DCIT, Gurgaon V. Shri Chand Singh, New Delhi

MA 256/DEL/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1029 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-07-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-07-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 30-08-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Rectification of order; FORM 26AS
• Section: 148; 143(3); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘B’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI ANUBHAV SHARMA, JUDICIAL MEMBER MA Nos.255 & 256/Del/2022 (in ITA Nos.3860 & 3861/Del/2016) (ASSESSMENT YEARS : 2010-11 & 2011-12) ACIT, Circle 1 (1), vs. Shri Chand Singh, Gurgaon. C/o M/s. RRA TAXINDIA, D-28, South Extension Part 1, New Delhi – 110 049. (PAN : DEVPS2076J) (APPLICANT) (RESPONDENT) ASSESSEE BY : Shri Rakesh Gupta, Advocate Shri Deepesh Garg, Advocate APPLICANT/REVENUE BY : Shri Vivek Kumar Upadhyay, Sr. DR O R D E R PER SHAMIM YAHYA, ACCOUNTANT MEMBER : By way of this misc. application, applicant/Revenue seeks rectification of mistake apparent from record in the order of this Tribunal in ITA Nos.3860 & 3861/Del/2016 for the Assessment Years 2010-11 & 2011-12 vide order dated 05.07.2021. 2. The submissions of the Revenue are as under :- “ Brief facts of the case for A.Y. 2010-11:- The assessee filed his income tax return (ITR) for AY 2010-11 on 31.03.2012 declaring total income of Rs.20,12,920/-. The case was picked up for scrutiny and assessment was framed u/s 143(3) of the Income Tax Act, 1961 (hereinafter 'the Act') on MA Nos.255 & 256/Del/2022 2 28.02.2013 with the acceptance of returned income. The assessee had disclosed total income of Rs.2,85,079/- only and 50 percent of the enhanced compensation of Rs.36,45,705/- i.e., Rs.18,22,853/- (after claiming deduction of 50 percent u/s 57 (iv) of the Act). Thereafter, Assessing Officer on the basis of the information found in Form 26AS issued to the assessee a notice u/s 148 of the Act. The Form 26AS contained the information about the receipt of Rs.2,17,64,344/- by the assessee on 10.06.2009 from the Land Acquisition Office. The assessment order was thereafter, passed ii]» 147 r.w.s 143(3) of the Income Tax Act, 1961 on 28.03.2015 wherein an addition of Rs.90,59,320/- (after claiming deduction of 50 percent on enhanced compensation of Rs.l,81,18,639/- that is Rs.2,17,64,344/- less Rs.36,45,705/- which was already disclosed in the ITR) was made to the income of the assessee and the assessed income was fixed at Rs.1,10,72,240/- (after rounding off). Aggrieved with the order of the AO, the assessee filed an peal before the Ld. CIT(Appeal) who dismissed the appeal of the assessee relying on the decision of Hon'ble Punjab & Haryana High Court in the case of Sunderlal and Anr. and decision in the case of CIT Vs. Ghanshyam. Aggrieved with the order of Ld.CIT(A) the assessee filed an appeal before ITAT. The Hon'ble ITAT did not go into the merits of the case and allowed the appeal of the assessee vide ITA Nos. 3861/Del/2016 dated 05/07/2021 relying on the judgment of the Hon'ble Bombay High Court in the case of CIT vs Trend Electronics (2015) 379 ITR 456 and CIT vs Videsh Sanchar Nigam Ltd. (2012) 340 ITR 66. 3. However, in this case the reason recorded was duly supplied well with in time to the Assessee. The decision of the Hon'ble ITAT is erroneous as the additions made by the AO have been deleted merely on a procedural technical ground stating therein that the AO had failed to comply with the mandatory requirement of disposing of the objection raised by the assessee to the re-opening of the assessment. The AO did comply with the legal requirements. Accordingly, there being a mistake in the order passed by ITAT, a Miscellaneous Application is being filed for enabling correction of the mistake. The Hon'ble ITAT while duly following the decision of the jurisdictional High Court should has decided the appeal in favour of Revenue or at the extreme may has remanded the MA Nos.255 & 256/Del/2022 3 matter back to the AO. Hence, an apparent mistake of fact is seen to be present in the order of Hon'ble ITAT. Further, it is humbly requested that this Miscellaneous Application may kindly be adjudicated on merits by the Hon'ble ITAT by adjudicating the matter in the light of recent jurisdictional High Court decision in the case of Mahender Pal Narang Vs. CBDT reported in (2020) 120 taxmann.com 400 (Punjab & Haryana High court7or a the extreme restoring the matter back to the file of the Assessing Officer. 3. We have heard both the partiers and perused the records. We find that by way of this misc. application, Revenue seeks to get the order of the Tribunal reviewed which is not permissible under section 254 (2) of the Income-tax Act, 1961 (for short ‘the Act’). The Revenue has stated in the above misc. application that ITAT should have decided the appeal in favour of the Revenue or at the extreme, the matter may be remitted back to the Assessing Officer. These submissions made by the Revenue are plea of review in the garb of rectification which is not permissible in law. Section 254 (2) of the Act only permits rectification of mistake apparent from record. ITAT has no power to review its own order. A mistake apparent from record would be the one which is an obvious and patent mistake, which is apparent from record and not a mistake which requires to be established by arguments and a long drawn process of reasoning. we are of the considered opinion that there is no mistake apparent from record in this case, which is liable of rectification u/s 254(2). MA Nos.255 & 256/Del/2022 4 4. In our above conclusion, we drew support from Hon’ble Bombay High Court in the case of CIT vs. Ramesh Electric and Trading Co. 203 ITR 497 for the following proposition :- “In fact, we find that the decision in the case of Balaram v. Volkart Brothers, was not brought to the attention of the learned judges who decided the above case. In our view, the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified as an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions, as has been shown in the present case. Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. In the present case, the alleged failure, at least on one count, is attributed by the assessee to the Income-tax Officer and not the Tribunal. In our view, the Tribunal had no jurisdiction under section 254(2) to pass the second order.” 4. In the backdrop of the aforesaid discussion and precedent, we do not find any merit in these misc. applications and the same are accordingly dismissed. 5. In the result, the misc. applications filed by the Revenue are dismissed. Order pronounced in the open court on this 9 th day of July, 2024. Sd/- sd/- (ANUBHAV SHARMA) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 9 th day of July, 2024 TS MA Nos.255 & 256/Del/2022 5 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A) 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.