BIPINCHANDRA CHIMANLAL DOSHI, Himatnagar V. THE DCIT CIR-1(1), Gandhinagar

MA 215/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2249 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 19-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K C THAKER
• Keywords: Rectification of order; Period of limitation; Question of law; Block assessment; Time period of passing order; Set aside
• Section: 260A; 254(2); 13; 158BD

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 215/AHD/2017 ( IN I.T(SS).A. NO. 18/AHD/2000) ( / ASSESSMENT YEAR : BLOCK PERIOD 01-04-1986 TO 31-03- 1996 AND 01-04-1996 TO 01-08-1996) SHRI BIPINCHANDRA CHIMANLAL DOSHI C/O. BEENA MEDICAL STORES, OPP. CIVIL HOSPITAL, HIMATNAGAR, DIST. SABARKANTHA / VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 1(1), GANDHINAGAR ./ ./ PAN/GIR NO. : AAZPD3602L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI K. C. THAKER, A.R. / RESPONDENT BY : SHRI DILEEP KUMAR, SR.D.R. / DATE OF HEARING 16/10/2020 !'# / DATE OF PRONOUNCEMENT 02/ 12 /2020 $%/ O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION (MA) HAS BE EN FILED AT THE INSTANCE OF ASSESSEE UNDER S.254(2) OF THE ACT ON 19.07.2017 SEEKING RECALL OF EARLIER ORDER OF THE TRIBUNAL IN IT(SS)A NO. 18/AHD/2000 DATED 15.05.2009 WHEREIN THE APPEAL OF THE ASSESSEE WAS PARTLY ADJUDICATED BY ITAT LIMITING ITSELF ON THE P OINT OF JURISDICTION M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 2 - QUESTIONED BY THE ASSESSEE WITH REFERENCE TO SECTIO N 158BD OF THE ACT. IT WAS POINTED OUT IN THE PRESENT MA THAT THE GROUNDS CONCERNING OBJECTIONS ON MERITS OF ADDITIONS WERE NOT ADJUDICA TED BY THE TRIBUNAL AT ALL CAUSING GRAVE PREJUDICE TO THE ASSESSEE. A PRAYER WAS THUS MADE TO SUPPLEMENT/ MODIFY THE ORDER OF TRIBUNAL FOR ADJ UDICATION OF GROUNDS NOT DISPOSED OFF IN THE PREVIOUS ORDER REND ERED BY THE TRIBUNAL DATED 15-05-2009 2. BRIEFLY STATED, BY WAY TRIBUNAL ORDER IN IT(SS)A NO. 18/AHD/2000 DATED 15.05.2009, THE BLOCK ASSESSMENT UNDER APPEAL WAS ANNULLED BY THE ITAT ON THE GROUND THAT ASSESSMENT FRAMED IN THE CASE OF THE ASSESSEE IS INVALID ON THE CONTOURS OF SECTI ON 158BD OF THE ACT AND CONSEQUENTLY, THE ASSESSMENT PROCEEDINGS UNDER S.158BC OF THE ACT IN PURSUANCE OF JURISDICTION WRONGLY ACQUIRED U NDER S.158BD OF THE ACT WAS FOUND TO BE NONEST AND VOID AB INITIO AND THUS BAD IN LAW. THE ITAT THUS ANNULLED THE BLOCK ASSESSMENT ITSELF LEAVING GROUNDS OF APPEAL ON MERITS OF ADDITIONS UN-ADJUDICATED IN THE FOLLOWING TERMS AS PER PARA 8 OF ITS ORDER REPRODUCED BELOW: SINCE, WE HAVE ALREADY ANNULLED THE ASSESSMENT, TH EREFORE, THE ADJUDICATION OF OTHER GROUNDS TAKEN BY THE ASSESSEE WILL BE MERELY ACADEMIC AND ACCORDINGLY DO NOT PROCEED WITH OTHER GROUNDS. 