Vibrant Foods P.Ltd, New Delhi V. ITO, Ward-17(2), New Delhi

MA 200/DEL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1045 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 25-08-2022
• Assessment Year: 2007-2008
• Appeal Filed On: 28-10-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside
• Section: 143(2); 254(2)

Judgement Text

MA. No. 200/Del/2021 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F” NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER Misc. App. No. 200/Del/2021 [ in आ.अ.सं . I.T.A No. 5131/Del/2018 ] ( िनधाᭅरण वषᭅ/Assessment Year: 2007-08 ) M/s. Vibrant Foods Pvt. Ltd., C/o. M/s. G. S. Kohli & Co., CAs.; R-739 (Basement), New Rajinder Nagar, New Delhi – 110 060. बनाम Vs. Income Tax Officer, Ward : 17 (2) New Delhi. PAN No. AACCV1355J अपीलाथᱮ/ Appellant ᮧ᭜यथᱮ/ Respondent िनधाᭅᳯरतीकᳱओरसे / Assessee by : Shri G. S. Kohli, Advocate; राज᭭वकᳱओरसे / Department by : Shri Om Prakash, Sr. D. R.; सुनवाईकᳱतारीख/ Date of hearing : 26.08.2022 उ᳃ोषणाकᳱतारीख/Pronouncement on : 12.10.2022 आदेश / O R D E R PER C. N. PRASAD, J.M. 1. In this Misc. application the assessee stated as under:- MA. No. 200/Del/2021 2 “The captioned appeal has been decided by giving its date of order dated 22/09/2021, however, it was taken from lTAT website on 25/10/2021 The captioned appeal has been statistically allowed by giving the directions "to decide afresh after entertaining all the additional evidences sought to be led by the assessee vide application dated 19/04/2011 under Rule 46A by pro~idillg opportunity of being heard to the assessee." While during the course of its hearing the matter was ended only on the first ground and no other argument was given during the course of its hearing. We may reproduce the first ground of appeal "The assessment as well as appellate orders are unlawful, illegal and are against the natural law of justice." It was fully explained during the course of assessment proceedings that the Section 143(2) strictly stipulates "Provided that no notice under this sub section shall he served "pan the assessee ofter the expiry of 6 months from the end of the financial year in which the return is furnished." While in the instant case as it is apparent from the assessment Dreier it was issued on 20/07/2009. It could have issued by 30/09/2008. It will not be out of place to state. here that even from 0 R the only reply was that she is not in possession of Income-tax Act. Then on her such words your honour have gone through the Act and admitted such submission. The undersigned the A.R. specifically asked is any submissi.on required on merits your honour closed the chapter by saying that when there is incurable omission on the part of the reyenue nothing is required on merits.” 2. The ld. Counsel submits that the Tribunal without going into the legality of the assessment order passed it had set aside the appeal to the file of the Ld. CIT (Appeals) to decide afresh after entertaining all the additional evidences sought. The ld. Counsel submits that it was argued before the Tribunal that notice under section 143(2) of the MA. No. 200/Del/2021 3 Act was served beyond the time stipulated and the assessment order is a nullity in the eyes of law and this was accepted by the Tribunal during hearing and did not go into the other grounds while hearing the appeal. However, while passing the order the matter was restored to the file of the ld. CIT (Appeals) for adjudicating the issues on admitting the additional evidences which is a mistake apparent on record and, therefore, requested that the order of the Tribunal be recalled. 3. The ld. DR submits that there is no mistake apparent from record in the order passed by the Tribunal and, therefore, the Misc. application deserves to be rejected. 4. Heard rival submissions perused the orders of the Tribunal. The Tribunal on hearing both the parties passed an elaborate order restoring the matter back to the file of the ld. CIT (Appeals) to decide afresh after admitting the additional evidences. Therefore it cannot be said there is an apparent mistake in the order of the Tribunal. On going through the Misc. application we find that the contentions raised in the Misc. application suggest to recall the order of the Tribunal and re-view its order on the conscious decision taken on merits by the Tribunal. Review of its own order by the Tribunal is beyond its scope and is not permissible under the provisions of section 254(2) of the Act. 5. Hon’ble Apex Court in the case of CIT Vs. Reliance Telecom Ltd. [(2021) 440 ITR 1 (SC)] held as under:- “3.1 We have considered the order dated 18.11.2016 passed by the ITAT allowing the miscellaneous application in MA. No. 200/Del/2021 4 exercise of powers under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013. 3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, 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 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its MA. No. 200/Del/2021 5 earlier order dated 06.09.2013 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 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake parent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As MA. No. 200/Del/2021 6 observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case.” 6. As could be seen from the above the Apex court held that the Appellate Tribunal is not required to re-visit its earlier order and to go into details on merits. It was held that the powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. It was also further held by the Apex court that even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers the Tribunal may pass order recalling its earlier order which is an erroneous order cannot be accepted. The Apex court further held that if the 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 High Court. In view of the above we hold that there is no mistake apparent on record in the order passed by the Tribunal in ITA. No. 3578/Del/2013 dated 10.03.2017 and thus the Misc. application filed by the assessee is rejected. 7. In the result, the Misc. application is dismissed. Order pronounced in the open court on : 12/10/2022 Sd/- Sd/- (PRADIP KUMAR KEDIA) ( C. N. PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 12/10/2022. *MEHTA* MA. No. 200/Del/2021 7 Copy forwarded to : 1. Applicant; 2. Respondent; 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi. Date of dictation 03.10.2022 Date on which the typed draft is placed before the dictating member 07.10.2022 Date on which the typed draft is placed before the other member 12.10.2022 Date on which the approved draft comes to the Sr. PS/ PS 12.10.2022 Date on which the fair order is placed before the dictating member for pronouncement 12.10.2022 Date on which the fair order comes back to the Sr. PS/ PS 12.10.2022 Date on which the final order is uploaded on the website of ITAT 12.10.2022 Date on which the file goes to the Bench Clerk 12.10.2022 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the order