Amar Singh Saharan, Churu V. ITO, Ward-2, Churu

MA 2/JODH/2022

AI Insights

The case involves Shri Amar Singh Saharan, the appellant, who filed a Miscellaneous Application (M.A. No. 02/Jodh/2022) against the order of the Income Tax Appellate Tribunal dated 7th September 2021. The appellant contended that the Tribunal had failed to address a significant legal ground concerning the non-cross-examination of a deponent, which was crucial to the case's outcome. This legal oversight was argued to be a mistake apparent from the record, warranting a revision of the Tribunal's earlier decision. The Tribunal acknowledged the oversight and recalled the previous order, agreeing that the non-adjudication of the legal ground went to the root of the matter and could potentially alter the decision in favor of the appellant.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 112923 (ITAT-JODHPUR)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-01-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 30-01-2022
• Other Referred Cases: Shri Ashok Kumar Banthia vs. DCIT (ITA No.297/Jodh/2019)
• Laws Referred To: Mehta Parekh & Co. Vs. CIT, 30 ITR 181
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 M A No.02/Jodh/2022 Shri Amar Singh Saharan IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND Dr. S. SEETHALAKSHMI, JUDICIAL MEMBER M.A. No. 2/Jodh/2022 (Arising out of ITA No. 83/Jodh/2020 (ASSESSMENT YEAR- 2013-14 ) Shri Amar Singh Saharan S/o Shri Chimna Ram Dhani-Asha, Tehsil-Taranagar, Churu Vs ITO Ward-2 Churu (Appellant) (Respondent) PAN NO. DRBPS 4493 E Assessee By Shri Suresh Ojha, Adv. Revenue By Ms. Nidhi Nair, JCIT-DR Date of hearing 17/01/2023 Date of Pronouncement 17 /01/2023 O R D E R PER: B. R. BASKARAN, AM The assessee has filed this Misc. Application submitting that there are mistakes apparent from record in the order dated 7-09-2021 passed the ITAT in ITA No. 83/Jodh/2020 relating to AY 2013-14. 2 M A No.02/Jodh/2022 Shri Amar Singh Saharan 2. The Ld. Counsel appearing on behalf of the assessee submitted that the assessee had raised 07 grounds in total and the Tribunal has combined all the 07 grounds and adjudicated upon the issue of addition on merits and dismissed the appeal of the assessee. He submitted that Ground No. 2 raised by the assessee is a legal ground, wherein it is contended that the AO has failed to cross examine the deponent in the said affidavit submitted by him and the said failure would result into acceptance of the contents of the affidavit as held by the Hon'ble Supreme Court in the case of Mehta Parekh & Co. Vs. CIT, 30 ITR 181. He further submitted that this ground, if decided in favour of the assessee, would change the decision rendered by the Tribunal, i.e., the appeal of the assessee shall be allowed. Accordingly, he submitted that non-adjudication of this legal ground, which goes to the root of the matter, is a mistake apparent from record. 3. The Ld. AR further submitted that Tribunal has disposed of the appeal of the assessee herein on 7 th Sept. 2021. He submitted that the Tribunal had disposed of another appeal filed by Shri Ashok Kumar Banthia vs. DCIT (ITA No.297/Jodh/2019) on 6 th Sept. 2021 i.e. one day earlier to the impugned Tribunal Order. In the said case also, identical legal ground was urged by the said assessee and the Tribunal had accepted the contentions of the assessee with regard to the legal ground and thus allowed the appeal of the assessee. The decision so rendered by the Tribunal in the case of Shri Ashok Kumar Banthia vs. DCIT (supra) would show that adjudication of the legal ground urged by the 3 M A No.02/Jodh/2022 Shri Amar Singh Saharan assessee is essential in the instant case of the assessee. Accordingly, he submitted that the mistake apparent from record pointed out above needs to be rectified. 3. We heard the Ld. DR, who submitted that the Tribunal has rendered its decision by combining all the grounds and it is one of the methods of adjudicating the appeal usually followed by the Tribunal. Accordingly, the Ld. DR submitted that there is no mistake apparent from record in the order passed by the Tribunal. 4. We heard the rival contentions and perused the record. As stated earlier, the Tribunal has adjudicated the appeal of the assessee on merits only and it was decided against the assessee. However, in Ground No. 2, the assessee has raised a legal ground. It is submitted that an identical legal ground raised by another assessee named Ashok Kumar Banthia vs. DCIT (supra) has been adjudicated by the Tribunal in his hands and same has been decided in favour of the assessee, which resulted in allowing the appeal of the assessee. It is the submission of the Ld. AR of the assessee that non-adjudication upon the legal ground urged in Ground No. 2 constitutes mistake apparent from record, as it goes to the root of the matter. We agree with the contentions of the Ld. AR. Accordingly, we hold that non-adjudication of the legal ground no. 2 is a mistake apparent from record as it goes to the root of the matter. Accordingly, we are constrained to recall the impugned order dated 7 th Sept. 2021 passed by 4 M A No.02/Jodh/2022 Shri Amar Singh Saharan the Tribunal in the hands of the assessee in ITA No. 83/Jodh/2020. We direct the registry to post the appeal for hearing in normal course under intimation to the parties. 5. In the result, the Misc. Application filed by the assessee is allowed. Order pronounced in the open Court on 17 /01/2023 Sd/- Sd/- (Dr. S. SEETHALAKSHMI) (B. R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 17 /01/2023 *Mishra Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) Asstt. Registrar 5. The DR 6. Guard File Jodhpur Bench