3. ON CHALLENGE BY REVENUE, THE HONBLE HIGH COURT OF GUJARAT ON 27.02.2017 REVERSED THE ACTION OF ITAT AND QUASHED AND SET ASIDE THE TRIBUNAL ORDER DATED 15.05.2009. THE CONFERMENT OF JURISDICTION ON REVENUE AUTHORITIES WAS FOUND VALID BY THE HONBLE GUJARAT HIGH COURT. BY VIRTUE OF THIS JUDGMENT, THE LEGITIMACY O F BLOCK ASSESSMENT WAS THUS PER SE RESTORED. A SPECIAL LEAVE PETITION (SLP) AGAINST THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT WAS FILE D BY THE ASSESSEE. THE SLP WAS HOWEVER DISMISSED BY THE HONBLE SUPREM E COURT ON 14.07.2017. RESULTANTLY, A SOLITARY QUESTION OF LAW ARISING FROM THE ORDER OF TRIBUNAL IN RELATION TO VALIDITY OF ACTION OF AO IN CARRYING OUT ASSESSMENT UNDER S.158BC OF THE ACT PURSUANT TO JURISDICTION M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 3 - EXERCISED UNDER S.158BD OF THE ACT WAS ANSWERED IN FAVOUR OF REVENUE AND AGAINST THE ASSESSEE BY THE HONBLE GUJ ARAT HIGH COURT. 4. IN THE LIGHT OF THESE BROAD FACTS, A MISCELLANEO US APPLICATION WAS FILED BY THE ASSESSEE ON 19.07.2017 I.E. WITHIN A PERIOD OF ABOUT 5 MONTHS AFTER THE JUDGMENT WAS DELIVERED ON 27.02.20 17 BY THE JURISDICTION HIGH COURT WITH REFERENCE TO LEGAL POI NT BUT BELATEDLY AFTER 4 YEARS WHEN SEEN WITH REFERENCE TO THE DATE OF THE APPELLATE ORDER PASSED BY THE TRIBUNAL WHICH IS SOUGHT TO BE RECTIFIED. THE ASSESSEE, IN ITS MA, SOUGHT RECALL OF THE ORDER OF ITAT FOR ADJUDICATION OF UNDECIDED GROUNDS. 5. IN THIS BACKDROP, IT IS ESSENTIALLY THE CASE OF THE ASSESSEE THAT HAVING REGARD TO A VERY RARE AND PECULIAR FACTS AND CIRCUMSTANCES INVOLVED AS NARRATED HEREINABOVE, THE MISCELLANEOUS APPLICATION SEEKING RECALL OF THE TRIBUNALS ORDER FOR ADJUDICA TION OF GROUNDS REMAINING TOTALLY UNDECIDED BY THE TRIBUNAL CANNOT BE TERMED AS TIME BARRED QUA SECTION 254(2) OF THE ACT, NOTWITHSTANDING THE PRAY ER FOR RECTIFICATION AFTER STIPULATED TIME LIMIT OF FOUR Y EARS WHEN RECKONED FROM THE DATE OF TRIBUNALS ORDER. IT IS THE CASE O F THE ASSESSEE THAT THE ASSESSEE WAS NOT PREVIOUSLY AGGRIEVED BY THE OR DER OF ITAT WHICH DECIDED THE JURISDICTIONAL ASPECTS IN HIS FAVOUR AN D QUASHED THE ASSESSMENT ORDER ITSELF. THE GRIEVANCE AROSE TO THE ASSESSEE ONLY UPON REVERSAL OF ORDER OF ITAT AND RESTORATION OF JURISD ICTION BY HONBLE GUJARAT HIGH COURT. AS POINTED OUT, THE ASSESSEE PR OMPTLY FILED THE MA BEFORE ITAT WITHIN THE AMENDED PERIOD OF 6 MONTH S FROM THE DATE OF CAUSE OF ACTION ARISING TO THE ASSESSEE. 6. WHEN THE MISCELLANEOUS APPLICATION SEEKING RESTO RATION OF SUBSTANTIVE APPEAL OF THE ASSESSEE WAS PLACED FOR H EARING BEFORE THE TRIBUNAL FOR MODIFICATION OF EARLIER ORDER, THE LEA RNED AR FOR THE ASSESSEE SUBMITTED AT THE OUTSET THAT THE TRIBUNAL HAD ERRONEOUSLY DELIVERED JUDGMENT ON LEGAL POINT OF JURISDICTION A LONE WHEREBY THE M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 4 - BLOCK ASSESSMENT WAS RENDERED A NULLITY. HOWEVER, W HILE DISCHARGING ITS JUDICIAL FUNCTION, THE TRIBUNAL HAS OMITTED TO CONSIDER OTHER GROUNDS SIMULTANEOUSLY URGED BY THE ASSESSEE ON THE CORRECTNESS OF ADDITIONS/DISALLOWANCE ON MERITS AS MADE IN THE ASS ESSMENT FRAMED IN PURSUANCE OF BLOCK ASSESSMENT MADE UNDER S.158BC R. W.S. 158BD OF THE ACT. IT WAS REITERATED ON BEHALF OF THE ASSESS EE THAT THE TRIBUNAL, IN ITS ORDER, WHICH IS SUBJECT MATTER OF PRESENT MI SCELLANEOUS APPLICATION, HAD AGREED WITH THE CONTENTION OF THE ASSESSEE ON LEGAL GROUND AND QUASHED THE ASSESSMENT FRAMED UNDER S.15 8BC R.W.S. 158BD AT THE THRESHOLD AND THUS SUO MOTU RESTRAINED ITSELF FROM ADJUDICATING OTHER GROUNDS RAISED. IT WAS THUS POIN TED OUT THAT THE TRIBUNAL OWE SOLE RESPONSIBILITY FOR OMISSION TO AD JUDICATE ALL RELEVANT GROUNDS PRESENTED BEFORE IT AND THE MISTAK ES COMMITTED BY THE TRIBUNAL IN NOT ADJUDICATING CERTAIN GROUNDS CA NNOT BE ATTRIBUTED TO THE ASSESSEE. 7. TO PROP UP HIS CASE FOR MAINTAINABILITY OF MA FI LED BEYOND LIMITATION PERIOD OF 4 YEARS IN SUCH PECULIAR CIRCU MSTANCES TOWARDS NON ADJUDICATION OF GROUNDS ON MERITS ALL TOGETHER, THE LEARNED AR FOR THE ASSESSEE PLACED RELIANCE UPON THE DECISION OF H ONBLE SUPREME COURT IN S. NAGRAJ VS. STATE OF KARNATAKA (1993) SUPP 4 SCC 595 TO PROFESS THAT JUSTICE IS A VIRTUE WHICH TRANSCENDS A LL BARRIERS. NEITHER THE RULE OF PROCEDURE NOR THE TECHNICALITIES OF LAW CAN STAND IN ITS WAY. THE MISCARRIAGE OF JUSTICE MUST NOT BE PERPET RATED UPON THE ASSESSEE FOR NO FAULT OF HIS. THE TRIBUNAL SHOULD N OT ALLOW THE ASSESSEE TO SUFFER FOR THE MISTAKE COMMITTED BY THE TRIBUNAL IN NOT DISPOSING OF THE GROUNDS DULY TAKEN BY THE ASSESSEE IN HIS SUBSTANTIVE APPEAL. IT WAS SUBMITTED THAT NOTWITHSTANDING STATU TORY FETTERS, THE TRIBUNAL IS BESTOWED WITH INHERENT POWER TO RECTIFY THE MISTAKE COMMITTED BY IT IN THE PECULIAR FACTS OF A GIVEN CA SE. IT WAS CONTENDED THAT AN ATTEMPT SHOULD BE MADE TO ADVANCE THE CAUSE OF JUSTICE. THE LEARNED AR FOR THE ASSESSEE MADE REFERENCE TO SEVER AL JUDICIAL PRONOUNCEMENTS UNDERLINING THE INHERENT POWER OF TH E TRIBUNAL TO M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 5 - GRANT SUBSTANTIAL JUSTICE IN SUPERSESSION TO TECHNI CAL CONSIDERATIONS. WE SHALL DEAL WITH THESE PRECEDENTS IN THE LATER PA RAGRAPHS TO AVOID REPETITIONS. 8. IN THE ONGOING DELIBERATION ON ADMISSIBILITY OF RECTIFICATION APPLICATION UNDER S.254(2) OF THE ACT BEYOND LIMITA TION PERIOD, THE LEARNED ADVOCATE MR. MANISH J. SHAH SOUGHT LEAVE OF THE TRIBUNAL TO LEND SUPPORTIVE HAND TO THE ASSESSEE ON DELINEATION OF THE POINT IN ISSUE, WHICH WAS DULY GRANTED. IT WAS SUBMITTED BY MR. SHAH THAT RIGHTS OF THE ASSESSEE WERE SEVERELY AFFECTED BY TH E NON-ADJUDICATION OF GROUNDS BY THE TRIBUNAL DULY TAKEN ON BEHALF OF THE ASSESSEE. IT WAS CONTENDED THAT THE WELL-KNOWN LEGAL MAXIM AN ACT OF THE COURT SHALL PREJUDICE NO MAN MUST SERVE AS GUIDING PRINCIPLE TO THE TRIBUNAL AN D THE REMEDY AGAINST THE ORDER SHOULD NOT BE LOST BY LIMITATION FOR NON- DISPOSAL OF SUBSTANTIVE GROUNDS ON ASPECTS OF MERIT S OF ADDITIONS/ DISALLOWANCES. THE LEARNED COUNSEL REFERRED TO THE DECISION OF HONBLE GUJARAT HIGH COURT IN PETERPLAST SYNTHETICS (P.) LTD. VS. ACIT 364 ITR 16 (GUJ) TO BUTTRESS HIS CASE. 9. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T THE PROVISION OF SECTION 254(2) OF THE ACT IS MEANT TO PROVIDE TH E TRIBUNAL WITH A MECHANISM TO RECTIFY MISTAKES APPARENT FROM RECORD WITHIN THE STIPULATED TIME PERIOD. THE LIMITATION PERIOD IS ME ANT TO GIVE QUIETUS TO THE LITIGATION ON LAPSE OF TIME PERIOD. THE PROP OSED RECTIFICATION THUS CANNOT BE CARRIED OUT OWING TO BAR OF LIMITATI ON, EVEN IF, THE MISTAKE COMMITTED BY THE TRIBUNAL IS APPARENT FROM RECORD. 10. WE HAVE GIVEN OUR UTMOST CONSIDERATION TO THE F ACTS AND PECULIAR CIRCUMSTANCES OF THE PRESENT CASE, THE MATERIALS TO WHICH OUR ATTENTION WAS INVITED AND THE RIVAL SUBMISSIONS. THE QUESTION POSED BEFORE US IS WHETHER THE TRIBUNAL IS EMPOWERED TO CONDONE THE DE LAY IN PECULIAR CIRCUMSTANCES WHERE A GRAVE PREJUDICE HAS CAUSED TO THE ASSESSEE FOR OMISSION OF TRIBUNAL TO ADJUDICATE GROUNDS ON MERIT S AND RESTRAINING M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 6 - ITSELF TO LEGAL POINT WHICH WAS LATER REVERSED BY T HE SUPERIOR WISDOM OF JURISDICTIONAL HIGH COURT. 11. IT IS THE CASE OF THE ASSESSEE THAT THE PRESENT APPLICATION IS NOT PLACED FOR RECTIFICATION OF ANY OBSERVATIONS OF ITA T IN THE PREVIOUS ORDER PER SE . IT WAS CONTENDED THAT THE OBJECTIVE OF THE APPLIC ATION IS TO ENABLE THE TRIBUNAL TO PASS A COMPLETE ORDER BY ADJUDICATION OF ALL GROUNDS RAISED BEFORE IT WITHOUT ANY RECTIFICATION OF MISTAKE IN EXISTING ORDER ON LEGAL POINT. WHAT IS BEING SOUGHT IS SUPPLEMENTATION OF THE EXISTING ORDER WITH FINDINGS ON GROUNDS NOT ADJUDICATED SO FAR. IT IS THE CASE OF THE ASSESSEE THAT HE HAS FILED A RECTIFICATION APPLICATION PROMPTLY SEEKING CURE FOR MISTAKE COMMI TTED BY TRIBUNAL AS SOON AS IT LEARNT OF PREJUDICE TO ASSESSEE RESUR FACED AND REINSTATED ON ADVERSE DECISION OF THE HONBLE GUJARAT HIGH COU T ON THE POINT OF JURISDICTION. IT WAS EMPHASIZED THAT SINCE THE LEGA L POINT DECIDED IN FAVOUR OF THE ASSESSEE BY TRIBUNAL EARLIER HAD RESU LTED IN TOTAL OBLITERATION OF ADDITIONS/ DISALLOWNCES, THERE WAS NO PERCEPTIBLE REASON FOR THE ASSESSEE TO INDULGE IN COST PROHIBIT IVE PROTRACTED LITIGATION FOR ADJUDICATION OF GROUNDS WHICH WERE R ENDERED INFRUCTUOUS AT THAT POINT OF TIME. 12. AT THIS JUNCTURE, IT MAY BE PERTINENT TO NOTICE THAT THE ASSESSEE HEREIN IS AN ORDINARY INDIVIDUAL AND IT IS NOT PRAC TICAL TO EXPECT HIM TO BE WELL VERSED WITH NUANCES OF COMPLEX LAWS. WHAT I S TO BE WEIGHED IS WHETHER THE ASSESSEE IN SUCH CASE IS REASONABLY DIL IGENT OR GUILTY OF GROSS NEGLIGENCE. THE MA IN THE INSTANT CASE WAS FI LED ON REVERSAL OF DECISION OF TRIBUNAL ON LEGAL POINT WHEREBY ITS CON CLUSION ON LACK OF JURISDICTION DID NOT HOLD FIELD ANY LONGER. THE JUD GMENT OF THE HONBLE HIGH COURT WAS RENDERED AFTER THE LAPSE OF 4 YEARS TIME WITH REFERENCE TO ITAT ORDER GIVING A BONAFIDE CAUSE OF ACTION TO THE ASSESSEE. IN SHORT, THE MA WAS FILED BEYOND THE LIM ITATION PERIOD PROVIDED UNDER S.254(2) OF THE ACT OWING TO VERDICT OF THE HIGH COURT AFTER 4 YEARS BUT WAS FILED SWIFTLY WITHIN AN REVIS ED LIMITATION PERIOD M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 7 - OF SIX MONTHS FROM THE DATE OF JUDGMENT OF THE HON BLE GUJARAT HIGH COURT. IT IS THE PLEA OF THE ASSESSEE THAT OWING TO JURISDICTIONAL GROUND DECIDED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON BLE GUJARAT HIGH COURT, A PREJUDICE CAME TO THE FORE OWING TO AN INA PT ACT OF TRIBUNAL TOWARDS NON DISPOSAL OF GROUNDS ON MERITS. THE DECI SION OF THE HONBLE HIGH COURT AND DISMISSAL OF SLP THERE AGAIN ST DID GIVE RISE TO A FRESH CAUSE OF ACTION FOR ADJUDICATION OF GROUNDS ON MERIT REMAINING UNTOUCHED & UNDECIDED THUS FAR BY TRIBUNAL IN THE S UBSTANTIVE APPEAL. 13. ADMITTEDLY, LIMITATION PERIOD WHEN RECKONED FRO M THE DATE OF TRIBUNAL ORDER STANDS TIME BARRED. THE ASSESSEE, H OWEVER, INSISTS THAT STARTING POINT OF LIMITATION FOR THE PURPOSE OF REC TIFICATION OF TRIBUNAL ORDER SHOULD BE RECKONED FROM THE DATE WHEN A BONAF IDE CAUSE OF ACTION AROSE NON-DISPOSAL OF GROUNDS OF SUBSTANTIAL NATURE REGARDLESS OF THE DATE OF ORDER OF THE TRIBUNAL. 14. AS NOTED, THE FACTS OF CASE CONFRONTS A PECULIA R AND RARE SITUATION INDEED. IN THE INSTANT CASE, THE DOCTRINE OF MERGER OF THE ORDER OF ITAT WITH THAT OF HONBLE HIGH COURT WOULD APPLY ONLY TO THE EXTENT, THE SUBJECT MATTER OF THE ORDER OF ITAT AND THAT OF HONBLE HIGH COURT IS THE SAME. THE ORDER OF ITAT IN RESPEC T OF LEGAL POINT THUS STANDS MERGED WITH THE APPELLATE ORDER OF THE HONBLE HIGH COURT PASSED UNDER S. 260A AND AS A CONSEQUENCE, NO RECTI FICATION OF THE EXISTING ORDER OF THE TRIBUNAL RENDERED ONLY ON POI NT OF JURISDICTION IS PERMISSIBLE. HOWEVER, THE DOCTRINE OF MERGER IS NOT A DOCTRINE OF UNIVERSAL OR UNLIMITED APPLICATION. IT WILL DEPEND ON THE NATURE OF JURISDICTION EXERCISED BY THE SUPERIOR FORUM AND TH E CONTENT OR SUBJECT MATTER OF CHALLENGE AS EXTENSIVELY DEALT WITH BY HO NBLE SUPREME COURT IN THE CASE OF KUNHAYAMMED VS. STATE OF KERALA 2001 (129) E.L.T. 11 (S.C.). THUS, DOCTRINE OF MERGER WOULD NOT EXTEND TO ISSUES ON MERITS REMAINING UNDECIDED BY THE TRIBUNAL OR BY THE HONB LE HIGH COURT. HENCE, IN OUR HUMBLE VIEW, THERE APPEARS TO BE NO B AR EXERCISING ITS INHERENT AND STATUTORY POWERS OF TRIBUNAL IN REVISI TING ITS EARLIER M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 8 - ACTION WITH A LIMITED PURPOSE OF ADJUDICATION OF G ROUNDS WHICH REMAINED UNDECIDED. 15. APART FROM WHAT IS NOTED ABOVE, IT IS THE COMMO NLY KNOWN PRINCIPLE THAT EXPRESS GRANT OF STATUTORY POWER CAR RIES WITH IT ALL SUCH AUTHORITY TO USE REASONABLE MEANS TO MAKE SUCH POWE R EFFECTIVE. THE POWERS CONFERRED BY SECTION 254 OF THE ACT ON THE APPELLATE TRIBUNAL FOR DISPOSAL OF APPEALS BEFORE IT IS OF WIDEST POSS IBLE AMPLITUDE AND CARRIES WITH IT, BY NECESSARY IMPLICATION, ALL POWE RS AND DUTIES INCIDENTAL AND NECESSARY TO MAKE THE EXERCISE OF IT S FUNCTIONS FULLY EFFECTIVE. WHERE THE ACT CONFERS JURISDICTION, IMP LIEDLY, ALSO GRANTS THE POWER OF DOING ALL SUCH ACTS AS ARE ESSENTIALLY NECESSARY TO ITS EXECUTION. THE AFORESAID LEGAL PRINCIPLE HAS BEEN AFFIRMED AND APPLIED AS REGARDS POWER OF THE TRIBUNAL UNDER S.25 4 OF THE ACT WHILE ADJUDICATING ON THE POWER OF THE TRIBUNAL TO GRANT STAY BY THE HONBLE SUPREME COURT IN ITO VS. MOHAMMED KUNHI (1969) 71 ITR 815 (SC) . AS LOGICALLY FLOWS THEREFROM, POWER TO CONDONE DELA Y IS INCIDENTAL AND NECESSARY TO RENDER, DISPOSE AND TO FULLY AND TRUTH FULLY DISCHARGE ITS DUTIES AND FUNCTIONS. SIGNIFICANTLY, IN THE INSTAN T CASE, IT IS THE TRIBUNAL WHICH HAS COMMITTED ERROR IN RESTRICTING I TSELF TO LEGAL GROUND AND IN NOT ADDRESSING ITSELF ON CERTAIN OTHE R GROUNDS OF SUBSTANTIAL NATURE WITHOUT ANY FAULT ATTRIBUTABLE T O THE ASSESSEE. IN SUCH A SITUATION, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED OVER THE TECHNICAL CONSIDERATIONS PITTED AGAINST IT BY WAY OF LIMITATION, TO SHUN AN APPARENT MISCARRIAGE OF JUS TICE. NOTICEABLY, RECTIFICATION APPLICATION IN THE INSTANT CASE HAS B EEN FILED PROMPTLY WITH REFERENCE TO THE JUDGMENT OF HONBLE GUJARAT H IGH COURT AND THUS THERE CAN BE NO PRESUMPTION THAT DELAY IS OCCA SIONED DELIBERATELY IN THE INSTANT CASE. NO CULPABLE NEGLIZANCE OR MALA FIDE CAN BE PRESUMED IN THE PECULIAR FACTS. IT IS AN ADMITTED P OSITION THAT MISTAKE IS APPARENT AND HAS BEEN COMMITTED BY THE TRIBUNAL. IT IS MANIFEST THAT THE DENIAL TO RECTIFY THE OWN MISTAKE OF ITAT ON TH E GROUNDS OF LIMITATION WOULD CAUSE GRAVE MISCARRIAGE OF JUSTICE . THUS, BEFITTINGLY, M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 9 - IT IS THE OBLIGATION OF THE TRIBUNAL TO SET RIGHT T HE INJUSTICE BY RECALLING EARLIER ORDER WITH A VIEW TO PASS ORDER O N REMAINING POINTS. 16. THIS APART, THERE CAN BE ANOTHER PLAUSIBLE SCHO OL OF THOUGHT TO CONDONE THE DELAY. SECTION 253(5) OF THE ACT SPECI FICALLY REFERS TO THE JUDICIAL POWER OF THE TRIBUNAL TO CONDONE THE DELAY AND ADMIT THE APPEAL OR CROSS OBJECTION ETC. FOR ADJUDICATION. HO WEVER, SECTION 254(2) OF THE ACT DOES NOT EXPRESSLY REFER TO SUCH JUDICIAL POWER BUT SECTION 254(2) OF THE ACT IS NOT WATER-TIGHT. SECT ION 5 OF THE LIMITATION ACT, 1963 REFERS TO THE POWERS OF THE CO URTS AND TRIBUNAL TO CONDONE THE DELAY IN APPROPRIATE CIRCUMSTANCES. THE INCOME TAX ACT, 1961 ITSELF PROVIDES THAT THE PROVISIONS OF TH E CIVIL PROCEDURE CODE RELATING TO APPEALS, PROCEDURES ETC. AS FAR AS POSSIBLE ARE APPLICABLE. THE POWER TO CONDONE THE DELAY THUS NE EDS BE READ TO BE EXISTENT BY VIRTUE OF THE LIMITATION ACT. WE MAY DRAW PARALLEL FROM THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT (PANJ I BENCH) IN THE CASE OF CIT VS. VELINGKAR BROTHERS (2007) 289 ITR 382 (BOMB AY FULL BENCH) IN THE CONTEXT OF APPEALS TO HIGH COURT AS PROVID ED IN SECTION 260A OF THE ACT. ERSTWHILE SECTION 260A OF THE AC T, THE HONBLE BOMBAY HIGH COURT HELD IN THAT CASE THAT THE PROVIS IONS OF SECTION 260A OF THE ACT DOES NOT EXCLUDE THE APPLICATION OF SECTION 5 OF THE LIMITATION ACT, 1963 AND THUS, THE COURT HAS INHERE NT POWER TO CONDONE THE DELAY IN FILING OF THE APPEALS. 17. THE DECISION OF THE HONBLE SUPREME COURT IN TH E CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT 295 ITR 466 (SC) ALSO PROVIDES USEFUL GUIDANCE. THE HONBLE SUPREME COURT HELD THA T THE PURPOSE BEHIND ENACTMENT OF SECTION 254(2) OF THE ACT IS BA SED ON THE FUNDAMENTAL PRINCIPLES THAT NO PARTY APPEARING BEFO RE THE TRIBUNAL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL. IF A PREJUDICE HAS RESULTED TO THE PARTY, WHICH PREJUD ICE IS SELF EVIDENTLY ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OM ISSION, THEN THE TRIBUNAL IS JUSTIFIED IN RECTIFYING ITS MISTAKE. T HE HONBLE ALLAHABAD M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 10 - HIGH COURT IN ITO VS. SINGAR SINGH 75 ITR 646 (ALL.) HAS NOTED THAT THE TRIBUNAL HAS INHERENT JURISDICTION TO RECTIFY A WRONG THAT WAS INADVERTENTLY CAUSED TO THE INNOCENT ASSESSEE BY NO T CONSIDERING THE RELEVANT GROUND AND FOR THAT REASON. AS PER THE AFO RESAID DECISION, THE TRIBUNAL IS BESTOWED WITH AN INHERENT JURISDICTION TO RECTIFY A WRONG COMMITTED BY ITSELF WHEN THAT WRONG CAUSES PREJUDIC E TO A PARTY FOR WHICH THAT PARTY IS NOT RESPONSIBLE. THE AFORESAID DECISION ALTHOUGH REVERSED IN 105 ITR 570 (SC) BUT WAS ON A DIFFERENT POINT. THE ASSESSEE IN THE INSTANT CASE MAY AT BEST BE CONSIDE RED A LESSER PRAGMATIC PERSON BUT CAN NOT BE SEEN TO BE A NEGLIG ENT OR INDOLENT PERSON IN ANY MANNER. IN VIEW OF THE DECISION OF T HE HONBLE ALLAHABAD HIGH COURT HOLDING INHERENT JURISDICTION WITH THE TRIBUNAL TO RECTIFY ITS OWN MISTAKE, WE ARE OF THE VIEW THAT THERE DOES NOT APPEAR TO BE AN ABSOLUTE PROHIBITION ON THE TRIBUNA L FOR RECTIFYING MISTAKE IN THE COUNTERVAILING CIRCUMSTANCES EXISTIN G IN THE PRESENT CASE. THE CIRCUMSTANCES WARRANT EXERCISE OF INHEREN T POWERS OF ITAT IN PROMOTING JUSTICE AND SHUN TECHNICALITIES BY REC ALLING THE EARLIER ORDER. 18. THE HONBLE SUPREME COURT IN S. NAGRAJ (SUPRA) WHILE EMPHASIZING ON PARAMOUNT NEED TO DO JUSTICE IN ALL CIRCUMSTANCES IN OVERWHELMING MANNER, INTER ALIA , OBSERVED THAT THE POWER TO DO SO CAN EITHER BE STATUTORY OR INHERENT. THE INHERENT POWE R IS AVAILABLE TO THE COURT WHERE THE MISTAKE IS THAT OF THE COURT. IT W AS FURTHER OBSERVED THAT IN ADMINISTRATIVE LAW, THE SCOPE IS STILL WIDE R. TECHNICALITIES APART, IF THE COURT IS SATISFIED OF THE INJUSTICE, THEN IT IS UNDER OBLIGATION TO SET IT RIGHT BY RECALLING ITS ORDER. HENCE, THE HONBLE SUPREME COURT HAS YET AGAIN REITERATED THAT EMBLEM OF JUSTICE STANDS TALL AND TECHNICALITIES WOULD NOT STAND IN ITS WAY FOR COURTS TO EXERCISE ITS INHERENT POWERS TO CURE THE MISTAKE. 19. THE HEADNOTE IN THE CASE OF CIT VS. HANSHA AGENCIES (P.) LTD. 255 ITR 493 (P&H) READS AS UNDER: M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 11 - APPEAL (TRIBUNAL)MISTAKE APPARENTISSUED LEFT UND ECIDED IN FIRST APPEALCIT(A) HAD ACCEPTED ASSESSEE'S APPEAL ON THE GROUND OF LIMITATION BUT HAD NOT GONE INTO THE OTHER GROUNDS REVENUE'S APPEAL DISMISSED BY TRIBUNAL BUT HIGH COURT ANSWERED THE R EFERENCE IN FAVOUR OF REVENUE AND TRIBUNAL THEN ACCEPTED REVENU E'S APPEAL ASSESSEE HAD NO OCCASION TO FILE ANY CROSS-APPEAL B EFORE THE TRIBUNAL FOR THE SIMPLE REASON THAT THE ENTIRE ASSESSMENT HA D BEEN ANNULLED IT WOULD BE WHOLLY UNJUST AND UNFAIR IF THE ASSESSE E IS DENIED AN OPPORTUNITY TO HAVE ITS CASE CONSIDERED BY THE APPE LLATE AUTHORITY ON OTHER ISSUESTHUS, THE ORDER OF THE TRIBUNAL RECALL ING ITS EARLIER DECISION AND REMANDING THE CASE TO THE CIT(A) FOR A DECISION ON THE GROUND(S) LEFT UNDECIDED WAS JUSTIFIED THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSE SSEE IS QUITE SIMILAR. THE ASSESSEE IN THE INSTANT CASE HAS NO O CCASION TO CHALLENGE THE ORDER OF TRIBUNAL AT EARLIER POINT OF TIME AS T HE ASSESSMENT ITSELF WAS ANNULLED BY THE TRIBUNAL WHICH ACTION WAS LATER REVERSED BY THE HONBLE GUJARAT HIGH COURT. HENCE, THE PLEA OF THE ASSESSEE MERITS ACCEPTANCE. 20. THE HONBLE ANDHRA PRADESH HIGH COURT IN CIT VS . HYDERABAD DECCAN LIQUOR SYNDICATE (1974) 95 ITR 130 WHILE DIS CUSSING THE SCOPE OF POWERS OF TRIBUNAL OBSERVED THAT WHERE THE TRIBUNAL HELD THE ASSESSMENT INVALID ONLY ON ONE GROUND AND DID NOT C ONSIDER OTHER GROUNDS RAISED BY ASSESSEE, THE TRIBUNAL WAS COMPET ENT TO CONSIDER SUCH OTHER GROUNDS IN THE SECOND ROUND CONSEQUENT U PON ASSESSMENT BEING HELD VALID BY THE HIGH COURT IN REFERENCE DE HORS ANY DIRECTION BY THE HIGH COURT. 