SHRI KAILASH CHAND SHARMA, AJMER V. INCOME TAX OFFICER, WARD-2-3, AJMER

MA 22/JPR/2021

AI Insights

The case involves Shri Kailash Chand Sharma, the appellant, who filed a Miscellaneous Application against the order of the ITAT, Jaipur Bench, dated 22-06-2021. The application sought rectification of alleged mistakes in the ITAT's earlier decision regarding the assessment year 2014-15. The appellant argued that the ITAT had overlooked important submissions and evidence, which led to mistakes apparent from the record. The respondent, The ITO Ward 2(3), Ajmer, opposed the application, asserting that the ITAT's original decision was correct and all arguments had been duly considered. The ITAT, after reviewing the submissions and relevant case laws, dismissed the application, stating that no mistakes were apparent in the original order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132427 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-01-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 16-09-2021
• Other Referred Cases: CIT v/s Ramesh Chand Modi, Gehna v/s ITO, Smt. Vijay Kirti Rathore v/s ACIT, M/s Jyoti Prakash Meel & Party v/s DCIT, Amore Jewels Private Ltd. vs. DCIT, Utsav Cold Storage Pvt. Ltd. vs. ITO, Nisha Synthetics Ltd. vs. CIT, Honda Siel Product Ltd. v/s CIT, CIT v/s Nirajan K. Zaveri
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Retrospective amendment; Additional evidence; Cost of acquisition
• Section: 68; 234B; 254(2); 153

Judgement Text

vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR JhlaanhixkslkbZ]U;kf;dlnL; ,oaJhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM Misc. Application No. 22/JP/2021 (Arising out of vk;djvihy la-@ITA No. 542/JP/2019) fu/kZkj.ko"kZ@AssessmentYear : 2014-15 Shri Kailash Chand Sharma Near Chaturbhuj Mandir Ajmer – 305 404 cuke Vs. The ITO Ward 2(3) Ajmer LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AKGPS 8992 M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby :Shri Mahendra Gargieya, Advocate jktLo dh vksjls@Revenue by: Shri A.S. Nehra, Addl. CIT lquokbZ dh rkjh[k@Date of Hearing : 04/01/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 14 /02/2023 vkns'k@ORDER PER: SANDEEP GOSAIN, JM The assessee has filed a Miscellaneous Application against ITAT, Jaipur Bench order dated 22-06-2021 for rectification of mistake u/s 254(2) of the I.T.Act by praying therein as under:- ‘’1. That the above appeal by the assessee was decided by this Hon'ble ITAT vide its order dated 26.06.2021, for A.Y. 2014-15. A copy of the ITAT order is enclosed herewith for a ready reference and marked as "Annexure - 1". 2 MA NO.22/JP/2021 SHRI KAILASH CHAND SHARMA VS ITO, WARD 2(3), AJMER 2. That in the said order, there are certain glaring and patent mistakes apparent from the face of the record rectifiable u/s 254(2), hence, being submitted herein below: Mistake 1.1: At the outset from a bare perusal of the subjected ITAT order it is evidently clear that even though a detailed Written Submission (W/S) running into 9 pages was filed before the Hon'ble ITAT, before the date of hearing fixed on 08.04.2021 and there apart, the same were also sent over e- mail 07.04.2021, but it appears that the Hon'ble ITAT has not at all adverted to the aforesaid written submission. As evident from the bare reading of ITAT order, since the submission contained some very important argument going to the root of the issue and explaining/rebutting the allegations of the lower authorities, but non- consideration of the same has resulted into apparent mistakes, further submitted herein below. discussed later. It clearly appears to have escaped the kind attention of the Hon'ble Members. A copy of the covering letter with screenshot showing sending of E-mail, which is self-evident, is enclosed herewith, and marked as "Annexure 2" The law is well settled that non-consideration of important submissions, arguments, certainly constitute a mistake apparent from record u/s 254 of the Act. Mistake 1.2: The Hon'ble ITAT in para 7 at page 3 of the order, only referred the written submissions filed before the CIT(A) and the content of para 4.2 of CIT(A) order has been reproduced. However, the ITAT has not whispered about the fact of the filing of the detailed written submissions which contained important arguments than mere reiteration therefore, it is not correct to say that the assesse has merely reiterated the same arguments. Mistake 2: The Hon'ble ITAT in para 11 at page 8 has recorded that: No new facts or circumstances have been brought before us in order to controvert or rebut the findings so recorded by the ld. CIT(A), therefore, we find no reason to interfere into......" Similarly in para 10 page 8 also, the ITAT observed that: ‘’...... ...no other independent evidence has been brought on record by the assesse to substantiate the statement made by the said Mr. Kanaram......." However, the above findings of the fact/observations made by the Hon'ble members of the ITAT appears to be factually wrong in as much as that Shri Kanaram had filed First Information Report (FIR) dated 28.01.2020 (PB42-45) against the assesse, denying the case made out by the assesse. However, the Investigation Officer, after making a detailed investigation found no substance in the allegations levelled by Kanaram (PB46-53)and hence, vide Final Report (FR) dated 11.04.2020 closed the case however, there is absolutely no reference of such submissions made through para 5 at page 7 onward under the title- "5. Final 3 MA NO.22/JP/2021 SHRI KAILASH CHAND SHARMA VS ITO, WARD 2(3), AJMER Report by Police and evidences which were submitted as a part of Paper Book filed on dated 17.02.2021. It may be clarified that this was a later development after the passing of the order by CIT(A). Since it was in a public domain hence these papers were not in the nature of additional evidence. There is nothing on record that Kanaram has further proceeded in the matter, meaning thereby the facts stood established that the subjected amount was given by Kanaram to the assesse and the same was repaid back, as claimed by the assesse. Mistake 3: Again the Hon'ble ITAT in para 10 at page 7 observed that in response to the summons issued by the ADIT(Inv), Ajmer, Shri Shailendra Singh Rathore, Advocate on behalf of Shri Kanaram filed a letter taking a contrary stand and denying the liability of Shri Kanaram. However, it is self evident from the orders of the authorities below that the aforesaid reply filed by Shri Shailendra Singh Rathore was never made available to the assesse at any stage even though it was a material gathered and used at the back of the assesse nor any opportunity of cross examination of Shri Rathore was given to the assesse. Morever such plain and simple letter was no evidence as against the statements made by Kanaram on oath through a duly sworn afiidavit (PB23). Detailed submissions were made on this aspect vide para 3 page 4 onward on the ITAT w/s titled as Affidavit A Sacrosanct Document - Cannot be disowned by mere retracting" but appears to have completely skipped the kind attention of the Hon'ble Members. Mistake 4: The Hon'ble ITAT again in para 10 at page 7 also observed that Kanaram did not gave appearance despite granting various opportunities therefore, the assesse has miserably failed to prove the affidavit filed by the said Kanaram.... On this aspect also, detailed and relevant submissions meeting with this situation, were made and contained in para 4 at page 5 of the ITAT written submission. In addition, pointed support was taken from the case of Sunil Kumar Agarwal v/s CIT(2014) 112 DTR 164 (Cal) as also various other case laws mentioned in para 4.7 of the said ITAT w/s were relied. But this also appears to have escaped the kind attention of the Hon'ble Members. It is well settled that the decisions cited and relied by a party, if ignored or not dealt with, also constitute a mistake u/s 254(2) Mistake 5: There apart, the very fact of making re payment by the assesse to Shri Kanaram himself and to his close relatives, was shown through a chart in para 2 of page 3 onward of ITAT w/s but skipped the kind attention, as there is no whisper on this aspect. Mistake 6: Lastly, the assesse also contended that the impugned addition was made u/s 68 of the act, which was absolutely without jurisdiction and in support the assesse made detailed submissions vide para 6 page 8 onward of ITAT w/s wherein certain case laws were also cited that in absence of books of account, Section 68 could not have been invoked. Further, neither the Ld. DR who argued the case on behalf of the respondent ITO nor the Ld. CIT(A) has given reference to section 69/69A. Hence, when the subjected appeal was filed before the Hon'ble ITAT the addition made u/s 68 (only) was under challenge as without jurisdiction. 4 MA NO.22/JP/2021 SHRI KAILASH CHAND SHARMA VS ITO, WARD 2(3), AJMER However, this legal aspect going to the root and aforesaid submissions also appears to have escaped the kind attention of the Hon'ble ITAT. 3. An affidavit of the appellant in support of the contention is enclosed herewith and marked as "Annexure 3". 2.1 To this effect, the ld. AR of the assessee has also filed the following case laws:- ‘’1. In the case of CIT v/s Ramesh Chand Modi (2001) 249 ITR 323 (Raj.) (DPB 1- 6), it was held that where the Tribunal fails to decide some of the questions raised before it inadvertently or by oversight, the only appropriate method of correcting such mistake is to recall the order. 2.1 In Gehna v/s ITO (2011) 137 TTJ 0017 (UO) (JP) held that: "Appeal (Tribunal) Rectification under s. 254(2) Non-consideration of submissions and decisions During the appellate proceedings before the Tribunal at the time of hearing of appeals of the Department and assessee, detailed written submissions were filed before the Tribunal in support of the order of CIT(A)- However, while taking a view against the finding of CIT(A), the finding of CIT(A) had not been taken into consideration by the Tribunal - There is no whisper in respect to the decisions relied upon by counsel of the assessee during the hearing of the appeal before the Tribunal - A mistake has been crept in the order of the Tribunal by not taking into consideration the vital aspect of the case and various case laws Order of the Tribunal is recalled in toto to decide the same afresh" The Hon'ble Rajasthan High Court has affirmed the above order in DB CWP 26/11 vide order dated 10.05.2017 (DPB 16-24). 2.2 In Smt. Vijay Kirti Rathore v/s ACIT (2015) 54 TW 1 (JP) held that: "Miscellaneous Application - Section 254(2)-ITAT in its order did not consider the judicial precedents relied upon by the assessee including case laws of Supreme Court. Jurisdictional High Court and Coordinate Benches - whether mistake apparent on record liable to be rectified u/s 254(2)? 5 MA NO.22/JP/2021 SHRI KAILASH CHAND SHARMA VS ITO, WARD 2(3), AJMER Held: Yes - ACIT Vs Saurashtra Kutch Stock Exchange Ltd. 305 ITR 227(SC) & Honda Siel Product Ltd. Vs. CIT 295 ITR 466 (SC) followed. ITAT failing to consider and decide important issues raised before it - CIT(A) had called for remand report from AO in respect to all the creditor and the AO could verify only 11 of them who too supported the version of assessee-based on these facts, addition was deleted by CITIA)- these facts ignored by ITAT- whether mistake apparent on record liable to be rectified u/s 254(2)? Held: Yes - Champa lal Chopra Vs. State of Rajasthan 74 ITR 257 (Raj HC), ACIT Vs. Rajasthan Asbestors Cement Co. XLI TW 153 and CIT Vs. Ramesh Chand Modi 249 ITR 324 (Raj HC) followed." 2.3 In M/s Jyoti Prakash Meel & Party v/s DCIT (2011) 55 TW 123 (Jp) held that: ‘’Considering the facts of this case and the submissions made by the parties, Tribunal have observed that earlier Tribunal have simply noted the facts recorded by AO and written submissions filed by assessee before AO and then just rejected the claim of assessee - Tribunal have also observed that there is no whisper in the order about various cases relied upon by the counsel of assessee before it - Accordingly Tribunal have held that a mistake apparent on record has occurred in its earlier order and hence its order dated 17.6.2009 is liable to be recalled as various aspects including various case laws have remained to be considered Thus miscellaneous application filed by the assessee has been allowed. Whether an order passed by Tribunal is liable to be recalled wherein a mistake apparent from records have occurred in its earlier order? - Held yes....." 2.4 In Amore Jewels Private Ltd. vs. DCIT (2018) 305 CTR 305 / 169 DTR 369 (Bom HC) held that if there is no discussion whatsoever by the Tribunal of the various case laws detailed in the submissions filed by the assessee, the order is non-speaking and has to be recalled. The Tribunal should take into account the material and case laws relied upon by the assessee during the hearing. 2.5 Also kindly refer Shri Rohan Agarwal vs. ACIT MA No. 117/JP/2018 (A/o ITA No. 51/JP/2016) order dt. 07.05.19, a similar view has been taken (DPB 25. 32). 2.6 Further in case of Utsav Cold Storage Pvt. Ltd. vs. ITO MA No. 122/JP/2016 (ITA No. 428/JP/2013) held that: *....13. We further note that contentions of the assessee regarding non-levy of interest u/s 234B due to retrospective amendment, though noted by the Coordinate Bench, has apparently missed its attention and the ground of 6 MA NO.22/JP/2021 SHRI KAILASH CHAND SHARMA VS ITO, WARD 2(3), AJMER appeal has been dismissed holding it as consequential in nature in view of deletion of ground relating to cost of acquisition." 3. In Nisha Synthetics Ltd. vs. CIT (2017) 291 CTR 0328 (SC) (DPB 14- 15) held that: "Appeal-Hearing of appeal-Appellant-assessee claimed that even on materials admitted to have been filed before Tribunal, appellant could make out its case-Admittedly. Tribunal had received some documents, as filed by appellant, though not as claimed by appellant before High Court- Held, even going by records which had been found to have been received by Tribunal, Tribunal might have directed to consider case of appellant- Therefore, Tribunal, was directed to hear appeal of appellant afresh on basis of documents, which had already been found to be filed by appellant-Appeal disposed of " 4.1 At this juncture, it shall be useful to refer Honda Siel Product Ltd. v/s CIT(2007) 295 ITR 466 (SC)(DPB 7-13), wherein it held that: ‘’........when prejudice result from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wrong party by the court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power review. In the present case, the Tribunal was justified in exercising its power under Sec.254(2)when it was pointed out to the Tribunal that the decision of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order...’’. In that case, a decision by a coordinate Bench though cited yet however, was not considered by the ITAT and the MA filed by the assessee, was accepted. Under this background, the rectification done by the ITAT was confirmed. Though present is not a case of a MA yet the availability of by a coordinate Bench has to be considered by another bench. 4.2 in CIT v/s Nirajan K. Zaveri (2009) 20 DTR 153 (Guj), it was held that: "In the case of Asstt. CIT VS. Saurashtra Kutch Stock Exchange Ltd. (2003) 183 CTR (Guj.1364: (2003) ITR 146 (Guj.) which has since been affirmed by the apex Court as reported in Asstt. CIT VS. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90: (2008) 305 ITR 227 (SC). If the Tribunal has committed an inadvertent error which results in injustice to one or the other side. The Tribunal is entitled to recall the order in given set of facts and circumstances of the case and decide the matter in accordance with law facts and evidence on record." 7 MA NO.22/JP/2021 SHRI KAILASH CHAND SHARMA VS ITO, WARD 2(3), AJMER Conclusively, the ld. AR prayed that the points raised by him through Misc. Application has escaped from the attention of the Bench while disposing of the appeal of the assessee and it should be taken into account while disposing of the Misc. Application of the assessee as there are mistakes apparent on record. 2.2 On the other hand, the ld. DR relied on the order of the ITAT (supra) and submitted that the ld. AR of the assessee wants to get ITAT order reviewed by way of filing Misc. Application which does not suffer any infirmity. 2.3 We have heard both the parties and perused the materials available on record including the case laws cited by the ld. AR of the assessee (supra). It is pertinent to mention that the Bench has made full efforts to pass the speaking order on 22-06-2021 on merit of the case by considering the available view point /submissions of the ld. AR of the assessee at the time of hearing of appeal of the assessee. It is also observed that the case laws now cited by the assessee in Misc. Application (supra) does not demonstrate before us as to what is the mistake apparent on record from the detailed findings given by the Bench in assessee’s. The Bench does not find any apparent mistake in its order which can affect the Bench to consider the Misc. Application filed by the assessee. Hence, in the light of the above facts and circumstances of the case, the Bench finds that there is no merit in the Misc. Application filed by the assessee which is dismissed. 8 MA NO.22/JP/2021 SHRI KAILASH CHAND SHARMA VS ITO, WARD 2(3), AJMER 3.0 In the result, the Misc. Application filed by the assessee is dismissed. Order Pronounced in the Open Court on 14/02/2023. Sd/- Sd/- ¼ jkBksM deys'k t;UrHkkbZ ½ ¼lanhi xkslkbZ½ (Rathod Kamlesh Jayantbhai) (Sandeep Gosain) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 14 /02/2023 *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Shri Kailash Chand Sharma, Ajmer 2. izR;FkhZ@ The Respondent- The ITO, Ward 2(3), Ajmer 3. vk;djvk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZQkbZy@ Guard File (MA No. 22/JP/2021) vkns'kkuqlkj@ By order, lgk;diathdkj@Asst. Registrar