Sudeshna Devi, Shamli V. ITO, Ward-1(5), Shamli

MA 231/DEL/2020

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 121443 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-08-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 15-09-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S.S. NAGAR
• Keywords: Reasonable cause
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’, NEW DELHI BEFORE SH. CHANDRA MOHAN GARG, JUDICIAL MEMBER MA No.231/Del/2020 (Assessment Year : 2010-11) Smt. Sudeshna Devi W/o. Shri Virender Singh, R/o Village Raseedgarh, Thanabhawan Distt. Shamli PAN No. GTMPS 4972 N Vs. ITO Ward – 1(5) Shamli (APPELLANT) (RESPONDENT) Assessee by Shri S. S. Nagar Shri Gaurav Sachdeva, C.A. Revenue by Shri Kanv Bali, Sr. D.R. Date of hearing: 25.08.2023 Date of Pronouncement: 04.09.2023 PER CHANDRA MOHAN GARG, JM : This Miscellaneous Application has been filed by the assessee seeking recall of the Tribunal order dated 22.11.2019 for Assessment Year 2010-11 (hereinafter referred as “the Tribunal order”). 2. Placing reliance on the order of Hon’ble High Court of Delhi in the case of CIT vs. Income-tax Appellate Tribunal reported as [2006] 155 Taxman 378 (Delhi), the Learned Counsel submitted that the Hon’ble High Court by referring to its earlier orders in the case of Karan & Co. vs. ITAT [2002] 253 ITR 131 elucidates the difference between review and rectification of an order made by the Tribunal and it was held that an order under Section 254(2) of the Act does not MA No.231/Del/2020 Sudeshna Devi vs. ITO 2 have the existence dehors the order under Section 254(1) of the Act. Learned Counsel submitted that any order passed under Section 254(2) of the Act either allowing the amendment or refusing the amend gets merged with the original order passed by the Tribunal, therefore, if any mistake has been crept in the order passed under Section 254(2) of the Act then the same is rectifiable under Section 254(2) of the Act. 3. Learned Counsel further placing reliance on the order of ITAT, SMC Bench dated 09.09.2022 in the case of DCIT vs. M/s. Modi Industries Ltd. in MA No.123/Del/2017 submitted that the Tribunal has rectified its mistake apparent from the order passed under Section 254(2) of the Act. Further explaining the facts of MA in hand, the Learned AR submitted that the MA No.731/Del/2019 was dismissed by the Tribunal treating the same as time barred by wrongly observing that the assessee has not filed MA application within the six months from the month in which the order was passed i.e. on 06.03.2018. Hence, the same is barred by limitation. The Learned Counsel drawn our attention towards copy of the Tribunal order submitted that the Tribunal passed order in ITA No.1080/Del/2018 for A.Y. 2010-11 on 06.03.2019 and the assessee filed MA No.731/Del/2019 seeking recall of that order on 11.09.2019 i.e. before expiry of six months from the end of March, 2019 month in which the order was passed. Therefore, the dismissal of MA of assessee on incorrect facts requires rectification and same may kindly be granted. 4. Replying to the above, the Learned Senior DR opposed to the maintainability of MA in hand and submitted that the MA against the MA No.231/Del/2020 Sudeshna Devi vs. ITO 3 order passed by the Tribunal in previous MA is not maintainable, therefore, the same may kindly be dismissed. 5. On carefully considered of the submissions, first of all, I take respectfully cognizance of the judgement of Hon’ble Jurisdictional High Court of Delhi in the case of CIT vs. ITAT (supra) wherein in Para 6 the Lordship held as follows: “6. It is evident from the above that the power available to the Tribunal is not in the nature of a review as is understood in legal parlance. The power is limited to correction of mistakes apparent from the record. What is significant is that the section envisages amendment of the original order of the Tribunal and not a total substitution thereof. That position is fairly well-settled by two decisions of this Court in Mr. Deeksha Suri v ITAT [1998] 232 ITR 395 and Karan & Co v. ITAT (2002) 253 ITR 1312 This Court has in both these decisions held that the foundation for the exercise of the jurisdiction lies in the rectification of a mistake apparent from the record which object is ensued by amending the order passed by the Tribunal. The said power does not, however, contemplate a re-hearing of the appeal for a fresh disposal. Doing so would obliterate the distinction between the power to rectify mistakes and the power to review the order made by the Tribunal. The following passage from the decision of this Court in Karan & Co.'s case (supra) elucidates the difference between review and rectification of an order made by the Tribunal: “The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under section 254(1) is the effective order so far as the appeal is concerned. Any order passed under section 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed The order as amended or remaining unamended is the effective order for all practical purposes. The same continues to be an order under section 254(1). That is the final order in the appeal. An order under section 254(2) does not have existence de hors the order under section 254(1). Recalling of the order is not permissible under section 254(2). Recalling of an order automatically necessitates re-hearing and readjudication of the entire subject- MA No.231/Del/2020 Sudeshna Devi vs. ITO 4 matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms or rule 24 of the Income- tax (Appellate Tribunal) Rules, 1963, and that too only in cases where the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex parte. This position was highlighted by one of us (Justice Arijit Pasayat, Chief Justice) in CIT v. ITAT [1992] 196 ITR 640 (Ori.). Judged in the above background the order passed by the Tribunal is indefensible." (p. 136)” 6. In view of above, respectfully following the judgment of Hon’ble Jurisdictional High Court I hold that the extant Misc. Application is maintainable as there is apparent mistake in the Tribunal order dated 22.11.2019 in MA No.731/Del/2019 as the Tribunal due to inadvertent mistake noted the date of Tribunal order in ITA No.1080/Del/2018 as 06.03.2018 which was in fact 06.03.2019. Therefore, the order of the Tribunal dated 22.11.2019 is recalled and it is held that the assessee has filed MA No.731/Del/2019 on 11.09.2019 within prescribed time limit of 6 months from the end of the month March, 2019 in which the Tribunal passed the order under challenge in the said MA. Therefore, only adjudicating the issue of limitation I hold that the MA No.731/Del/2019 was filed within prescribed time limit as per Section 254(2) of the Act. Since the same was dismissed by the Tribunal order dated 22.11.2019 on the basis of incorrect fact and date of filing, therefore, the said Tribunal order dated 22.11.2019 in MA No.731/Del/2019 is recalled. The registry is directed that the said MA No.731/Del/2019 be fixed for hearing before the Regular Bench on 13.10.2023. No notice for the next date of hearing in the original MA as the next date of hearing has been informed to both the parties on conclusion of hearing. MA No.231/Del/2020 Sudeshna Devi vs. ITO 5 7. In the result, MA No.231/Del/2020 is allowed with the directions to the registry as noted above. Order was pronounced in the open court on 04.09.2023 Sd/- (CHANDRA MOHAN GARG) JUDICIAL MEMBER Date:-04.09.2023 Priti Yadav* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI