Sh. Sanjay Sharma, Greater Noida V. ITO, New Delhi

MA 270/DEL/2017

AI Insights

The case involves Sanjay Sharma, the assessee, who filed a miscellaneous application against the order of the Income Tax Appellate Tribunal dated 22.01.2016, which pertained to ITA No.6851/Del/2014. The assessee contended that an additional ground challenging the reopening of the assessment was not addressed in the earlier proceedings and sought to include it. However, the Tribunal, after considering the Supreme Court's decision in Reliance Telecom Limited, concluded that it did not have the jurisdiction to entertain the additional ground under Section 254(2) of the Income Tax Act, 1961, and thus dismissed the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 121767 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 8 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-01-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 05-01-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 20-04-2017
• Other Referred Cases: Reliance Telecom Limited in Civil Appeal No. 7110 and 7111 of 2021
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC” NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER MA No.270/Del/2017 (In ITA No.6851/Del/2014) Assessment Year : 2007-08 Sanjay Sharma F-41, Site-C, Surajpur, Industrial Area, Greater Noida PAN No.AOAPS3749A Vs. ITO Ward- 27 (1) New Delhi (Appellant) (Respondent) Assessee by : None Department by : Shri S.L.Anuragi, Sr. DR. Date of hearing : 06-01-2023 Date of pronouncement : 06-01-2023 O R D E R PER N.K BILLAIYA, AM : This Miscellaneous Application by the assessee is directed towards the order of this Tribunal in ITA No.6851/Del/2014 order dated 22.01.2016. 2. The assessee contends that the assessee has raised additional ground and also pointed out to the Bench that it was not raised before the CIT(A) and, therefore, it would be incorrect to say that the assessee did not raise nor pointed out to the Bench in respect of the additional ground taken challenging the reopening of the assessment. 3. None appeared on behalf of the assessee inspite of repetitive notices since 17.01.2022, therefore, I decided to proceed exparte. 4. The sum and substance of the miscellaneous application have been explained here in above. 5. I am of the considered view that the point raised by the assessee is beyond scope of the powers conferred upon the Tribunal u/s. 254 (2) of the Act. For this proposition I draw support from the decision of the Hon’ble Supreme Court in the case of Reliance Telecom Limited in Civil Appeal No. 7110 and 7111 of 2021. The relevant findings of the Hon’ble Supreme Court reads as under :- “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 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. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 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 apparent 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 the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored.” 7. Considering the facts of the case in hand in the light of the ratio laid down by the Hon’ble Supreme Court (supra) I do not find any merit in this miscellaneous application and the same is dismissed. 8. Decision announced in the open court in the presence of Sr. DR on 06.01.2023. Sd/- (N. K. BILLAIYA) ACCOUNTANT MEMBER Dated: 06-01-2023 *Neha* Copy of order to: - 1 ) The Appellant 2 ) The Respondent 3 ) The CIT 4 ) The CIT(A) 5 ) The DR, I.T.A.T., New Delhi//True Copy// Assistant Registrar ITAT, New Delhi