21. IN CIT VS. KESHAV FRUIT MART (1993) 199 ITR 771 (ALL.), IT WAS OBSERVED THAT NON-CONSIDERATION OF GROUNDS SET UP I N APPEAL AMOUNTS TO MISTAKE APPARENT FROM RECORD. THE TRIBUNAL WAS THUS JUSTIFIED IN RECALLING ITS ORIGINAL ORDER. 22. THE APPELLATE TRIBUNAL HAS ALL THE TRAPPINGS OF A COURT OF LAW. NOTABLY, THE TRIBUNAL IS A LAST FACT FINDING AUTHOR ITY. THE TRIBUNAL IS THUS CAST WITH THE INHERENT DUTY TO CONSIDER AND DE CIDE ALL ISSUES THAT M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 12 - ARE BROUGHT BEFORE IT AS ECHOED IN ESTHURI ASWATHIAH VS. CIT(1967) 66 ITR 478(SC AND OTHER PLETHORO OF DECISIONS INCLUDING SHREEJI CHITRA MANDIR VS. CIT(2004) 269 ITR 55(MP) . IN SHORT, THE PROVISIONS OF SECTION 254(2) OF THE ACT LIMITING THE PERIOD SEEKI NG REMEDY FOR AN MANIFESTLY INCOMPLETE ORDER RENDERED AT THE FIRST I NSTANCE WOULD NOT TRANSCEND THE INHERENT POWER OF TRIBUNAL TO ENABLE IT DELIVER DECISION ON UNDECIDED GROUNDS WHICH DID NOT MERGE IN THE JUD GMENT OF HONBLE HIGH COURT. IN REFUSING TO DO SO, A GRAVE INJUSTICE WOULD RESULT TO THE LITIGANT FOR NO FAULT OF HIS AND WOULD SIMPLY TRIGG ER FUTILE LITIGATION AND ALSO UNDESIRED DISSATISFACTION IN THE MIND OF T AXPAYER. 23. WE CANNOT PART WITH THIS ORDER WITHOUT RECORDIN G OUR GRATEFUL APPRECIATION TO THE LEARNED ADVOCATE SHRI MANISH J. SHAH WHO HAS VOLUNTARILY JOINED THE PROCEEDINGS FOR INVITING THE ATTENTION OF THE BENCH ON NUANCES OF LAW. 24. TO SUMMARISE, THE REMEDY SOUGHT BY THE ASSESSEE CAN NOT BE FRUSTRATED ON THE GROUNDS OF BAR OF LIMITATION WITH OUT WEIGHING THE CIRCUMSTANCES OF THE CASE. AN INCOMPLETE ORDER WHOL LY ATTRIBUTABLE TO THE TRIBUNAL ITSELF SHOULD NOT ORDINARILY CAUSE MIS CARRIAGE OF JUSTICE. FAIR PLAY IS ONE OF THE MOST ESSENTIAL FACETS OF AN Y JUDICIAL PROCESS. WHEN THE PRINCIPLES LAID DOWN BY HONBLE SUPREME CO URT IN S. NAGRAJ (SUPRA) AND OTHER PRECEDENTS ARE APPLIED, IN OUR THOUGHTFU L CONSIDERATION, THE OBLIGATION IS CAST UPON THE TRIB UNAL TO SET RIGHT AND REMOVE THE ERROR OF AN INCOMPLETE DISPOSAL IN CONFO RMITY WITH JUDICIAL FUNCTIONS ENDOWED UPON IT. THE TRIBUNAL, IN OUR VI EW, IS COMPETENT TO DO SO. 25. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED AND THE ORDER OF THE TRIBUNAL IN IT(SS)A NO . 18/AHD/2000 IS RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATION OF GROUNDS REMAINING UNDECIDED AT THE TIME OF DISPOSAL OF THE SUBSTANTIV E APPEAL. M.A. NO. 215/AHD/2017 (IN IT(SS)A NO. 18/AHD/2000) - 13 - 26. THE REGISTRY SHALL LIST THE DATE OF HEARING OF THE SUBSTANTIVE APPEAL ON UNDECIDED GROUNDS ON 17/12/2020. NO SEPAR ATE INTIMATION TO THE PARTIES WOULD BE REQUIRED IN THIS REGARD. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 02/12/2020 TRUE COPY S. K. SINHA !' #' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. ) *+ , / CONCERNED CIT 4. ,- / CIT (A) 5. 012 33*+, *+#, 56$)$ / DR, ITAT, AHMEDABAD 6. 289 : / GUARD FILE. BY ORDER / $% , ;/ 5 *+#, 56$)$ < 1.DATE OF DICTATION ON 12.11.2020 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 12.11.2020 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 02 .12.2020 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 02/ 12 /2020