SHRI ARVIND KUMAR, HOSHIARPUR V. INCOME TAX OFFICER WARD-1, HOSHIARPUR

MA 12/ASR/2022

AI Insights

The case involves a Miscellaneous Application filed by Shri Arvind Kumar, a property dealer, against the ITO Ward-I, Hoshiarpur, concerning an order from the Income Tax Appellate Tribunal (ITAT) Amritsar Bench. The application arose from ITA No. 49/Asr/2018, which pertained to the Assessment Year 2014-15. The assessee's counsel requested an adjournment for the hearing due to a scheduling conflict with another case in Mumbai. The Tribunal, however, dismissed the M.A. as it was filed post-hearing and did not substantiate any apparent mistakes in the original order. The Tribunal emphasized that any perceived errors in the merits of the case should be addressed through an appeal to the High Court, not through a recall of the ITAT's order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 114775 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-06-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 29-08-2022
• Other Referred Cases: CIT Vs. Reliance Telecom Ltd., 133 Taxmann 41
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 144; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER Misc. Application No. 12/Asr/2022 (In I.T.A. No. 49/Asr/2018) Assessment Year: 2014-15 Shri Arvind Kumar, Property DealerAgency Jalandhar Road, Hoshiarpur Vs. The ITO Ward-I, Hoshiarpur PAN: AFWPS0149H APPELLANT RESPONDENT Assessee by : None Revenue by : Shri Pardeep Kumar, Sr.DR Date of Hearing : 12/06/2023 Date of Pronouncement : 16/06/2023 ORDER Per Dr. M. L. Meena, AM: The present Misc. Application filed by the Assessee arising out of ITA No. 49/Asr/2018 in respect of order passed by the Tribunal order dt. 21/02/2022 for the Assessment Year 2014-15. 2. During the course of hearing none appeared on behalf of the assessee nor any adjournment application filed on behalf of the assessee. It was brought to the notice of the Bench by the Registry after the case was heard that email was sent by the Ld. AR on whatsapp of the Bench Clerk at 12.45 PM which read as under: Sub: Request for adjournment in the case of Shri Arvind Kumar Hosiarpur Vs. ITO W-1, Hoshiarpur MA No. 12/2022 arising our of ITA No. 49/ASR/2018 Respectfully showeth: That I regret my inability to make appearance in the above matter, fixed hearing before the Hon’ble Bench on 12.06.2023, since as per prior fixation have to argue a case of settlement before the IBS-V, Mumbai on 12.06.2023, which is also fixed for virtual hearing. Misc. Application No. 12/Asr/2022 (In I.T.A. No. 49/Asr/2018) Assessment Year: 2014-15 2 I shall therefore, feel much obliged if the above matter is adjourned and allowed to be taken up sometime in next month. Inconvenience caused is deeply regretted. Sd/ (J.S. Bhasin) Advocate for assessee 3. There is a procedure as per the ITAT Rules to file adjournment application one week before the date of hearing however Bench has given liberty to the Counsel considering coming from long distance to file adjournment application atleast before three days of the date of hearing of the case. Although the case was fixed for hearing on three separate dates i.e 10/02/2023,05/06/2023 and on 12/06/2023. In the present case the Ld. Counsel for the assessee filed the adjournment application after the case was already heard. Therefore filing of this adjournment application is held to be as no application in the eyes of law. 4. Ld. Counsel for the Assessee has filed a detailed MA in the form of written submission comprising 10 pages aligating therein that the Tribunal order suffers from certain errors and omission apparent from record which have had adverse impact on the outcome of the order. The counsel has extracted part of the assessment order and Tribunal order on the matter of issue of notice, proceeding under section 144 and findings of the Tribunal. 5. Per contra, the Ld. DR submitted that the Tribunal has passed a detailed order addressing grounds of appeal on merits of the case. He contended that as per Section 254(2) of the Act, Tribunal has the limited power to correct/rectify the mistake apparent from the record and not beyond that. There are no mistake apparent from the record pointed out in the MA of the assessee. Therefore he requested that MA should be rejected. 6. We have heard the Ld. DR at length, perused the material on record, MA filed by the assessee and the Tribunal order. It is seen from the MA filed by the Misc. Application No. 12/Asr/2022 (In I.T.A. No. 49/Asr/2018) Assessment Year: 2014-15 3 assessee that he had reiterated the written submission filed during the appellate proceedings without pointing out any mistake apparent from the record to be rectified under section 254(2) of the Income Tax Act. It is clarified that even the observation that the matter might have been decided erroneously and the Tribunal had no jurisdiction within its power that it may pass the order to recall its earlier order which is erroneous order on merits under section 254(2). In our view if order passed by the Tribunal was erroneous on merits, in that case the remedy available to the assessee was to prefer an appeal before the Hon’ble High Court, which in fact the right forum to address the grievance of the assessee. Recently, Hon’ble Apex Court in the case of CIT Vs. Reliance Telecom Ltd.,133 Taxmann 41 has settled the issue of Tribunal power under section 254(2) of the Act as under: 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. 6.1 In the present case, since, a detailed order was passed by the Tribunal in original proceedings while adjudicating the appeal on merits of the case. Therefore, the said order of the Tribunal could not recalled, in exercise of power under section 254(2). 6.2 If the assessee was still of the opinion that the order passed by the Tribunal were errorneous either on facts or in law, in that case, the only remedy available to the assessee was to prefer an appeal before the Hon’ble High Court. Misc. Application No. 12/Asr/2022 (In I.T.A. No. 49/Asr/2018) Assessment Year: 2014-15 4 7. In view of the matter, we find no merit and substance in M.A filed by the assesse and therefore the same is as such rejected. 8. In the result, M.A filed by the Assessee is dismissed. Order pronounced in the open court on 16/06/2023 Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member A.G 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