DCIT, New Delhi V. VRC Constructions India (P) Ltd., Delhi

MA 252/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3607 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. YOGESH KUMAR US, JUDICIAL MEMBER MA No. 252/Del/2019 (arising out of ITA No.3868/Del/2015) (for Assessment Year : 2007-08) DCIT Circle – 17(1) New Delhi PAN No. AAACV 2339 J Vs. VRC Constructions India (Pvt.) Ltd., Plot No.16, VRC Tower, Pachim Vihar Ext., Rohtak Road, Paschim Vihar, Delhi (APPELLANT) (RESPONDENT) Assessee by Shri Suresh K. Gupta, C.A. Revenue by Shri Sandeep Kumar, Sr. D.R. Date of hearing: 17.06.2022 Date of Pronouncement: 11.07.2022 ORDER PER ANIL CHATURVEDI, AM : The present Miscellaneous Application (MA) is filed by the Revenue in respect of the order of Tribunal dated 30.11.2018 in ITA No.3868/Del/2015 for A.Y. 2007-08. 2. Before us, Learned DR took us through the MA and submitted that Hon’ble ITAT has passed the order without appreciating the fact that reasons of reopening the case were enclosed with Notice u/s 148 of the Act dated 27.03.2012, the AR of the assessee had appeared couple of times during 2 reassessment proceedings but never asked for reasons for reopening the case which indicate that assessee was well aware of the issues involved. He further submitted that Hon’ble ITAT had failed to consider the binding judgment of Hon’ble Apex Court in case of Home Finders Housing Ltd. vs. ITO reported in [2018] 94 taxmann.com 84 (SC). He submitted that non consideration of binding decision of Hon’ble Apex Court is mistake apparent from record as contemplated u/s 254(2) of the Act and therefore the order be rectified. 3. Learned AR on the other hand submitted that at the time of hearing of appeal before Hon’ble Tribunal, assessee had pointed to the various documents placed in the paper book which showed that assessee had objected to the reopening and assessee had also sought the reasons recorded at the time of issuance of notice. He submitted that the Tribunal after considering the submissions of the both the parties had clearly noted at para 10 of the order that the assessee had asked for the reasons of reopening but the same was not provided to the assessee. He thereafter submitted that the Hon’ble Tribunal after considering the various decisions cited therein has decided the issue and that there is no apparent error as contemplated u/s 254(2) of the Act in the order of ITAT and therefore, the MA of the Revenue be dismissed. He further submitted that through the present MA, Revenue is seeking review of the order passed by the Tribunal which is not permissible under the Act. 3 4. We have heard the rival submissions and perused the material on record. The grievance of the Revenue in the MA is that the reasons of reopening were enclosed with the notice issued u/s 148 of the Act and assessee had also participated in the proceedings and therefore in the light of the Hon’ble Apex Court decision, the Tribunal was not justified in concluding that the reasons for reopening were not furnished to assessee and therefore quashing the reassessment order. It is a settled law that power of rectification u/s 254(2) of the Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from record and not a mistake which requires to be established by arguments and long drawn process of reasoning. Further Tribunal cannot exercise its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from record itself. Hon’ble Bombay High Court in the case of CIT vs. Ramesh Electric and Trading Company (1993) 203 ITR 497 has held that Tribunal has no power to review its own order. Hon’ble Delhi High Court in the case of Ras Bihari Bansal v. Commissioner of Income-Tax and another, [2007] 293 ITR 365 (Delhi) has held that in the grab of an application for rectification it is not permissible to the parties to reopen and reargue the whole matter. Hon’ble Kerala High Court in the case of P.T. Manuel and Sons (2021) 434 ITR 416 has held that the power of rectification is not akin to that 4 of appeal or even a review. It has further held that merely because there is a wrong or erroneous order or a wrong appreciation of facts, the same cannot be grounds for rectification though they could be grounds for appeal. 5. In view of the aforesaid facts and following the decisions cited hereinabove, we are of the view that since the Revenue has filed to point out any mistake apparent from record in the order as contemplated u/s 254(2) of the Act, we are not inclined to recall the order in ITA No.3868/Del/2015 dated 30.11.2018 and thus the Misc. Application of the Revenue is dismissed. 6. In the result, the MA of the Revenue is dismissed. Order pronounced in the open court on 11.07.2022 Sd/- Sd/- (YOGESH KUMAR US) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 11.07.2022 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI