ACIT, CC-II, Ludhiana V. Sh. Chetan Rupal, Ludhiana

MA 144/CHANDI/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2245 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-11-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 22-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEENAKSHI VOHRA CIT
• Keywords: Opportunity of being heard; Procedural lapse; Competent authority
• Section: 143(3); 274; 254(2); 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL COURT) .., !' '# $, % &' BEFORE: SHRI. N.K.SAINI, VP & SHRI , SANJAY GARG, J M MISCELLANEOUS APPLICATION NO. 144/CHD/2019 ( ITA NO. 267/CHD/2018) ASSESSMENT YEAR : 2014-15 THE DCIT, CC - II LUDHIANA SHRI CHETAN RUPAL H.NO. 374., BABA BALAKNATH ROAD, CIVIL LINES, LUDHIANA PAN NO: AGAPR0397G APPELLANT RESPONDENT !' ASSESSEE BY : SHRI ASHWANI KUMAR, CA #!' REVENUE BY : SMT. MEENAKSHI VOHRA, ADDL. CIT $ %! & DATE OF HEARING : 11/11/2020 '()*! & DATE OF PRONOUNCEMENT : 19/11/2020 &(/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE DEPA RTMENT AGAINST THE ORDER DT. 24/04/2019 IN ITA NO. 267/CHD/2018 FOR THE A.Y. 2014-15. IN THIS MISCELLANEOUS APPLICATION THE DEPARTMENT STATED AS UNDER: MISCELLANEOUS APPLICATION IN RESPECT OF ORDER DATED 24.04.2019 PASSED IN ITA NO. 267/CHD/2018 FOR ASSESSMENT YEAR 2014-15. THAT A SEARCH U/S 132 OF THE INCOME TAX ACT, 1961 W AS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 24.10.2013. THE ASSESSM ENT IN THIS CASE WAS COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 22.03.2016 AT IN INCOME OF RS.65,60,040/-. FURTHER, A PENALTY U/S 271AAB AMOUNTING TO RS.6,00,000/ WAS IM POSED ON THE ASSESSEE ON THE UNDISCLOSED INCOME AMOUNTING TO RS.60,00,000/ ADMIT TED BY THE ASSESSEE U/S 132(4) OF THE INCOME TAX ACT BY ORDER DATED 29.09.20 1 6. AGGRIEV ED, THE ASSESSEE FILED AN APPEAL BEFORE THE LD.CIT(A) 5, LUDHIANA. 2. THAT THE LD. CIT(A)-5, LUDHIANA VIDE ORDER DATED 07 .12.2017 IN APPEAL NO.418/IT/CIT(A)-5/LDH/2016-17 HAD CONFIRMED THE LE VY OF THE PENALTY U/S 271AAB. AGGRIEVED WITH THIS ORDER, THE ASSESSEE FILED APPEA L BEFORE THE HON'BLE ITAT, CHANDIGARH VIDE ITA NO. 267/CHD/2018. 3. THAT THE HON'BLE ITAT PASSED ORDER ON THE ASSESSEES APPEAL, WHICH WAS RECEIVED IN THE OFFICE OF PR. CIT(C), LUDHIANA ON 23.05.2019. T HE HON'BLE ITAT HELD THE PENALTY ORDER VOID ABINITIO ON THE ONLY GROUND THAT PENALTY WAS L EVIED VIDE ORDER DATED 29.09.2016 BEFORE OBTAINING APPROVAL OF THE JCIT AS THE STATUT ORY APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, LUDHIANA WAS ACCORDED ON 30.09.2016. 2 4. THAT WHILE ADJUDICATION OF THE APPEAL IN ITA NO. 26 7/CHD/2018 FOR THE A.Y.20I4-15, THE HON'BLE ITAT HAD HELD AS UNDER:- 'FROM THE ABOVE PROVISIONS CONTAINED IN SECTION 274 OF THE ACT, IT IS CRYSTAL CLEAR THAT THE PENALTY UNDER SECTION 271AAB OF THE ACT, WHICH FALL S IN CHAPTER XXI OF THE ACT SHALL NOT BE IMPOSED BY THE ASSESSING OFFICER UNTIL AND UNLESS P RIOR APPROVAL IS TAKEN FROM THE CONCERNED JOINT COMMISSIONER OF INCOME TAX(JCIT). T HE USE OF WORD 'SHALL' MAKE IT MANDATORY TO TAKE THE PRIOR APPROVAL OF THE JCIT/AD DITIONAL CIT BEFORE PASSING THE ORDER IMPOSING THE PENALTY UNDER SECTION 271 AAB OF THE A CT. IN THE PRESENT CASE IT IS CRYSTAL CLEAR FROM THE PENALTY ORDER PASSED BY THE ASSESSIN G OFFICER THAT THE ORDER WAS PASSED ON 29.09.2016 WHILE THE APPROVAL FROM THE ADDITIONAL C IT, RANGE LUDHIANA WAS ACCORDED VIDE LETTER NO.1034 DATED 30.09.2016, WHICH CLEARLY ESTABLISHED THAT THE PENALTY ORDER WAS PASSED BY THE ASSESSING OFFICER ON 29.09.2016 BEFOR E TAKING THE APPROVAL FROM THE CONCERNED ADDITIONAL CIT/JCIT. THEREFORE, THE PENAL TY ORDER PASSED BY THE ASSESSING OFFICER FOR LEVYING THE PENALTY UNDER SECTION 271AA B OF THE ACT WAS VOID ABINITIO. IN THAT VIEW OF THE MATTER THE IMPUGNED PENALTY LEVIED U/S 271AAB OF THE ACT BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) IS DELETED. ' 5. THAT THE PERUSAL OF THE RECORDS SHOW THAT THE AS SESSING OFFICER HAD FORWARDED THE DRAFT PENALTY ORDER U/S 271AAB OF THE I.T.ACT,1961 FOR AP PROVAL OF JCIT, CENTRAL RANGE. LUDHIANA AS PER THE PROVISIONS OF SECTION 274 OF THE I.T.ACT , 1 96 1. THE DRAFT ORDER WAS DATED AS 29.09.2016 AND THE APPROVAL WAS ACCORDED BY THE JCI T .CENTRAL RANGE, LUDHIANA TO THE ASSESSING OFFICER VIDE LETTER NO. 1034 DATED 30.09. 2016. INADVERTENTLY, THE DATE OF ORDER ON THE PENALTY ORDER ISSUED REMAINED UNCHANGED AS 29.0 9.2016 WHEREAS IN THE PENALTY ORDER THE ASSESSING OFFICER HAD CLEARLY INDICATED THAT TH E PRIOR APPROVAL UNDER SECTION 274(2) OF THE INCOME TAX ACT WAS ACCORDED BY THE ADDL./JOINT CIT, CENTRAL RANGE, LUDHIANA VIDE HIS LETTER NO. 1034 DATED 30.09.2016. THUS, THE ERR OR IN THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER IS ONLY TYPOGRAPHICAL AS THE DATE RECORDED ON THE DRAFT PENALTY ORDER SENT TO THE JCIT, CENTRAL RANGE, LUDHIANA CLEARLY R EMAINED UNCHANGED ON THE ORDER WHICH WAS PASSED AFTER PRIOR APPROVAL ON 30.09.201 6. THE ABOVE FACTS COULD BE SUMMARIZED AS BELOW: NAME OF THE ASSESSEE A.Y. DATE OF SUBMISSION OF DRAFT ORDER DATE OF PENALTY ORDER IN DRAFT ORDER DATE OF APPROVAL DATE MENTIONED IN PENALTY ORDER (FINAL ORDER) DATE OF SERVICE SH. CHETAN RUPAL 2014-15 29.09.2016 29.09.2016 30.09.2016 29.09.2016 30.09.2016 6. THAT IT MAY ALSO BE NOTED THAT IN THE LAST PARA THE PENALTY ORDER HAS A CLEAR MENTION OF DISPATCH NO AND DATE OF JCIT'S LETTER CO NVEYING THE APPROVAL U/S 274(2)(B) OF THE INCOME TAX ACT, 1961 WHICH CANNOT BE MENTIONED A DAY BEFORE OF ITS ISSUANCE BY JCIT. MOREOVER, THE PENALTY ORDER AND RELEVANT NOTI CE OF DEMAND HAS BEEN SERVED UPON ASSESSEE ON 30.09.2016 I.E. THE DAY ON WHICH APPROV AL WAS ISSUED BY JCIT AND ALSO BEFORE EXPIRING OF LIMITATION. IT MAY ALSO NOT BE OUT OF P LACE TO MENTION THAT THE CORRECT PARTICULARS OF JCIT'S APPROVAL IS MENTIONED IN THE PENALTY ORDE R SERVED UPON ASSESSEE BEFORE EXPIRY OF LIMITATION. AS SUCH NOT CHANGING OF DATE OF ORDER(F ROM THE DATE OF DRAFT ORDER SUBMITTED BY ASSESSING OFFICER TO THE JCIT FOR APPROVAL U/S 274( 2) OF THE INCOME TAX ACT, 1961) IS AN INADVERTENT CLERICAL MISTAKE WHICH IS OTHERWISE COV ERED U/S 292B OF THE INCOME TAX ACT, 1961. 7. THAT IN VIEW OF THESE FACTS THERE WAS NO OCCASION F OR THE HON HIE IT AT TO DELETE THE PENALTY ORDER AS THE PENALTY ORDER WAS PASSED A FTER THE REQUISITE PRIOR APPROVAL OF THE JCIT/ADDITIONAL CIT AS PER THE PROVISIONS OF THE SE CTION 274(2) OF THE INCOME TAX ACT. ALSO THE ABOVE MENTIONED ERROR IN THE PENALTY ORDER IS O NLY TYPOGRAPHICAL, WHICH COULD BE CURED AS PER THE PROVISIONS OF SECTION 292B OF THE I.T.ACT, 1961 WHICH IS PRODUCED AS UNDER:- 3 'NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS O R OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN F URNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT SHAL L BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT.' 8. THAT THE HON TALE CALCUTTA HIGH COURT WHILE DECIDIN G THE MATTER OF MULCHAND RAMPURIA VS ITO(2001)252 ITR 758(CAL) HAS HELD THAT 'AFTER ENACTMENT OF SECTION 29213 WHICH CAME INTO FORCE ON 01.10.1975, NO NOTICE SHAL L BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION THEREIN I F THE NOTICE IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURP OSE OF THE ACT.' 9. THAT THE RATIO OF THIS CASE IS SQUARELY APPLICABLE ON THE FACTS OF THE INSTANT CASE ALSO WHEREIN, THE SUBSTANCE AND EFFECT OF THE PENAL TY ORDER IS IN CONFORMITY OF THE PROVISION OF THE ACT AND AS SUCH THE INADVERTENT MISTAKE IS C OVERED BY THE PROVISION OF SECTION 292B OF THE INCOME TAX ACT, 1961. SD/- (BHUPINDER SINGH, IRS) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2, LUDHIANA 2. DURING THE COURSE OF HEARING THE LD. DR REITERATED THE CONTENTS OF THE AFORESAID MISC. APPLICATION AND ALSO FURNISHED THE WRITTEN SUBMIS SIONS WHICH READ AS UNDER: 1. THAT THE ASSESSEE HAD FILED AN APPEAL BEFORE HON 'BLE ITAT, CHANDIGARH, WHEREIN HE HAD CHALLENGED THE IMPOSITION OF PENALTY U/S 271 AAB OF THE ACT. HOWEVER, LATER ON THE ASSESSEE HAD CLAIMED THAT THE PENALTY ORDER U/S 271 AAB WAS VOID ABINITIO AS THE AO HAD NOT TAKEN THE PRIOR APPROVAL U/S 274(2) OF THE ACT FROM THE RANGE HEAD. HE HAD CLAIMED THAT THE DATE OF ORDER IS 29.09.2016, WHEREAS THE D ATE OF GRANT OF APPROVAL FOR IMPOSITION OF PENALTY U/S 271AAB OF THE ACT WAS 30. 0.09.2016, IN VIEW OF WHICH, THE HON'BLE ITAT HAD- ALLOWED THE-APPEAL, OF THE ASSESSEE BY DE LETING THE PENALTY IMPOSED BY THE AO U/S 271AAB OF THE ACT. 2. THAT NOW THE DEPTT. HAS FILED A MISCELLANEOUS AP PLICATION ON THE PLEA THAT THE DATE OF ORDER CONTAINED IN PENALTY ORDER IS A TYPOG RAPHICAL ERROR AND THE SAID DEFECT IS CURABLE U/S 292B OF THE ACT. FURTHER, THE PENALTY O RDER CONTAINS THE FACT THAT THE APPROVAL HAS BEEN GRANTED BY THE JCIT, CENTRAL RANGE, LUDHIA NA VIDE LETTER NO. 1034 DATED 30.09.2016. IT WAS THE DRAFT PENALTY ORDER WHICH CO NTAINED THE DATE OF ORDER AS 29.09.2016, WHICH REMAINED UNCHANGED INADVERTENTLY EVEN AFTER T HE GRANT OF APPROVAL ON 30.09.2016. AN ORDER CANNOT CONTAIN A FUTURE DATE, HENCE, THE T YPOGRAPHICAL MISTAKE, WHICH IS CURABLE U/S 292B OF THE ACT. 3. SECTION 274 IS A PROCEDURE, WHICH SAYS THAT THE PRI OR APPROVAL IS REQUIRED BY THE AO BEFORE IMPOSITION OF PENALTY. IN THE PRESENT CASE I N HAND, THE AO HAS SOUGHT APPROVAL FROM JCIT, CENTRAL RANGE, LUDHIANA ON 29.09.2016 I. E. BEFORE IMPOSITION OF PENALTY. THE APPROVAL WAS GRANTED TO THE AO BY THE JCIT ON 30.09 .2016, AFTER WHICH THE AO ISSUED PENALTY ORDER MENTIONING THEREIN SPECIFICALLY THAT THE APPROVAL FOR IMPOSITION HAS BEEN GRANTED BY THE JCIT ON 30.09.2016, THOUGH, WHICH IN ADVERTENTLY CONTAINS THE DATE OF ORDER AS 29.09.2016, WHICH IS A CURABLE DEFECT U/S 292B O F THE ACT. MOREOVER, THE PENALTY ORDER WAS SERVED UPON THE ASSESSEE ON 30.09.2016. HENCE, THE APPEAL OF THE DEPTT. DESERVES TO BE ALLOWED ON THIS GROUND. 4 4. NONETHELESS, IF THE HON'BLE ITAT IS NOT CONVINCED W ITH THE ABOVE CONTENTION, THEN RELIANCE IS PLACED ON THE JUDGEMENT OF HON'BLE MP H IGH COURT IN THE CASE OF CIT VS. DAMODARDAS MURARILAL, 93 TAXMAN 651, WHEREIN HON'BL E HIGH COURT HAS HELD THAT IMPOSITION OF PENALTY WITHOUT PREVIOUS APPROVAL OF THE COMPETENT AUTHORITY IS A PROCEDURAL IRREGUJARITY IN PROCEEDINGS LAWFULLY INI TIATED, WHICH COULD BE PERMITTED TO BE CORRECT AT A POINT AT WHICH ILLEGALITY SUPERVENED. 5. RELIANCE IS ALSO PLACED ON THE JUDGEMENT OF HON'BLE KARNATAKA HIGH COURT IN THE CASE OF GAYATHRI TEXTILES VS. CIT, 111 TAXMAN 123, WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT THE PENALTY PROCEEDINGS ONLY REQUIRE PRIOR APP ROVAL OF THE COMPETENT AUTHORITY FOR DIRECTION FOR PAYMENT OF PENALTY AND NOT FOR INITIA TION OF PROCEEDINGS. NOT OBTAINING WAS A PROCEDURAL DEFECT AND AS SUCH THE TRIBUNAL WAS JUST IFIED IN HOLDING THAT FAILURE TO OBTAIN THE PREVIOUS PERMISSION FROM THE COMPETENT AUTHORIT Y FOR IMPOSING THE PENALTY WAS ONLY A PROCEDURAL ERROR AND IT WAS NOT FATAL TO THE PENALT Y ORDER. MOREOVER, THE PROCEEDINGS WERE VALIDLY INITIATED. 6. RELIANCE IS ALSO PLACED ON THE JUDGEMENT OF HON'BLE MP HIGH COURT IN THE CASE OF KIMTEE VS. CIT 151 ITR 73, WHEREIN HON'BLE HIGH COU RT HAS HELD THAT PROCEDURAL IRREGULARITY, NOT INVOLVING QUESTION OF JURISDICTION, CAN BE CURE D. 7. RELIANCE IS ALSO PLACED ON THE JUDGEMENT OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF SARDAR HARINDER SINGH VS. ITAT, 219 ITR 257 , WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT SECTION 274(2) PROVIDES A PROCEDURAL REQUIREME NT AND DOES NOT GO TO THE ROOT OF THE JURISDICTION TO LEVY PENALTY. IT DOES NOT REQUIRE P RIOR APPROVAL BEFORE THE INITIATION OF THE PENALTY PROCEEDINGS. WHAT IS REQUIRED IS THAT IF AF TER HEARING THE ASSESSEE, IT IS DESIRED THAT A PENALTY EXCEEDING A SPECIFIED AMOUNT SHOULD BE LE VIED THEN THE PRIOR APPROVAL OF THE COMPETENT AUTHORITY SHOULD BE SOUGHT BEFORE THE ACT UAL ORDER LEVYING THE PENALTY IS PASSED. IT IS THUS A PROCEDURAL REQUIREMENT AND WOU LD APPLY TO ALL CASES. SINCE IT IS A MERE PROCEDURAL LAPSE, THE DEFECT CAN BE CURED. 8. IN VIEW OF THE ABOVE, IT IS RESPECTFULLY SUBMITTED THAT IN THE PRESENT CASE, THE PENALTY PROCEEDINGS WERE LAWFULLY INITIATED. MENTION OF WRO NG DATE ON THE PENALTY ORDER IS MERELY A TYPOGRAPHICAL ERROR, WHICH IS CURABLE U/S 292B OF THE ACT. FROM THE ABOVE DISCUSSION, IT IS RESPECTFULLY CONTENDED THAT THOUGH, THE DEPTT. HAS NOT FAILED TO SEEK/GRANT PREVIOUS APPROVAL FOR IMPOSITION OF PENALTY, YET, IF THE HON 'BLE COURT IS OF SUCH VIEW, THEN IT IS SUBMITTED THAT FAILING, RELYING UPON THE ABOVE REFE RRED JUDGEMENTS, FAILURE TO SEEK PREVIOUS APPROVAL BEFORE ISSUANCE OF PENALTY ORDER OR IMPOSI NG PENALTY IS NOT OF SUCH A FATAL NATURE SO THAT IT TENTAMOUNTS TO THE DECLARATION OF WHOLE OF THE PENALTY PROCEEDINGS AS VOID ABINITIO. 9. IT IS, THEREFORE, RESPECTFULLY PRAYED THAT THE MISC ELLANEOUS APPLICATION IN HAND FILED BY THE DEPTT. BE ALLOWED AND THE ORDER DATED 24.04. 2019 PASSED BY THE HON'BLE ITAT, CHANDIGARH IN ITA NO. 267/CHD/2018 BE RECALLED AND THE APPEAL OF THE ASSESSEE BE DECIDED ON MERITS. 3. IN HIS RIVAL SUBMISSIONS THE LD. COUNSEL FOR THE ASS ESSEE SUBMITTED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS ALREADY BEE N ADJUDICATED BY THE ITAT DIVISION BENCH, CHANDIGARH IN MA NO. 145/CHD/2019 ORDER DT. 14/01 /2020 (ARISING OUT OF ITA NO. 265/CHD/2018 DECIDED VIDE ORDER DT. 21/05/2019), COP Y OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD. IT WAS FURTHER SUBMITTED THA T THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS INVOLVED IN THE AFORESAID RE FERRED TO CASE. 5 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS ALREADY BEEN ADJUDICATED BY THIS BENCH OF ITAT IN ITA NO. 145/CHD/2019 ORDER DT. 14/01/2020 IN THE CASE OF DCIT VS. SH. SADHU RAM ROPAL (SUPRA) WHEREIN THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 5 & 6 W HICH READ AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE IDEN TICAL PLEADINGS HAVE BEEN TAKEN BY THE REVENUE IN M.A. NOS. 147 & 148/CHD/2019 (IN ITA NOS . 490 & 491/CHD/2018) IN THE CASE OF DCIT VS M/S SPORTKING INDIA LTD, LUDHIANA. THE CO ORDINATE CHANDIGARH BENCH OF THE TRIBUNAL WHILE ADJUDICATING THE IDENTICAL GROUNDS I N THE CASE OF DCIT VS M/S SPORTKING INDIA LTD, LUDHIANA (SUPRA) ORDER DATED 7.1.2020 HAS OBS ERVED AS UNDER:- 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT THE A.O. PASSED THE PENALTY ORDER UNDER SECTION 271AAB OF THE ACT, ON 2 9/09/2016 WHILE THE APPROVAL WAS GRANTED BY THE JOINT COMMISSIONER / ADDITIONAL COMM ISSIONER OF INCOME TAX, CENTRAL RANGE ON 30/09/2016 AND THE ORDER DATED 22/04/2019 WAS PASSED AFTER CONSIDERING THOSE FACTS ON RECORD, SO THERE IS NO MISTAKE APPARENT FR OM THE RECORD FOR THE PURPOSE OF RECTIFICATION UNDER SECTION 254 OF THE ACT. IN THE PRESENT CASE IT APPEARS THAT THE DEPARTMENT SEEKS THE REVIEW OF THE ORDER DT. 22/04/ 2019 IN ITA NOS. 490 & 491/CHD/2018 FOR THE A.YS 2013-14 & 2014-15 RESPECTIVELY. IT IS WELL SETTLED THAT A MISTAKE APPARENT FROM THE RECORD CAN BE RECTIFIED UNDER SECTION 254 OF TH E ACT, HOWEVER THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. 5.1 ON A SIMILAR ISSUE THE HON'BLE MADHYA PRADESH H IGH COURT IN THE CASE OF CIT VS. KEDIA LEATHER AND LIQUOR LTD. REPORTED IN (2007) 293 ITR 95 HELD AS UNDER : SUB-SECTION (2) OF SECTION 254 CLEARLY EMPOWERS TH E TRIBUNAL AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER TO RECTIFY ANY MISTAKE A PPARENT FROM THE RECORD AND AMEND ANY ORDER PASSED BY IT UNDER SUBSECTION(1) AND TO M AKE SUCH AMENDMENT IF A MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESS ING OFFICER. HOWEVER, THE TRIBUNAL CANNOT REVIEW ITS ORDER. 5.2 A SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE DE LHI HIGH COURT IN THE CASE OF CIT VS. HONDA SIEL POWER PRODUCTS LTD. REPORTED IN (2007) 2 93 ITR 132 WHEREIN IT HAS BEEN HELD AS UNDER: A PLAIN READING OF THE PROVISION INDICATES THAT IN ORDER TO EXERCISE THE POWER VESTED IN IT UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, T HE TRIBUNAL HAS TO ENSURE THAT THE FOLLOWING FACTORS ARE PRESENT: (A) THE APPLICATION IS MADE WITHIN 4 YEARS FROM THE DATE OF THE ORDER SOUGHT TO BE RECTIFIED. (B) THERE IS A MI STAKE APPARENT FROM THE RECORD WHICH IS BROUGHT TO ITS NOTICE BY EITHER THE ASSESSEE OR THE ASSESSING OFFICER. AS REGARDS THE PROCEDURE TO BE FOLLOWED, IF THE AMENDMENT SOUGHT H AS THE EFFECT OF ENHANCING THE ASSESSMENT OR REDUCING A REFUND OR INCREASING THE L IABILITY OF THE ASSESSEE, THE TRIBUNAL HAS TO GIVE PRIOR NOTICE TO THE ASSESSEE AND ALSO ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS PLAIN THAT THE POWER TO RECTI FY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PREREQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD) , BY ITS VERY NATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED OTHERWISE, WHAT CANNOT BE DONE DIRECTLY BY SEEKING A REVIEW OF AN ORDER CAN. BE ACHIEVED INDIRECTLY, BY SEEKING A RECTIFICATION OF THAT ORDER. THIS IS EVEN MORE SIGNIFICANT IN THE LIGHT OF THE FACT THAT UNDER THE ACT THERE IS N O EXPRESS POWER GIVEN TO THE TRIBUNAL TO REVIEW. 6 5.3 SIMILARLY IN THE CASE OF CIT VS. HINDUSTAN COCA COLA BEVERAGES P. LTD. REPORTED IN (2007) 293 ITR 163(DELHI), THE HON'BLE DELHI HIGH COURT HE LD AS UNDER: UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVER, IT IS PLAIN THAT TH E POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIB LE THAT THE PREREQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FRO M THE RECORD), BY ITS VERY NATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE REC ALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED. 6. WE THEREFORE BY KEEPING IN VIEW THE RATIO LAID D OWN IN THE AFORESAID REFERRED TO CASES DO NOT SEE ANY MERIT IN THESE MISCELLANEOUS APPLICA TIONS OF THE DEPARTMENT, ACCORDINGLY THE SAME ARE DISMISSED. RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL, W E FIND NO MERIT IN THE PRESENT APPLICATIONS OF THE REVENUE AND THE SAME ARE ACCORDINGLY DISMISS ED. IN THE RESULT, BOTH THE M.AS FILED BY THE DEPARTMEN T ARE HEREBY DISMISSED. SO RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO O RDER DT. 14/01/2020 IN THE CASE OF DCIT VS. SH. SADHU RAM ROPAL(SUPRA) WE DO NOT SEE ANY MERIT IN THIS MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT, ACCO RDINGLY THE SAME IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE D EPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 19/11/2020 . SD/- SD/- '# $ .., (SANJAY GARG ) ( N.K. SAI NI) % &'/ JUDICIAL MEMBER / VICE PRESIDENT AG DATE: 19/11/2020 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE