there is a serious limitation on the power of the Board to issue Circular which can only be in furtherance of the provisions of the Act, and cannot usurp the power of assessment of the assessing authority, to some by the Apex Court we may refer as: viz. CIT v. Greenworld Corporation [2009] 314 ITR 81 (SC); J.K. Synthetics Ltd. v. CIT [1972] 83 ITR 335 (SC), rendered in different fact settings. Reference may also be made to decisions in Pahwa Chemicals (P.) Ltd. v. CCE [2005] 274 ITR 87 (SC), referred to in the impugned order (at para 4.3), and Kerala Financial Corporation v. CIT MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 13 | P a g e [1994] 210 ITR 129 (SC), explaining the constraints on the power u/s. 119. In fact, in each of the decisions cited at para 3.3 the Hon‟ble Courts have referred to the condition precedent for a valid reopening of an assessment. The foregoing does not seek to readjudicate the issue, but demonstrate that: (a) the basic contours of law are well defined and settled, and (b) the applicant is, even without observing due process, only seeking to breach the limitations of the instant proceedings, with the relevant aspects having been duly considered with reference to the binding judicial precedents in light of the facts of the case. We, once again, depreciate the reliance on materials and decisions de hors the arguments raised in the course of hearing. 4.6 The assessee, in view of the foregoing, has no case even on the merits for the amendment of the impugned order u/s. 254(2) of the Act. 5. We may before parting of our order and at the risk of impugned order being also castigated as without application of mind, advert to certain typographical errors and omissions which came to our notice upon reading it for the purpose of the disposal of the instant petitions, and are being listed for correction, so that the said order be read as corrected thus: (i) Para 2 (pg.2): The word „remission‟ in the sentence beginning with „Inasmuch as an acceptance....‟ be read as „remittance‟; (ii) Para 3.2 (pg.4): A comma (,) be read after the symbol „(b)‟ in line 8; (iii) Para 4.1 (pg.8): The words „to be‟ following the words „so would be‟ in the sentence beginning with the words “Regarding it.....‟ be omitted; (iv) Para 4.2 (pg.10): a) The word „reason‟ in the sentence beginning with the words „In fact, as again stated.....‟, be read as „reasons‟; b) Likewise, in the sentence beginning with the words “It is, then, said...‟; c) The word „wonder‟ in the following sentence be read as „wonders‟; MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 14 | P a g e d) The symbol „i.e.,‟ before the words „Rs.2122 lacs‟ in the sentence beginning with the words „Further, the entire capital........‟, be read as „or‟; (v) Para 4.2 (pg.11): The word „sue‟ following the word „necessary to....‟ in the reproduction from pg. 602 of the decision reported at [1958] 34 ITR 601 (SC) be read as „use‟; (vi) Para 4.3 (pg.15): The word „an‟ be read after the words „driven fast is prone to‟ in the sentence beginning with the words „The argument is internally inconsistent....‟; (vii) Para 6 (pg.21): The word „after‟ preceding the words „the date of passing‟ in line 8 of the para, be omitted; (viii) Para 7.1 (pg.21): The words „(on or after)‟ in line 3 be read as „on (or after)‟; (ix) Para 7.2 (pg.23): The words „i.e., after the order dated 20/2/2019‟ be read after the words „at this stage‟, and „comma (,) preceding the word „at‟ be omitted; (x) Para 8.1 (pg.23): The word „to‟ be read between the words „pertaining‟ and „assessee‟ in the second sentence of the para; (xi) Para 9: a) The word „in‟ preceding the words „the realm of explanations to be‟ in the sentence beginning with the words “There is, in fact, nothing...‟ be read as „beyond‟ (pg. 29). b) The word „affirmeded‟ be read as in the citation Seth Kalekhan Mohammed Hanif vs. CIT’ be read as „affirmed‟ (pg. 32). 6. In the result, the assessee‟s miscellaneous applications are dismissed. Order pronounced in open Court on December 14, 2022 Sd/- S d/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Dated: 14/12/2022 vr/- MA Nos. 1 & 2/JAB/2022 (AYs: 2014-15 & 2015-16) Maa Badi Khermai Marketing Ltd. v. Dy. CIT 15 | P a g e Copy to: 1. The Applicant: Maa Badi Khermai Marketing Pvt. Ltd., D-24, Dixit Enclave, Bandariya Triraha, Jabalpur. 2. The Respondent: Deputy CIT, Central Circle, Jabalpur 3. The Principal CI T, Central, Bhopal. 4. The CI T( A)-3, Bh opal (MP) 5. The CI T DR , I TAT, Jabalpur 6. Guard File. By order (VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Jabalpur.