The ITO, Ward-2, Dahod V. Shri Rupam Rajendra Gorecha, Dahod

MA 236/AHD/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5548 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 31-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A L THAKKAR
• Keywords: Opportunity of being heard; Assessment record
• Section: 153A; 254(2); 64; 153; 158BD; 153C; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER MA NO. 236/AHD/2019 (IN IT(SS)A NO.151/AHD/2018) (ASSESSMENT YEAR : 2014-15) INCOME TAX OFFICER, WARD 2, DAHOD. VS. RUPAM RAJENDRA GORECHA, NAWA BAZAR, AT & POST LIMDI, TAL - JHALOD, DIST DAHOD 389 180. [PAN NO. AHYPG 8190 Q] (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI S. K. DEV, SR. D.R. RESPONDENT BY : SHRI A. L. THAKKAR, A.R. DATE OF HEARING 06.09.2019 DATE OF PRONOUNCEMENT 11.10.2019 O R D E R PER SHRI WASEEM AHMED ACCOUNTANT MEMBER : PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE REVENUE POINTING OUT SOME APPARENT MISTAKE IN THE ORDER OF THE ITAT DATE D 24.07.2019 PASSED IN IT(SS)A NO. 151/AHD/2018 AND SEEKING NECESSARY MODIFICATION THE REOF BY RECALLING THE SAME. 2. THE REVENUE IN ITS MA SUBMITS AS UNDER: 1. THE HON'BLE ITAT, 'C' BENCH AHMEDABAD VIDE ITS ORDER DTD. 24/07/2019 IN IT(SS)A NO.151/AHD/2018 HAS HELD THE ASSESSMENT FRA MED UNDER SECTION 153C AS NOT SUSTAINABLE AND ACCORDINGLY, THE SAME ORDER IS QUAS HED ONLY ON THE TECHNICAL GROUND. 2. IN THE SAID APPEAL, AS PER PARA - 2 & 3 OF PAGE -3 THE ASSESSEE HAS FILED THE ADDITIONAL GROUND OF APPEAL VIDE LETTER DTD. 04/06/ 2019 - 'THAT THE REQUISITION U/S.132A(1)(C) OF THE ACT WAS WITHOUT JURISDICTION AND WITHOUT HAVING REASONS TO BELIEVE THEREFORE REQUISITION ITSELF IS INVALID, ILLEGAL AN D CONTRARY TO THE PROVISION OF THE ACT. ACCORDINGLY, THE PROCEEDINGS U/S. 153A/153C OF THE ACT ARE ALSO ILLEGAL AND HAD IN LAW - 2 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 AND THE ASSESSMENT MADE IN PURSUANCE THEREOF DESERV ES TO BE QUASHED. WHICH HAS BEEN ADMITTED BY THE HON'BLE ITAT, AHMEDABAD WITHOUT GIV ING ANY OPPORTUNITY TO THE CONCERNED ASSESSING OFFICER/DEPARTMENT TO MAKE ANY COMMENT ON THE SAME. 2.1 IT MAY HERE BE NOTED THAT AS LAID DOWN UNDER RU LE 11 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, IN CASE ANY ADDIT IONAL GROUND IS PREFERRED, IT IS TO BE PUT UP BEFORE THE BENCH FOR ORDER AND WILL BE KEPT ON THE FILE SUBJECT TO ALL JUST EXCEPTIONS WHICH MAY BE TAKEN AT THE TIME OF HEARING REGARDING ITS ADMISSIBILITY ETC., AND A COPY THEREOF IS TO BE SENT TO THE RESPONDENT FOR INFORMA TION. WHILE DECIDING THE APPEAL, THE TRIBUNAL SHALL ALSO NOT REST ITS DECISION ON ANY OT HER GROUNDS UNLESS THE PARTY WHICH MAY BE AFFECTED THEREBY HAS HAD A SUFFICIENT OPPORTUNIT Y OF BEING HEARD ON THAT ADDITIONAL GROUND. AS APPARENT FROM THE FACTS OF THE CASE, THE ADDITIONAL GROUND/S OF THE ASSESSEE WAS ACCEPTED ON 04.06.2019, AND THE LAST DATE OF HE ARING WAS HELD ON 11.06.2019. THIS INDICATES THERE WERE ONLY SEVEN DAYS BETWEEN ADMISS ION OF ADDITIONAL GROUND AND LAST DATE OF HEARING, AND BY NO MEANS CAN BE CONSTRUED A S SUFFICIENT OPPORTUNITY FOR THE RESPONDENT REVENUE. ALSO, IT IS CRYSTAL CLEAR THAT NO DOCUMENTS, IF ANY, SUBMITTED BY THE ASSESSEE ALONGWITH ADDITIONAL GROUND OF APPEAL, WER E PROVIDED TO THE REVENUE FOR REBUTTAL OF THE SAME. 3. IT IS FURTHER NOTED FROM PAGE-17 OF THE ORDER OF THE HON'BLE TRIBUNAL THAT THERE WAS NO EVIDENCE SUGGESTING THAT THE AO OF NAYAN KOL HARI HAS RECORDED ANY SATISFACTIONS NOTE BEFORE HANDING OVER THE REQUISITION MATERIAL T O THE AO HAVING JURISDICTION OVER THE ASSESSEE'. IN THIS REGARD, SINCE THE ASSESSING OFFI CER IS SAME IN BOTH THE CASES AND THE ASSESSEE. SHRI NAYAN KOTHARI, HAS HIMSELF ADMITTED IN HIS STATEMENT RECORDED U/S. 131 OF THE IT ACT ON 11/03/2014, THAT ALL MATERIALS/ASSETS BELONG TO SHRI RUPAM GORECHA. SIMILARLY VIDE STATEMENT OF SHRI RUPAM GORECHA RECO RDED ON OATH ON 13.03.2014, SHRI RUPAM GORECHA HAS ALSO ADMITTED THAT ALL MATERIALS/ ASSETS BELONG TO HIM. NOW COMING TO THE TIME LINE OF THE CASE, AS EVIDENT FROM THE A BOVE. SHRI NAYAN KOTHARI AS WELL AS SHRI RUPAM GORECHA. BOTH HAD ADMITTED ON 11.03.2014 AND 13.03.2014, RESPECTIVELY, THAT THE ALL MATERIALS/ASSETS BELONG TO SHRI RUPAM GORECHA. THE POLICE DEPARTMENT. UJJAIN. INDORE. HAD CAUGHT SHRI N'AVAN KOTHARI WITH THE ALL MATERIALS ASSETS BELONGING TO SHRI RUPAM GORECHA. ON 11.03.2014 AFTER WHICH SUBSEQUENT TO THE ORDER DATED 23.04.2014 OF JMFC. BADNAGAR, UJJAIN, ALL MATERIALS/ASSETS BELONG ING TO SHRI RUPAM GORECHA. CAME INTO THE POSSESSION OF THE REVENUE DEPARTMENT ON 29 .04.2014. THUS, SECTION 153C WAS INVOKED ON 04.08.2015 IN THE CASE OF SHRI RUPAM R. GORECHA ONLY AFTER AND AS PER HIS OWN STATEMENT AND ALSO OF SHRI NAYAN KOTHARI. FURTH ER AS PER ASSESSMENT RECORDS OF NAVAN KOTHARI ALL THE DETAILS HAS BEEN MENTIONED IN THE OFFICE NOTE OF ASSESSMENT ORDER OF THE ASSESSEE WHICH IS PASSED U/S. 153A. THE ASSE SSMENT RECORDS WERE MADE AVAILABLE TO THE HON'BLE ITAT AND COULD HAVE BEEN PURSUED BY THEM. 4. IN THE OFFICE NOTE DTD.25/10/2016. IT HAS BEEN CLEARLY MENTIONED BY THE AO, THAT 'AFTER SEIZURE STATEMENT ON OATH WAS RECORDED OF SH RI NAYAN KOTHARI CARRIER AT THE TIME OF MOVEMENT OF SEIZURE ITERMS ON 11.03.2014] ON DAT ED 11.03.2014 AND SHRI NAYAN KOTHARI STATED THAT SILVER BULLION 479.50 KGS AND C ASH AMOUNTING OF RS.27,80,110/- BELONGS TO SHRI RUPAM R. GORECHA, LIMDI, DAHOD, FUR THER STATEMENT ON OATH WAS ALSO RECORDED OF SHRI RUPAM R. GORECHA ON 13.03.2014 BY DDIT [INV.] UJJAIN AND DURING THE - 3 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 STATEMENT SHRI RUPAM R. GORECHA STATED THAT SEIZURE OF SILVER BULLION 479.50 KGS BELONGS TO HIM AND CASH AMOUNTING OF RS.27,80,110/- PERTAIN S TO HIS FAMILY'. FURTHERMORE, IN THE OFFICE NOTE IT HAS ALSO BEEN MENTIONED THAT 'IN THI S CASE AS DISCUSSED ABOVE, SILVER BULLION 479.50 KGS AND CASH AMOUNTING OF RS.27,80,110/- BEL ONGS TO SHRI RUPAM R. GORECHA AND THE ASSESSEE SHRI NAYAN KOTHARI IS SALARIED PERSON ONLY AND HE WAS MESSENGER/ CARRIER ONLY. THEREFORE, NO ANY DISCREPANCY WAS FOUND DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS IN THE CASE OF SHRI NAYAN KOTHARI', 5. THE LEGISLATIVE INTENT BEHIND RECORDING OF SATIS FACTION NOTE BY THE AO DOING 153A WAS SIMPLY TO COME TO THE CONCLUSION THAT MATERIALS BELONGS NOT TO THE PERSON IN WHOSE CASE 153A IS BEING DONE BUT TO SOME OTHER PERSON. I N THE PRESENT CASE THE ASSESSEE HIMSELF DURING THE COURSE OF POST SEARCH PROCEEDING S HAS ACCEPTED IN HIS STATEMENT DATED 13.03.2014 THAT THE SEIZED MATERIALS BELONG TO HIM. HENCE THERE IS A SATISFACTION ENOUGH IN FORM OF STATEMENT ITSELF BY WHICH PROCEEDINGS U/ S. 153C CAN BE INITIATED. MOREOVER, THE AO OF BOTH CASE IS ONE AND SAME. IN THE SATISFACTIO N NOTE OF THE AO FOR ISSUING NOTICE U/S. 153C OF THE IT ACT 1961 DID. 31/07/2015, IT HAS BEE N RECORDED 'BESIDES THE INFORMATION AVAILABLE ON RECORD, AS PER THE INQUIRY CONDUCTED B Y DDIT [INV.] BHOPAL AND ALSO BY THE ADIT/INV.] BARODU PRIMA FACIE THE IMPUGNED CASH AND SILVER BULLION APPEARS TO THE UNACCOUNTED ASSETS OF THE ASSESSEE I.E. SHRI RUPAIN R. GORECHA. IF THE ASSETS VALUABLES BELONGS TO A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153A THEN, THE ASSESSING OFFICER SHALL BE REQUIRED TO ASSESS OR RE-ASSESS TH E INCOME OF OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153A OF THE IT ACT. AS THE WARRANT OF AUTHORIZATION U/S. 132A WAS ISSUED IN THE NAME OF SHRI NAYAN KOTHARI U PON SEIZURE OF CASH AND SILVER FROM HIM. NOTICE U/S. 153A SHALL BE ISSUED IN THE NAME O F SHRI NAYAN KOTHARI AND NOTICE U/S.153A SHALL BE ISSUED IN THE NAME OF SHRI RUPAM R. GORECHA, WHO HAS OWNED UP THE SEIZED CASH AND SILVER. THEREFORE, I AM SATISFIED T HAT THE ASSETS SEIZED OR REQUISITIONED HAVE A HEARING ON THE DETERMINATION OF THE TOTAL IN COME OF SHRI RUPAM R GORECHA FOR THE RELEVANT A.Y. IN ACCORDANCE WITH THE PROVISION OF S ECTION 153A OF THE I.T. ACT, AND AS SUCH THIS IS A FIT CASE FOR ISSUING NOTICE U/S 153C OF THE I.T. ACT 1961. ISSUE NOTICE U/S.153C ACCORDINGLY'. 6. AS REGARDS, ASSESSEE'S GROUNDS OF APPEAL NO.2 W ITH REGARD TO NON-RECORDING OF SATISFACTION AS REQUIRED BY LAW. IT IS STATED THAT THE SATISFACTION U/S 153C' OF THE ACT IN THE CASE OF SHRI RUPAM GORECHA WAS DULY RECORDED ON 31. 07.2015 WHICH WAS WELL WITHIN STIPULATED TIME AND THE FINAL ORDER WAS PASSED ON 2 5.10.2016. 7. IN THIS MATTER, IT IS SUBMITTED THAT THE ASSESSE E, SHRI RIIPAM GORECHA, HAS ALSO FILED CONTEMPT OF COURT IN HIS CASE AFTER COMPLETIO N OF ASSESSMENT PROCEEDINGS AGAINST THE THEN ITO AND THE THEN ADDL. CIT PANCHMAHAL RANG E, GODHRA. HOWEVER, THE HON'BLE CHIEF JUSTICE OF HIGH COURT HAS DISMISSED HIS PETIT ION STATING THAT THE 'THERE IS NO RESTRAINT ORDER UPON THE ASSESSING ASSESSING OFFICE R TO FRAME AN ORDER OF ASSESSMENT. ONCE AN ORDER OF ASSESSMENT HAS BEEN FRAMED, THE PE TITIONER HAS THE REMEDY TO CHALLENGE SUCH AN ORDER OF ASSESSMENT IN APPROPRIATE PROCEEDI NGS, HUT IT CANNOT HE SAID THAT AN ORDER PASSED BY THIS COURT HAS BEEN VIOLATED IN ANY MANNER WHEN AN ORDER OF ASSESSMENT IS PASSED.' HON'BLE HIGH COURT HAS FURTHER OBSERVED THAT 'A READING OF AN ORDER PASSED BY THIS COURT DOES NOT SHOW THAT AN ORDER OF ASSESS MENT COULD NOT HAVE BEEN PASSED.' - 4 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 THUS, FROM THE ABOVE, IT IS ALSO VERY CLEAR THAT TH E ISSUE BEFORE THE HON'BLE SUPREME COURT WAS NOT RELATED TO THE ASSESSMENT PROCEEDING BUT WAS REGARDING THE PROCEEDINGS U/S 132A OF THE ACT. THEREFORE, IT IS CLEAR THAT TH E ORDER OF HON'BLE MP HIGH COURT IS RELATED TO RELEASE OF ASSETS AND NOT ABOUT THE ASSE SSMENT PROCEEDINGS AND HAVE GIVEN A GO AHEAD TO COMPLETE THE ASSESSMENT PROCEEDINGS. 8. THE APPEAL TO HON'BLE ITAT BY WAY OF MISCEL LANEOUS APPLICATION IS BEING FILED CONSIDERING THE ABOVE FACTS. RELIEF CLAIMED IN MA IT IS THEREFORE PRAYED THAT THE HON'BLE ITAT 'C' BE NCH AHMEDABAD MAY RECALL ITS ORDER DATED 24/07/2019 IN IT(SS)A NO.151/AHD/2018, IN THE ABOVE REFERRED CASE FOR THE AY 2014-15 ON THE FOLLOWING GROUNDS: 1. HONBLE ITAT C BENCH AHMEDABAD HAS NOT AD JUDICATED THE ISSUE REGARDING ASSESSMENT U S 153C' OF THE ACT ON MERITS. 2. THERE IS NO TECHNICAL LAPSE ON THE PART OF RE VENUE IN FINALISING THE ASSESSMENT U/S 153C OF THE ACT. 3. THE ASSESSEE HAS NEVER CHALLENGED OR OTHERWIS E THE NOTICE ISSUED U/S 153C OF THE ACT. THE CONTEMPT PETITION OF THE ASSESSEE FILED AG AINST THE ASSESSMENT PROCEEDINGS INITIATED U/S 153A AND U/S 153C OF THE ACT HAS BEEN OVERRULED BY THE HIGH COURT OF MP, HOWEVER, THE ITAT HAVE DECIDED TH E ISSUE ON TECHNICALITY THAT TOO WITHOUT ADHERING THE MERITS OF THE CASE. 4. THE MISTAKE CREPT-IN IN THE ORDER OF HONBLE ITAT IS APPARENT FROM THE RECORDS AND IS A RECTIFIABLE MISTAKE. 5. THE APPELLANT CRAVES TO RECONSIDER THE APPEA L CONSIDERING THE MERITS OF THE CASE AND DECREE OF HONBLE M.P. HIGH COURT. SINCE THE MATTER IS UNDER CONSIDERATION FOR RELEASE OF ASSETS IN THE COURT OF HON'BLE 1 ST CLASS JUDICIAL MAGISTRATE, BADNAGAR AND DATE OF HE ARING IN THE COURT IS FIXED ON 02/08/2019 THEREFORE THE MISCELLANEOUS APPLICATI ON HAS BEEN FILED IN THIS CASE AFTER OBTAINING THE ONLINE ORDER FROM OFFICIAL WEBSITE OF HONBLE ITAT. IN VIEW OF THE ABOVE THE LD. DR PRAYED TO RECALL TH E ORDER OF THE ITAT DATED 24- 07-2019. 3. ON THE OTHER HAND, THE LD. AR FOR THE ASSESSEE A T THE TIME OF HEARING SUBMITTED THAT THE SCOPE OF THE RECTIFICATION UNDER SECTION 2 54(2) OF THE ACT IS LIMITED TO THE MISTAKE APPARENT ON RECORD. AS SUCH, THERE IS NO SUCH MISTA KE APPARENT FROM RECORD IN THE ORDER OF - 5 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 THE ITAT IN THE PRESENT CASE. THE LD. AR FOR THE AS SESSEE SUPPORTED THE ORDER OF THE ITAT. 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORDS CAREFULLY. THE PROVISION OF SUB-SECTION 2 OF SECTIO N 254 HAS DIRECT BEARING ON THE CONTROVERSY BEFORE US. THEREFORE IT IS IMPERATIVE U PON US TO TAKE NOTE OF THE RELEVANT PART OF SECTION, WHICH READ AS UNDER: ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREO N AS IT THINKS FIT. (1A) [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 63 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED], WITH A VIEW T O RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD 64 , AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1 ), AND 64 SHALL MAKE SUCH AMENDMENT 64 IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASS ESSEE OR THE 65 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABI LITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNA L HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD BEFORE WE EMBARK UPON AN ENQUIRY ON THE FACTS OF PR ESENT CASE IN ORDER TO FIND OUT WHETHER THERE IS ANY APPARENT ERROR COMMITTED BY TR IBUNAL OR NOT WHILE ADJUDICATING THE APPEAL, WE THINK IT APPROPRIATE TO BEAR IN MIND CER TAIN BASIC PRINCIPLES FOR EXERCISING THE POWERS CONTEMPLATED IN SECTION 254(2) OF THE INCOME TAX ACT, 1961 IN THE LIGHT OF VARIOUS JUDGMENTS OF HONBLE SUPREME COURT AS WELL AS HONBLE HIGH COURT EXPOUNDING THE SCOPE OF EXERCISING POWERS UNDER SECTION 254(2) OF THE ACT. WE DO NOT DEEM IT NECESSARY TO RECITE AND RECAPITULATE ALL OF THEM, B UT SUFFICE TO SAY THAT CORE OF ALL THESE AUTHORITATIVE PRONOUNCEMENTS IS THAT POWER FOR RECT IFICATION UNDER SECTION 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN MISTAKE, WHICH IS SO UGHT TO BE RECTIFIED, IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECO RD AND NOT A MISTAKE, WHICH IS - 6 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DR AWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FO R FORTIFYING THIS VIEW, WE MAKE REFERENCE TO THE DECISION OF THE HONBLE JURISDICTI ONAL HIGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LD., 262 ITR 146 WH ICH HAS BEEN UPHELD BY THE HONBLE SUPREME COURT REPORTED IN 305 ITR 227. THE HONBLE COURT HAS LAID DOWN FOLLOWING PROPOSITION WHILE CONCLUDING THE JUDGMENT : '(A) THE TRIBUNAL HAS POWER TO RECTIFY A MISTAKE AP PARENT FROM THE RECORD ON ITS OWN MOTION OR ON AN APPLICATION BY A PARTY UNDER S. 254 (2) OF THE ACT; (B) AN ORDER ON APPEAL WOULD CONSIST OF AN ORDER MA DE UNDER S. 254(1) OF THE ACT OR IT COULD BE AN ORDER MADE UNDER SUB-S. (1) AS AMENDED BY AN ORDER UNDER SUB-S. (2) OF S. 254 OF THE ACT; (C) THE POWER OF RECTIFICATION IS TO BE EXERCISED T O REMOVE AN ERROR OR CORRECT A MISTAKE AND NOT FOR DISTURBING FINALITY, THE FUNDAMENTAL PR INCIPLE BEING THAT POWER OF RECTIFICATION IS FOR JUSTICE AND FAIR PLAY; (D) THAT POWER OF RECTIFICATION CAN BE EXERCISED EV EN IF A MISTAKE IS COMMITTED BY THE TRIBUNAL OR EVEN IF A MISTAKE HAS OCCURRED AT THE I NSTANCE OF PARTY TO THE APPEAL; (E) A MISTAKE APPARENT FROM RECORD SHOULD BE SELF-E VIDENT, SHOULD NOT BE A DEBATABLE ISSUE, BUT THIS TEST MIGHT BREAK DOWN BECAUSE JUDIC IAL OPINIONS DIFFER AND WHAT IS A MISTAKE APPARENT FROM THE RECORD CANNOT BE DEFINED PRECISELY AND MUST BE LEFT TO BE DETERMINED JUDICIALLY ON THE FACTS OF EACH CASE; (F) NON-CONSIDERATION OF A JUDGMENT OF THE JURISDIC TIONAL HIGH COURT WOULD ALWAYS CONSTITUTE A MISTAKE APPARENT FROM THE RECORD, REGA RDLESS OF THE JUDGMENT BEING RENDERED PRIOR TO OR SUBSEQUENT TO THE ORDER PROPOSED TO BE RECTIFIED; (G) AFTER THE MISTAKE IS CORRECTED, CONSEQUENTIAL O RDER MUST FOLLOW AND THE TRIBUNAL HAS POWER TO PASS ALL NECESSARY CONSEQUENTIAL ORDERS.' IN THE LIGHT OF THE ABOVE DISCUSSION, WE PROCEED TO ADJUDICATE THE 1 ST FOLD OF CONTENTION OF THE REVENUE THAT THE ITAT HAS NOT PRO VIDED SUFFICIENT OPPORTUNITY FOR THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. IN THE CA SE ON HAND, THE ASSESSEE HAS RAISED THE ADDITIONAL GROUND OF APPEAL VIDE LETTER DATED 04.06 .2019 IN THE APPEAL FIXED FOR HEARING ON 06.06.2019. HOWEVER, ON 06.06.2019 THE APPEAL WA S ADJOURNED TO 11.06.2019 A DATE - 7 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 CONVENIENT TO BOTH THE PARTIES. AS SUCH, THE MATTER WAS LISTED FOR HEARING ON 11.06.2019 AFTER INTIMATING TO THE LEARNED DR FOR THE REVENUE. 5. ON PERUSAL OF THE APPLICATION FILED BY THE ASSES SEE FOR FILING THE ADDITIONAL GROUND OF APPEAL DATED 04.06.2019, WE NOTE THAT THE COPY O F THE ADDITIONAL GROUND WAS ALSO FORWARDED TO THE DEPARTMENTAL REPRESENTATIVE. 6. IT IS ALSO INTERESTING TO NOTE THAT SHRI O. P. S HARMA, THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS PRESENT ON THE DATE OF FILING TH E ADDITIONAL GROUND OF APPEAL AS WELL AS ON THE DATE OF HEARING I.E. 06.06.2019 AND 11.06.20 19 RESPECTIVELY. MOREOVER, THERE WAS NO OBJECTION RAISED BY THE LEARNED DEPARTMENTAL REP RESENTATIVE ON THE DATE OF HEARING SEEKING TIME FOR THE PREPARATION OF THE CASE ON THE ADDITIONAL GROUND OF APPEAL. THEREFORE, IT IS INFERRED THAT THERE WAS CONSENT OF THE LEARNED DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING OF THE APPEAL AND NO OBJECTI ON OF WHATSOEVER WAS RAISED FOR SEEKING THE ADJOURNMENT. 7. IT IS ALSO IMPORTANT TO NOTE THAT THE IMPUGNED C ASE WAS THE STAY GRANTED MATTER AND THE ASSESSEE IN THE STAY ORDER WAS DIRECTED NOT TO SEEK ANY ADJOURNMENT WITHOUT JUST CAUSE. HAD THERE BEEN ANY OBJECTION FROM THE SIDE O F THE REVENUE ON DAY OF HEARING OF THE CASE, THE LEARNED DR WAS TO MOVE AN APPLICATION FOR THE SAME. BUT WE FIND THAT THERE WAS NO SUCH APPLICATION MOVED BY THE REVENUE. WE ALSO NOTE THAT THE APPEAL FILED BY THE ASSESSEE WAS ADJUDICATED ON TECHNICAL GROUND RAISED BY THE ASSESSEE HOLDING THAT THERE WA S NO SATISFACTION RECORDED BY THE AO BEFORE INITIATING THE PROCEEDINGS UNDER SECTION 153 C OF THE ACT. IN THIS REGARD, WE NOTE THAT SUCH ISSUE WAS RAISED BY THE ASSESSEE IN GROUN D NO. 3 AS WELL AS ADDITIONAL GROUND OF APPEAL FILED IN THE LETTER DATED 4 JUNE 2019. THUS, IT IS CLEAR THAT THE GRIEVANCE OF THE - 8 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 REVENUE THAT THERE WAS NOT PROVIDED SUFFICIENT OPPO RTUNITY TO THE REVENUE DOES NOT APPEAR TO BE CORRECT IN THE GIVEN FACTS AND CIRCUMSTANCES. IN VIEW OF THE ABOVE, WE HOLD THAT THERE IS NO MIST AKE APPARENT FROM THE RECORD IN THE ORDER OF THE ITAT ON ACCOUNT OF NON-GRANTING OF THE OPPORTUNITY TO THE REVENUE. 9. THE 2 ND GRIEVANCE OF THE REVENUE IS THAT THE PROCEEDINGS W ERE INITIATED UNDER SECTION 153C OF THE ACT AGAINST THE ASSESSEE AFTER COMPLYING THE PROVISIONS OF LAW AND AFTER RECORDING THE SATISFACTION AS CONTEMPLATED UN DER THE PROVISION OF SECTION 153C OF THE ACT AND THIS FACT WAS ALSO ADMITTED BY THE ASSE SSEE IN THE STATEMENT FURNISHED BY HIM. IN THIS REGARD, WE NOTE THAT THE ITAT IN HIS ORDER DATED 24 TH JULY 2019 AFTER CONSIDERING THE MATERIALS AVAILABLE ON RECORD INCLUDING THE INF ORMATION OBTAINED UNDER RTI DECIDED THE APPEAL OF THE ASSESSEE. MOREOVER, WE NOTE THAT THERE WAS THE CIRCULAR NO. 24/2015 ISSUED BY THE CBDT DATED 31 DECEMBER 2015 REQUIRING THE AO TO RECORD THE SATISFACTION UNDER THE PROVISIONS OF SECTION 153C OF THE ACT EVE N IF THE AO OF SUCH PERSON AND THE OTHER PERSON IS ONE AND THE SAME. THE RELEVANT EXTR ACT OF THE CBDT CIRCULAR IS EXTRACTED BELOW: 4. THE GUIDELINES OF THE HON'BLE SUPREME COURT AS REFERRED TO IN PARA 2 ABOVE, WITH REGARD TO RECORDING OF SATISFACTION NOTE, MAY BE BROUGHT TO THE NOTICE OF ALL FOR STRICT COMPLIANCE. IT IS FURTHER CLARIFIED THAT EVEN IF THE AO OF THE SEARCHED PERSON AND THE 'OTHER PERSON' IS ONE AND THE SAME, THEN ALSO HE IS REQUIRED TO RECORD HIS SATISFACTION AS HAS BEEN HELD BY THE COU RTS. 5. IN VIEW OF THE ABOVE, FILING OF APPEALS ON THE I SSUE OF RECORDING OF SATISFACTION NOTE SHOULD ALSO BE DECIDED IN THE LIGHT OF THE ABO VE JUDGEMENT. ACCORDINGLY, THE BOARD HEREBY DIRECTS THAT PENDING LITIGATION WITH R EGARD TO RECORDING OF SATISFACTION NOTE UNDER SECTION 158BD /153C SHOULD BE WITHDRAWN/NOT PRESSED IF IT DOES NOT MEET THE GUIDELINES LAID DOWN BY THE APEX COURT. MOREOVER, WE NOTE THAT THE REVENUE HAS NOT POINTED OUT ANY SPECIFIC DEFECT IN THE ORDER PASSED BY THE ITAT. AS WE HAVE ALREADY HELD T HAT, THE SCOPE OF THE RECTIFICATION UNDER SECTION 254(2) OF THE ACT IS VERY LIMITED TO THE EXTENT OF MISTAKE APPARENT FROM RECORD FOR WHICH 2 VIEWS ARE NOT POSSIBLE. THUS WE HOLD THAT THE ITAT HAS TAKEN A - 9 - MA NO.236/AHD/2019 ITO VS. RUPAM RAJENDRA GORECHA ASST.YEAR 2014-15 CONSCIOUS DECISION AFTER DUE APPLICATION OF MIND. T HUS THE ORDER OF THE TRIBUNAL DOES NOT SUFFER FROM ANY INFIRMITY WHICH IS APPARENT FROM RE CORD. IN VIEW OF THE ABOVE DISCUSSIONS AND FINDING, WE ARE OF THE VIEW OF THAT THERE IS NO MERIT IN THE MISC. APPLICATION FILED BY THE REVENUE, WHICH IS ACCORDINGLY DISMISSED. AS THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE ON TECHNICAL REASONS, THEREFORE THE ISSUE RAISED ON MERIT WAS NOT DECIDED. HOWEVER, IN OUR CONSIDERED VIEW NON- ADJUDICATION OF THE ISSUE ON MERIT DOES NOT LEAD TO HOLD THAT THERE IS A MISTAKE IN THE ORDER OF THE ITAT. 10. IN THE RESULT, MISC. APPLICATION OF THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 11/10 /2019 SD/- SD/- ( MAHAVIR PRASAD ) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 11/10/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A). 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD