Assistant Commissioner of Income Tax Circle, Chhindwara V. Hajarimal Mishrimal Bafana, Chhindwara

MA 13/JAB/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4551 (ITAT-JABALPUR)
• Duration Of Justice: 4 year(s) 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 19-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Retrospective amendment
• Section: 143(3); 274; 143(2); 254(2)

Judgement Text

MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 1 | P a g e IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR (through virtual mode) BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER & BEFORE SHRI MANOMOHAN DAS, JUDICIAL MEMBER MA Nos.13 & 14/JAB/2018 [arising out of ITA Nos.175 & 176/JAB/2016] Assessment Years: 2004-05 & 2005-06 Assistant Commissioner of Income Tax, Circle Chhindwara, Shardha Saburi Bhawan, Opposite Danielson College, Nagpur Road, Chhindwara (M.P.) - 480001 vs. Hajarimal Mishrimal Bafna, Tar Bazar, Shastri Ward, Pandhurna, Chhindwara - (M.P.) [PAN: AACHH 2050R] (Applicant) (Respondent) Revenue-Applicant by Sh. S.K. Halder, Sr. DR Assessee-Respondent by Shri G.N. Purohit, Sr. Adv. Date of hearing 18/02/2022 Date of pronouncement 29/04/2022 ORDER Per Sanjay Arora, AM: The instant Miscellaneous Applications (MAs) by the Revenue are directed against the common Order under section 254(1) of the Income Tax Act, 1961 („the Act‟ hereinafter) dated 10.11.2017 by the Tribunal in respect of the assessee‟s assessments u/s. 143(3) of the Act for the relevant assessment years (i.e., AYs. 2004-05 and 2005-06), since partly allowed in first appeal by the Commissioner of Income Tax (Appeals)-1, Jabalpur („CIT(A)‟ for short). 2. The Tribunal in the instant case dismissed the Revenue‟s appeals on the basis that the impugned assessments were void ab inito in the absence of territorial jurisdiction with the incumbent Assessing Officer, being, as it notes it, MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 2 | P a g e ACIT, Chhindwara. The Revenue‟s grievance per its‟ instant petitions is that there has been no assignment of territorial jurisdiction to the authority, which the Tribunal states to be „ACIT, Chhindwara‟. A mere glance at the assessment orders, forming part of the Tribunal‟s record, clarifies the truth of the assertion by the Revenue; the same having been made by „Additional CIT, Chhindwara‟, even as stated in the Revenue‟s grounds, identical for both the years, as under: „1. The Hon'ble ITAT has held the assessment passed without any jurisdiction is arbitrary, bad in law on the fact that the order passed by the department lacks the specification of assigning territorial jurisdiction of the assessing officer. The jurisdiction in the case of the assessee was assigned to the Addl.CIT, Range, Chhindwara, who has the territorial jurisdiction of the case of the assessee and not ACIT as mentioned in the order of the Tribunal. 2. The Hon'ble ITAT in para 3 of the order in ITA No. 175 & 176/Jab/2016 has observed that - "The assessee submitted an objection for assigning the jurisdiction from ACIT Chhindwara to the ACIT, Jabalpur as per CIT order dated 31.01.2006 u/s. 127 of the Act. The CIT Jabalpur vide order u/s 127(1) & 3 has transferred the jurisdiction of the case from ACIT, Chhindwara to Addl. CIT, Chhindwara. (emphasis, by underlining & italics, ours) Nevertheless, and even so, this variation could be a result of a typographical error, even as conceded to by Sh. Purohit, the ld. senior counsel for the assessee, which would surely have no material impact – apart from of course correcting the relevant mistake, as Sh. Purohit would argue, further stating that an assessee or litigant ought not to and could not possibly be prejudiced for the reason that an order does not refer to the facts of the case or records the arguments advanced in as much detail as one may regard proper, on which aspect again there could again be no dispute in principle. It rather seems strange to even suggest that the Tribunal decided on the jurisdiction of an authority without clarity on as to whose (i.e., which Authority‟s) jurisdiction is being challenged. Why, for all we know, the Tribunal may have, while writing „ACIT, Chhindwara‟ meant „Additional Commissioner of Income Tax, Range Chhindwara‟ and not „Assistant Commissioner of Income Tax, Chhindwara‟; it MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 3 | P a g e using an abbreviated form and neither would the absence of the word „Range‟ before the word „Chhindwara‟ be of much consequence; „Chhindwara‟ qua an Addl. CIT, the Range Head, implying Range Chhindwara. The matter was proceeded with, to begin with, to clarify the relevant facts. Toward this, the issue raised before the Tribunal, and its‟ adjudication thereof being of prime reliance, were read out, and are being also reproduced hereinafter. 3. The assessee‟s relevant ground/s before the Tribunal, identically worded for both the years, read as under: „The assessment order framed by additional commissioner is without jurisdiction. The additional ground should have been allowed. The order of assessment should be annulled.‟ Its‟ adjudication by the Tribunal, and toward which we reproduce its‟ order, is as under: “2. The assessee has taken multiple grounds of appeal. However in both the years of appeal the assessee has preferred grounds challenging the legality of the order passed by the Assessing Officer. The contention of the assessee is that the order passed by the ACIT is illegal and without jurisdiction. These cases were heard together relating to the same assessee, facts being similar and grounds are common, these appeals are disposed of in this consolidated order. 3. The brief facts appearing in this case are that the assessment proceedings were started by the Assessing Officer, i.e., ACIT, Chhindwara by issuing of notice u/s. 143(2). However when the Assessing Officer was in process of hearing, the jurisdiction of the case was transferred on 31st January, 2006, by the order of CIT u/s.127(l) and (3) of the Act to the ACIT, Chhindwara. The ACIT issued a notice u/s. 143(2) to the assessee on 01.02.2006. The assessee submitted an objection for assigning the jurisdiction from ACIT, Chhindwara to the ACIT, Jabalpur as per CIT order dated 31.01.2006 u/s.127 of the Act. The objection was dated 6 th February, 2006. The objection was addressed to the CCIT, Jabalpur and copies were marked to the Chairman CBDT, New Delhi, the CIT, Jabalpur and the ACIT, Chhindwara. This objection was raised within 30 days from the date of issuance of notice u/s. 143(2) of MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 4 | P a g e the Act by the ACIT, Chhindwara. The ACIT did not take cognizance of the objection raised by the assessee and proceeded to complete the assessment u/s. 143(3) of the order. 4. At the time of hearing, learned AR of the assessee vehemently argued that the assessment framed by the ACIT is illegal and without jurisdiction. Learned AR further argued that there was a circular from CBDT wherein instruction was issued to the respective Commissioner and in accordance with the circular the Commissioner assigned jurisdiction to the various Assessing Officers. However, when the power of assessment was conferred on the Assessing Officer, the territorial jurisdiction was not specified in the order. Unless the territory is assigned, order is not valid. 5. Learned DR, on the other hand, relied upon the order of the sub-ordinate authorities. 6. We have perused the case records, heard the rival contentions and we have perused in detail provision of Section 120(3) r.w.s. 124(1) of the Act. We find that Section 124 clearly specifies that the Assessing Officer who has been vested with jurisdiction over any area, within limits of such area he shall have jurisdiction, it is crystal clear that the provision speaks of jurisdiction of the Assessing Officer the area very vital and the limits of such area in which the Assessing Officer will exercise its jurisdiction is definitely a requirement in the statutes. In the present case, the order passed by the department lacks the specification of assigning territorial jurisdiction of the Assessing Officer. We, therefore, in our considered view hold such assessment passed without any jurisdiction is arbitrary, illegal, bad in law and therefore, quashed. Hence, the assessee succeeds on the legal grounds raised before us and the other grounds therefore become infructuous. 7. In the result, the appeals filed by the assessee for both the years are allowed.” (emphasis, in italics, ours) The order is, we are afraid to say, sans any reference to Additional Commissioner of Income Tax, Range Chhindwara (Addl. CIT, Chh.), i.e., the authority whose jurisdiction to act as the Assessing Officer is under dispute. MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 5 | P a g e 3. The only inference one can draw from the impugned order is that the incumbent AO, i.e., Asst. CIT, Chhindwara (or, perhaps, Asst. CIT, Jabalpur) acted as the AO without having been assigned territorial jurisdiction by the CIT, Jabalpur vide his order u/s. 127 dated 31/01/2006. The same, i.e., the transfer of jurisdiction of the assessee‟s case, being, on the contrary, to Addl. CIT, Range Chhindwara (PB-1, pgs. 18-19/ PB-1 refers to the Paper-Book filed by the assessee on 18.01.2017 in the appellate proceedings before the Tribunal for AY 2004-05), it becomes incumbent to understand the relevant facts. The same, as gathered from the record, are that the assessee is a Hindu Undivided Family (HUF) in the business of, besides aadhat on Soyabeen sales, trading in food grains, oil seeds and cotton, with its‟ principal place of business at Tar Bazar, Pandhurna, Chhindwara. It filed its‟ return of income for AY 2004-05 on 30.10.2004. The same was selected for being subject to the verification procedure under the Act by the service of notice u/s. 143(2) on 18.3.2005 by the Assistant Commissioner of Income Tax, Circle Chhindwara (ACIT, Chh.), its‟ Assessing Officer (AO). Order u/s. 127(1) & (3) of the Act dated 31.01.2006 was passed by the Commissioner of Income Tax-1, Jabalpur („CIT‟ for short), transferring the assessee‟s case (whose name appears at serial number 9 of the second column) from ACIT, Chh. to Additional Commissioner of Income Tax, Range Chhindwara (Addl. CIT, Chh.) w.e.f. 31.01.2006. A corrigendum dated 02.02.2006 (PB-1, pg. 20), substituting „ACIT, Circle Chhindwara‟ with „ACIT, Circle Chhindwara/ITO Ward Chhindwara‟, was issued. In consequence, fresh notice u/s. 143(2) was issued by the Addl. CIT, Chh. on 10/2/2006 and served on the assessee on 17/2/2006. The assessee objected to the said change vide letter dated 16.02.2006 (submitted on 20.02.2006) addressed to the Chief Commissioner of Income Tax (CCIT), Bhopal, copy of which was marked also to Addl. CIT, Chh., i.e., the incumbent AO (PB-1, pgs. 15-17). No cognizance of this objection was taken by the AO, i.e., Addl. CIT, Chh., who proceeded with the assessment, completing it on 26.12.2006, even as the assessee‟s said MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 6 | P a g e objection contained a request – in its words “not to take any action for assessment proceedings till the order is passed by the higher authorities on its application.” For AY 2005-06, the return, filed on 25.10.2005, was followed by notice u/s. 143(2), served on 29.10.2006, by the Addl. CIT, Chh. as the AO, completing the assessment on 24.12.2007. The assessee raised the issue of the jurisdiction (of the AO) in appeal before the ld. CIT(A) for both the years, and on it being dismissed, before the Tribunal, which held in its‟ favour, quashing the impugned assessments for want of jurisdiction with the AO and, therefore, did not adjudicate any other ground of appeal, the same being rendered infructuous. It is this adjudication by the Tribunal that stands assailed as mistaken before us by the Revenue. All these facts are corroborated by the material on record and admitted. 4. We may next proceed to issue our findings, i.e., after having heard the parties and perused the material on record. Findings 4.1 As would be apparent from a mere browse of the impugned order (IO), there is no clarity with regard to the primary facts of the case as well as indeed as to the law governing the subject matter of appeal, viz. whose jurisdiction stands transferred; how is the same contemplated to be resolved under the Act; if it has actually been, and so on, i.e., the related issues, which we may, for the sake of clarity, elaborate as under. It is not clear on a reading of the impugned order as: (a) to whom the jurisdiction to act as the AO in the assessee‟s case has been assigned by the CIT-1, Jabalpur vide his order dated 31/01/2016, i.e., ACIT, Jabalpur or ACIT, Chhindwara – which itself is incomprehensible; ACIT, Chhindwara being also noted as the AO holding the charge who issued the notice u/s. 143(2) and, besides, there could be only one transferee, while it is the Addl. CIT, Chhindwara, whose jurisdiction to act as such is being disputed by the assessee? (refer para 3 of the impugned order – IO) MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 7 | P a g e (b) to whether the non-cognizance or non-disposition of the assessee‟s objection to the transfer of jurisdiction in its‟ case could be assailed by it before the appellate authorities under the Act? (paras 3 to 6) (c) to whether this issue, i.e., the validity of the impugned assessment/s, in view of lack of jurisdiction with the AO, i.e., Addl. CIT, Chhindwara, was taken up by the assessee before the first appellate authority, whose order is under challenge before the Tribunal, and in whose order that by the AO merges where the relevant issue stands adjudicated upon by him. (paras 3 to 6) (d) whether the objection dated 16/02/2006, which is only objection raised by the assessee, could be regarded as applicable for AY 2005-06, notice u/s. 143(2) for which year was issued on 27/10/2006, i.e., much later. Further, in the absence of any objection, as per the clear law, there is no question of this matter being decided even through the administrative channel (s. 124(2)) r.w.s. 127(3). (paras 3 to 7) 4.2 As regards (a) above, Shri Purohit would concede of a „typographical error‟ in writing „ACIT, Jabalpur‟ at para 3 of the impugned order, stating that the same be read as „Addl. CIT, Chhindwara‟, which, as per him, is the only mistake in the impugned order, so that effecting the said correction would close the matter. We would have readily agreed if the impugned order was otherwise consistent, both internally, as well as with the facts borne out by the record, or even made its‟ order comprehensible, which continues to be not so. Rather, as pointed out during hearing, it would require several changes. It is not an order passed by ACIT that was being assailed as illegal (paras 2,4). The jurisdiction of the case was not transferred to ACIT, Chhindwara u/s. 127 (para 3). The ACIT did not issue notice 143(2) on 01/02/2006 (para 3). There is no objection dated 06/2/2006 on record (para 3). The copies of the objection dated 16.2.2006 were not marked to CIT, Jabalpur and ACIT, Chhindwara (para 3). Accordingly, it is not the ACIT who did not take cognizance of the assessee‟s objections (para 3). Rather, it took considerable pains on the part of the authorized representatives for us to understand the facts of the case (refer para 3 of this order); the facts as MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 8 | P a g e recorded by the Tribunal being at considerable variance with those borne out by and manifest from the record, and this is what had led us to state of the impugned order – which is sans any reference to the Addl. CIT, Chhindwara, the authority whose capacity to Act as the assessee‟s AO was under question before the Tribunal, and with reference to which question the Revenue‟s appeal stands decided by it, as incomprehensible. In short, all the facts stated in the impugned order, and upon which it is based, are wrong/incorrect, i.e., on the basis of the material on record. In sum, the impugned order is de hors the record. There is, consequently, no finding by the Tribunal to the effect that the assignment of jurisdiction to Addl. CIT, Chhindwara on 31/01/2006 suffered from the vice of non-specification of territorial jurisdictional, disqualifying him to act as the assessee’s AO (which was assessee’s case before it), much less the basis of such a finding. This is precisely the Revenue‟s grievance, stating that jurisdiction had not been transferred to ACIT, Chh., but to Addl. CIT, Chh. 4.3 Without prejudice, the Tribunal, then, notes that the objection by the assessee to CCIT, Jabalpur (actually CCIT, Bhopal), which is actually on 20/02/2006, made within the time limit specified u/s. 124(3) of the Act, was not taken cognizance of by ACIT, Chhindwara. He being no longer the AO, could not possibly have. Even assuming a typographical error, so that the same is to be read as „Addl. CIT, Chhindwara‟, the course available in law, specified in sec.124 itself (per sub-section(2) thereof) is per the administrative authorities under the Act, i.e., through the administrative channel. The law in the matter is well-settled with one of the earliest decisions being in R.B. Seth Teomal v. CIT [1959] 36 ITR 9 (SC). Shri Purohit would object, stating that, even so, this issue cannot be raised at this stage. We are wholly in disagreement. The question as to whether the territorial jurisdiction of the AO is within the appellate jurisdiction of the appellate authorities under the Act, as the Tribunal, or outside it, is integral to the issue the Tribunal is called upon to decide, i.e., whether the MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 9 | P a g e assessment orders do indeed suffer from the vice of lack of jurisdiction with the AO. An appellate authority (as the Tribunal) cannot, after all, presume to have the jurisdiction to decide an issue merely because the same has been raised before it; its‟ powers being clearly defined under the Act. Nor would the non- objection to the same by the Revenue confer jurisdiction to the Tribunal to decide it, i.e., where none, in law, exists. The law in the matter is well-settled, for which we may, for the sake of completeness of this order, advert to decision in CIT v. Reliance Telecom Ltd. [2022] 440 ITR 1 (SC). If the Tribunal cannot decide an issue, its‟ finding in the matter is non est in law. The same is thus liable to be rectified, to bring it in conformity with the law, even as explained by the Hon'ble Courts, as in, to cite some, Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC); Northern Air Products (P.) Ltd. v. CIT [2005] 274 ITR 225 (MP); CIT v. MPFC [2005] 272 ITR 33 (MP), where an order passed in disregard of the statutory provisions or inconsistent with the law as laid down, was held as liable to be rectified. Further, even as we consider this aspect as arising directly in deciding the MA before us, moved by the Revenue in time, the same can equally be taken suo motu by the Tribunal u/s. 254(2), and for which the time limitation u/s. 254(2), which was specifically read out for the purpose during hearing, is not applicable. 4.4 Without prejudice, the third fundamental flaw in the impugned order is that it proceeds de hors the order of the first appellate authority, whose order is under challenge by way of an appeal before the Tribunal, and in whose order, that by the AO merges where the appellate order decides the relevant issue. This is as, where so, as in the instant case, irrespective of the passing of the order by the Tribunal, the finding by the first appellate authority shall remain undisturbed and, thus, continue to hold; there being no merger in its respect. We have already noted absence of any finding by the Tribunal in the matter. Rather, even a finding by the Tribunal, inasmuch as it does not consider the order under MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 10 | P a g e appeal before it, addressing and meeting the finding/s under challenge, cannot be regarded as a speaking order. The impugned order, thus, does not stand the test of a sustainable or valid judicial order on this score as well. Though, we are in view thereof and the limited scope of the instant proceedings, not required to, we may, yet, in view of the arguments advanced before us, mention the contents of the findings by the first appellate authority for the sake of better appreciation of facts as well as completeness of this order. The ld. CIT(A), after calling for a remand report from the AO, clarified that the assessee‟s reliance on the Office Memoranda (OM) dated 19/09/2001 by CIT-1, Jabalpur, would be of no consequence in view of the following facts (each of which is not disputed): (a) Notification No. 267, dated 17/09/2001 by CBDT, vesting the territorial jurisdiction to Jt. CIT/Addl. CIT; (b) the retrospective amendment, i.e., w.e.f. 01/06/1994, by Finance Act, 2007, to section 2(7A), which defines the term „Assessing Officer‟, to include Jt. CIT/Addl. CIT; (c) order u/s. 120(4)(b), dated 30/11/2006 by CIT-1, Jabalpur assigning the territorial jurisdiction to Jt./Addl. CIT for the three districts of Chhindwara, Seoni and Balaghat; and (d) the assessment order for the A.Y. 2004-05 being dated 26/12/2006, so that it was after passing of the order u/s. 120(4)(b) (supra). There has been no reference to any of these facts in the impugned order, which has been rendered oblivious of the facts deemed pertinent by the ld. CIT(A); indeed de hors his order. If this is not a classical case of non-application of mind, what is? (refer: Sahara India (Firm) v. CIT [2008] 300 ITR 403 (SC)). This is apart from the legal consequence of the finding by the first appellate authority remaining undisturbed and, thus, surviving the impugned order. Shri Purohit would during hearing submit that no notice u/s. 143(2) stands issued (for AY 2004-05) on or after 30/11/2006, i.e., after the issue of order dated 30/11/2006. We refuse to be drawn into this controversy as it touches the issue of merits, which would stand excluded in rectification proceedings except to the MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 11 | P a g e extent of apparent mistakes therein. Besides, there has been no consideration of the merits by the Tribunal itself, for him to argue thereon and, further, that the law does not itself require a fresh issue of notice u/s. 143(2) on the change of incumbency and, on the contrary, provides for the continuation of the proceedings from that stage (s. 129). We may though hasten to add that this is being the said without prejudice to the settled legal position that the same is outside the purview of the appellate procedure under the Act, and contemplated to be resolved by the administrative authorities under the Act. 4.5 Finally, and again without prejudice, the adjudication by the Tribunal is, even so, valid only for AY 2004-05. This is, as afore-stated, there has been no objection by the assessee for AY 2005-06, also decided by the Tribunal along with, and on the same basis (refer paras 3 thro‟ 7 of the impugned order, reproduced at para 3 of this order). The notice u/s. 143(2) for this year, issued on 27/10/2006, could not have been objected to on 20/02/2006. That is, the basis on which the Tribunal has decided the Revenue‟s appeal for AY 2005-06 is completely inconsistent with the facts for the said year. Decision 5. It is thus clear that the impugned order is: a) based on incorrect/wrong facts as well as internally inconsistent, making it incomprehensible; b) inconsistent with the primary, undisputed facts on record, as well as without the relevant finding/s; c) without reference to the merits of the case, or indeed the order appealed against and, rather, de hors the same; d) without reference to the law in respect of the issue under reference; and e) without noticing the material difference/s between the facts of the two years under reference, which stand decided presuming identity of facts, nor considering, followed by a finding, as to the said difference/s being not relevant. MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 12 | P a g e The impugned order, therefore, becomes liable to be recalled on the first ground ((a)) itself. We, though not obliged to, have yet dealt with the matter in considerable detail only in view of the lengthy arguments by Sh. Purohit during hearing, which must accordingly find reflection and consideration in our order, and which he complained the impugned order did not. In CIT vs. Hindustan Bulk Carriers [2003] 259 ITR 449 (SC), the Apex Court explained that a court shall have to reject that construction which will defeat the plain intention of the Legislature even if there is some inexactitude in the language used, while in the instant case there has been no consideration of the clear language – which is to be honoured (CIT v. Calcutta Knitwears [2014] 362 ITR 673 (SC)) and, thus, de hors the provisions of the Act, as well as the settled law in the matter. In CBI vs. Keshub Mahindra & Others [in Curative Petition Nos. 39-42 of 2010 in Criminal Appeal Nos. 1672-1675 of 1996], at para 4 of the said decision dated 11/5/2011, it held as: „No decision by any court, this court not excluded, can be read in the manner as to nullify the express provisions of an Act or the Code and the 1996 judgment never intended to do so.‟ A speaking order is an essential attribute of a judicial order, which is clearly lacking, making the impugned order unsustainable in law, even as explained by the Apex Court per its‟ two recent decisions (Pr. CIT vs. Bajaj Herbals Pvt. Ltd. (in CA No. 2659/2022, dated 07/04/2022; Pr. CIT vs. Motisons Entertainment India & Ors. (CA arising in SLP (Civil) No. 10396/2019 & Ors., dated 07/03/2022). In Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466 (SC), it was held that the purpose behind the enactment of section 254(2) of the Act, dealing with the power of the Appellate Tribunal to amend any order passed by it under sub-section (1), if any mistake apparent from the record is brought to its‟ notice, is based on the fundamental principle that no party appearing before the Appellate Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This MA Nos.13 & 14/JAB/2018 Asst. CIT v. Hajarimal Mishrimal Bafna (AYs. 2004-05 & 2005-06) 13 | P a g e fundamental principle, it explained, has nothing to do with the inherent powers of the Tribunal. If prejudice has resulted to the party, which prejudice is attributable to the Tribunal‟s mistake, error or omission, and which error is a manifest error, then the Tribunal would be justified in rectifying its‟ mistake. As explained by the Apex Court in Distributors (Baroda) Pvt. Ltd. vs Union of India [1985] 155 ITR 120 (SC), to perpetuate an error is no heroism, and to rectify it is the compulsion of judicial conscience. 5.2. We, in view of the foregoing, i.e., the above enumerated patent mistakes that have been found to imbue the impugned order, have no hesitation to recall the same and restore the Revenue‟s appeals under reference for being heard and decided afresh after hearing the parties, i.e., on merits, in accordance with law, and per a speaking order/s. The Registry is directed to fix these appeals for hearing before the appropriate Bench in the normal course. We decide accordingly. 6. In the result, the Revenue‟s MAs are allowed. Order pronounced in the open Court on April 29, 2022. sd/- sd/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Dated: 29/04/2022 Copy of the Order forwarded to: 1. The Applicant: Assistant Commissioner of Income Tax, Circle Chhindwara, Shardha Saburi Bhawan, Opposite Danielson College, Nagpur Road, Chhindwara, (M.P.) – 480001 2. The Respondent: M/s. Hajarimal Mishrimal Bafna, Tar Bazar, Shastri Ward, Pandhurna, Chhindwara - (M.P.) 3. Pr. CIT-1, Jabalpur 4. CIT(Appeals)-1, Jabalpur 5. Sr. DR, ITAT, Jabalpur 6. Guard File