Savera Reality Pvt Ltd, New Delhi V. ACIT Circle-22(2), New Delhi

MA 27/DEL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2833 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 10-03-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 31-01-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 254(2); 22

Judgement Text

MA. 27/Del/2022 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “G” NEW DELHI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER A N D SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER Misc. App. No. 27/Del/2022 [ in आ.अ.सं . I.T.A No. 364/Del/2021 ] ( िनधाᭅरण वषᭅ/Assessment Year: 2012-13 ) Savera Reality Pvt. Ltd., C-28, Ground Floor, Panchsheel Enclave, New Delhi – 110 017. बनाम Vs. ACIT, Circle : 22 (2), New Delhi. PAN No. AALCS2625M अपीलाथŎ /Applicant ᮧ᭜यथᱮ/Respondent िनधाᭅᳯरतीकᳱओरसे /Assessee by : Shri V. K. Tulsian, Advocate; राज᭭वकᳱओरसे /Revenue by : Shri M. Baranwal, Sr. D. R.; सुनवाईकᳱतारीख/ Date of hearing : 11/03/2022 उ᳃ोषणाकᳱतारीख/Pronouncement on : 14/09/2022 आदेश / O R D E R PER C. N. PRASAD, J. M. : 1. With this Misc. application the assessee requests to recall the order of the Tribunal in ITA. No. 364/Del/2021 dated 11.11.2021 for the assessment year 2012-13. MA. 27/Del/2022 2 2. In the Misc. application filed by the assessee it is the contention that the order was passed by the Tribunal by side tracking all grounds and the submissions on merits even without considering the various arguments on facts causing great hardship to the assessee. It was contended that the order is contrary to facts as admittedly the assessee has kept the un-sold in-complete/complete flats as stock-in- trade and sold them from stock-in-trade as appeared from the financials and was not disputed by the Revenue authorities. The status of the property complete/in-complete are shown in the financials and are available in the paper book. Therefore, it was contended that the order being passed is contrary to the grounds raised/taken by the assessee, the order of the ITAT suffers from the apparent mistake of law and facts. 3. The ld. DR, on the other hand, submits that there is no mistake apparent on record in passing the order by the Hon’ble Tribunal. The Tribunal passed order after considering all the arguments of the assessee as well as the Revenue. 4. Heard rival submissions perused the order of the Tribunal and the contentions raised in the Misc. application. The contentions raised by the assessee in its Misc. application to recall the order of the Tribunal and to re-hear the entire matter on merits is nothing but to review its own order by the Tribunal. The Tribunal do not have the power to recall its order to re-adjudicate the issue on merits except to rectify a mistake apparent on record. The Hon’ble apex court in the case of CIT Vs. Reliance Telecom Ltd. (440 ITR 1) held that while considering the application under section 254(2) of the Income Tax Act, 1961 (the Act) the Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are MA. 27/Del/2022 3 only to rectify/correct any mistake apparent from the record. While holding so, it was observed as under:- “3.1 We have considered the order dated 18.11.2016 passed by the ITAT allowing the miscellaneous application in exercise of powers under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013. 3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the MA. 27/Del/2022 4 opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake parent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before MA. 27/Del/2022 5 the High Court, but later on the Assessee withdrew the same in the instant case.” 5. In view of the above, we hold that there is no mistake apparent on record in the order passed by the Tribunal in ITA. No. 364/Del/2021 dated 11.11.2021. 6. In the result, the Misc. application filed by the assessee is rejected. Order pronounced in the open court on : 14/09/2022. Sd/- Sd/- ( N. K. BILLAIYA ) ( C. N. PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 14/09/2022. *MEHTA* Copy forwarded to 1. Applicant; 2. Respondent; 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi. Date of dictation 12.09.2022 Date on which the typed draft is placed before the dictating member 13.09.2022 Date on which the typed draft is placed before the other member 14.09.2022 MA. 27/Del/2022 6 Date on which the approved draft comes to the Sr. PS/ PS 14.09.2022 Date on which the fair order is placed before the dictating member for pronouncement 14.09.2022 Date on which the fair order comes back to the Sr. PS/ PS 14.09.2022 Date on which the final order is uploaded on the website of ITAT 14.09.2022 Date on which the file goes to the Bench Clerk 14.09.2022 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the order