Gabani Polyster Pvt. Ltd., Surat V. The Income tax Officer, Ward-1(1)(2), Surat

MA 14/SRT/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2064 (ITAT-SURAT)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-02-2022
• Assessment Year: 2005-2006
• Appeal Filed On: 31-10-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SITA RAM MEENA
• Keywords: Opportunity of being heard
• Section: 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकरअपीलसं./MA Nos.13 to 14/SRT/2021 (Arising out of ITA Nos.823/AHD/2017 & 824/AHD/2017) (Ǔनधा[रणवष[ / Assessment Years: (2004-05 to 2005-06) (Virtual Court Hearing) Gabani Polyster Pvt. Ltd., A-11, Patel Industrial Estate, Bambawadi, Katargam, Surat-395004. Vs. The ITO, Ward-1(1)(2), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAACG8686K (Assessee) (Respondent) Assessee by : Shri Hiren Vepari, CA Respondent by : Shri Sita Ram Meena, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 18/02/2022 घोषणाकȧतारȣख/Date of Pronouncement : 17/05/2022 आदेश / O R D E R PER Dr. A. L. SAINI, ACCOUNTANT MEMBER: By way of captioned application, the assessee has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961(in short ‘the Act’) has crept in the order of the Tribunal dated 14.06.2021. 2. The contention of the assessee in these Miscellaneous Applications (MA) are that consolidated order passed by the Tribunal in ITA Nos. 823 & 824/AHD/2017 for AY.2004-05 and 2005-06 contain the mistake apparent from record. The Learned Counsel for the assessee pleads that para nos. 10, 11 and 12 of the order of the Tribunal did not appreciate the facts of the assessee and case law cited by the assessee in right prospective. Therefore, Learned Counsel prays the Bench that order of the Tribunal may be recalled to adjudicate the issue on merits. MA. 13 to 14/SRT/2021 AY.2004-05 to 2005-06 Gabani Polyster Pvt. Ltd. Page | 2 3. On the other hand, Learned Departmental Representative (ld. DR) for the Revenue argues that Tribunal has already adjudicated the various issues involved in these two appeals on merits. To adjudicate the various issues again on merit is not permitted under the law. As per the mandate of the provisions of section 254 (2) of the Act, the Tribunal can rectify only mistake apparent from the record. To adjudicate the issue on merits again means to review the order, which is not permitted under section 254 (2) of the Act. The ld DR further submitted that that Tribunal has considered the entire facts of the assessee’s case in para no. 7 of its order, and in para nos. 10 to 12 of its order, the adjudication was done on merits. Therefore, the Tribunal has considered the entire facts and case law relied by the assessee, hence such order passed by the Tribunal, should not contain mistake apparent from records. 4. We have heard both the parties and perused the material available on record. We find merit in the proposition canvassed by ld DR for the Revenue. We have also gone through the order of Tribunal dated 14.06.2021 and observed that entire facts and case law submitted by ld Counsel have been taken into account. The Tribunal narrated the entire facts of the assessee`s case in para 7 of its order. The Tribunal has adjudicated the issues on merits, vide paras 9 to 12 of its order. Such order of the Tribunal should not contain any mistake apparent from record and to recall such order means to review its own order which is not permitted by the provisions of section 254(2) of the Act. The provisions of section 254(2) of the Act, reads as follows: “Orders of Appellate Tribunal. “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. Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard : [Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]” MA. 13 to 14/SRT/2021 AY.2004-05 to 2005-06 Gabani Polyster Pvt. Ltd. Page | 3 5. Having gone through sub-section 2 of section 254 of the Act, as noted above, we observed that “any mistake apparent from the record” can be rectified. The plain meaning of the word 'apparent' is that it must be something which appears to be ex- facie and incapable of argument and debate. Thus, section 254(2) of the Act does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. Therefore, based on this factual position and taking into account the provisions of section 254(2) of the Act, we dismiss both the miscellaneous application filed by the assessee. 6. In the result, Miscellaneous Applications (MA Nos. 13 and 14) filed by the assessees are dismissed. Registry is directed to place one copy of this order in all appeals folder / case files. Order is pronounced on 17/05/2022, as per Rule 34 of Income Tax Appellate Tribunal, Rule 1963. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 17/05/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat