DCIT, New Delhi V. M/s. Vatika Ltd., New Delhi

MA 329/DEL/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4036 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 31-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Corroborative evidences
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. J.S.REDDY, ACCOUNTANT MEMBER M.A.-329/DEL/2014 (IN ITA NO.-1701/DEL/2012) (ASSESSMENT YEAR-2007-08) M/S VATIKA LTD., 621A, DEVIKA TOWER, 6, NEHRU PLACE, NEW DELHI-110019. (APPELLANT) VS DCIT, CENTRAL CIRCLE-20, NEW DELHI. (RESPONDENT) APPELLANT BY SH.C.S.AGGARWAL, SR. ADV, SH.RAVI PRATAP MALL, ADV. RESPONDENT BY SH. S.K.JAIN, ADDL. CIT DR ORDER PER DIVA SINGH, JM THE PRESENT M.A. HAS BEEN FILING BY THE ASSESSEE PR AYING FOR A RECALL OF THE ORDER DATED 12.12.2014 IN ITA NO.1701/DEL/2012 IN 2007-08 ASSESSMENT YEAR. 2. THE LD.AR INVITING ATTENTION TO PARA 2, 3 & 4 OF THE PETITION FILED RELYING UPON THE AFFIDAVIT DATED 31.12.2014 FILED BY MR. RA VI PRATAP MALL, ADV. ALONGWITH THE AFFIDAVIT DATED 22.12.2014 OF MR. D. B. JAIN SUBMITTED THAT A MISTAKE HAS CREPT IN THE AFORESAID ORDER FOR WHICH PURPOSES PRAYER FOR RECALL OF THE ORDER IS MADE. IT WAS SUBMITTED BY HIM THAT THE HONBLE BENCH HAS INADVERTENTLY REMANDED THE ORDER APPEAL AGAINST BY THE REVENUE TO THE FILE OF THE LEARNED CIT(A), WHEREAS AFTER THE CONCLUSION OF HEA RING ON 16.10.2014, IT HAD DATE OF HEARING 18.12.2015 DATE OF PRONOUNCEMENT 14.03.2016 M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 2 OF 20 PRONOUNCED ITS ORDER DISMISSING THE REVENUES APPEA L. IT IS THUS SUBMITTED THAT, HAVING PRONOUNCED ITS ORDER ON 16.10.2014, IN TERMS OF RUL E 34(5)(A) OF THE INCOME TAX TRIBUNAL RULES 1963, THE WRITTEN ORDER OF THE HONBLE TRIBUN AL DATED 12.12.2014 SUFFERS FROM MISTAKE APPARENT ON RECORD SINCE IT IS AT VARIANCE WITH THE ORDER PRONOUNCED ON 16.10.2014. ACCORDINGLY, IT WAS HIS SUBMISSION THAT A DECISION WHICH IS RENDERED CONTRARY TO A PRONOUNCEMENT MADE IN THE OP EN COURT WOULD CONSTITUTE A MISTAKE WHICH IS RECTIFIABLE. IN SUPPO RT OF THE PRAYER RELIANCE WAS PLACED ON CIT VS G.SAGAR SURI AND SONS [1990] 185 I TR 484 (DEL); AND CIT VS KAMDHENU 361 ITR 220 (DELHI) 2.1. IN SUPPORT OF THE MISCELLANEOUS APPLICATION RELIAN CE WAS ALSO PLACED ON THE AFFIDAVITS DATED 31.12.2014 AND 22.12.2014 FILE D BY SHRI RAVI PRATAP MALL, ADVOCATE AND SHRI D.B. JAIN WHO HAD BRIEFED THE SEN IOR ADVOCATE AND ARGUED THE APPEAL BEFORE THE CIT(A) RESPECTIVELY. EXTRACTS OF THESE TWO AFFIDAVITS ARE REPRODUCED HEREUNDER FOR THE SAKE OF COMPLETENESS. WHEREAS SHRI RAVI PRATAP MALL AVERS:- 8. THAT ON 09.09.2014, AFORESAID APPEAL WAS FIXED F OR CLARIFICATION AND ON THE AFORESAID DATE IT WAS ADJO URNED TO 30.09.2014 AND WAS FINALLY FIXED FOR CLARIFICATION ON 16.10.2014. 9. THAT ON 16.10.2014, SENIOR COUNSEL DELIBERATED U PON THE CLARIFICATION SOUGHT BY THE HONBLE BENCH AND AFTER BEING SATISFIED WITH THE SUBMISSIONS OF THE ASSESSEE, HONBLE TRIBU NAL IN TERMS OF THE RULE 34(5)(A) OF THE INCOME TAX APPELLANT TRIBU NAL RULES, 1963, PRONOUNCED ITS ORDER AND DISMISSED THE APPEAL OF TH E REVENUE. THAT DURING THE COURSE OF HEARING, SHRI. D.B.JAIN CHARTE RED ACCOUNTANT WAS ALSO PRESENT WHO HAS REPRESENTED THE ASSESSEE B EFORE THE LEARNED CIT(A). 2.2. THE EXTRACT FROM THE AFFIDAVIT FILED BY SHRI D.B. JAIN READS AS UNDER: M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 3 OF 20 2. THAT DURING THE COURSE OF THE HEARING ON 25.06. 2014, 09.09.2014, 30.09.2014 AND 16.10.2014 OF THE APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2007-2008 (ITA NO. 1701/DEL/2012), I WAS PRESENT BEFORE THE HON'BLE TR IBUNAL. 3. THAT, ON 25.06.2014 WHEN THE AFORESAID APPEAL WA S FIXED FOR HEARING, WAS ARGUED BY SHRI. C.S. AGGARWAL, SENIOR ADVOCATE (WHO WAS BEING ASSISTED BY SHRI. RAVI PRATAP MALL, ADVOC ATE), AND HEARING OF THE APPEAL WAS ALSO CONCLUDED ON 25.06.2 014. 4. THAT ON 09.09.2014, AFORESAID APPEAL WAS FIXED F OR CLARIFICATION AND ON THE AFORESAID DATE IT WAS ADJO URNED TO 30.09.2014 AND WAS FINALLY FIXED FOR CLARIFICATION ON 16.10.2014. THAT ON 16.10.2014, SENIOR COUNSEL DELIBERATED UPON THE CLARIFICATION SOUGHT BY THE HON'BLE BENCH AND AFTER BEING SATISFIED WITH THE SUBMISSIONS OF THE ASSESSEE, HON'BLE TRIBU NAL IN TERMS OF THE RULE 34(5)(A) OF THE INCOME TAX APPELLATE TRIBU NAL RULES, 1963, PRONOUNCED ITS ORDER AND DISMISSED THE APPEAL OF TH E REVENUE. 5. THAT LEARNED SR. DR DID NOT DISPUTE THE INCURRIN G OF THE EXPENDITURE NOR ANY QUERY WAS RAISED BY THE HON'BLE BENCH IN RESPECT OF THE INCURRING OF THE EXPENDITURE EITHER ON 25.06.2014 OR ON 16.10.2014 WHEN CLARIFICATION WAS SOUGHT. 2.3. RELYING ON THE AFORESAID FACTS, AFFIDAVITS AND PRO VISION OF LAW, IT WAS SUBMITTED THAT THE IMPUGNED ORDER SUFFERED FROM AN ERROR APPARENT ON THE FACE OF THE RECORD ON ACCOUNT OF WHICH IT MAY BE RECALLE D/MODIFIED. ON QUERY IT WAS CLARIFIED THAT NO APPEAL AGAINST THE ORDER HAS BEEN FILED BY THE ASSESSEE BEFORE THE HIGH COURT. 2.4. THE LD. AR WAS REQUIRED TO ADDRESS ON THE ISSU E OF PRONOUNCEMENT. IT WAS INFORMED THAT THE HONBLE SUPREME COURT, AS PE R OUR UNDERSTANDING HAS SETTLED THE ISSUE THAT THE DATE OF PRONOUNCEMENT IS WHEN THE ORDER IS DATED AND SIGNED BY BOTH THE MEMBERS OR JUDGES AS IT MAY BE. THE LD. SR. ADVOCATE SUBMITTED THAT HE WAS AWARE OF THE JUDGEMENTS AND T HEY WOULD NOT BE RELEVANT AS THE ISSUE IS ADDRESSED BY THE JUDGEMENT OF THE H ONBLE HIGH COURT IN THE CASE OF G.SAGAR SURI AND SONS (CITED SUPRA). 3. THE LD. SR. DR RELYING UPON THE IMPUGNED ORDER SUB MITTED THAT ALL ARGUMENTS, FACTS AND POSITION OF LAW HAVE BEEN CONS IDERED IN DETAIL BY THE ITAT M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 4 OF 20 IN ITS ORDER DATED 12.12.2014 WHILE ARRIVING AT A C ONCLUSION. READING OUT PARA 8 AND 8.1 OF THE ORDER IN TOTO IT WAS HIS SUBMISSION THAT IN THE ABSENCE OF ANY ERROR BEING POINTED OUT THE PETITION DESERVES TO BE DISMISSED. THE ORDER OF THE ITAT IT WAS SUBMITTED HAS BEEN PASSED CONSIDERING A LL FACTS AND ARGUMENTS. NO CASE, IT WAS ARGUED, HAS BEEN MADE OUT BY THE A SSESSEE TO SHOW WHAT FACT WAS IGNORED OR WAS INCORRECTLY RECORDED. THE ORDER IT WAS SUBMITTED BEING COMPLETE AND FINAL CANNOT NOW BE REVIEWED OR RE-CON SIDERED AND THUS CAN NEITHER BE MODIFIED NOR RECALLED. IT WAS SUBMITTED THAT THE ASSESSEE HAVING FAILED TO ADDRESS WHAT IS THE MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL AND HAS ONLY ARGUED THAT THE ISSUE ON FACTS SHOULD HAVE BEEN DECIDED IN ITS FAVOUR WHICH IT WAS SUBMITTED CANNOT BE A GROUND FOR A R ECALL IN THE PRESENT PROCEEDINGS. IT WAS HIS SUBMISSION THAT THE TRIBUN AL HAS BROUGHT OUT CLEARLY THE ABSENCE OF RELEVANT FACTS ON RECORD BEFORE THE CIT(A) WHICH FACT HAS NOT BEEN DISPUTED BY THE ASSESSEE. EVEN TODAY IT WAS AR GUED COMPLETE EVIDENCE IN SUPPORT OF ITS CLAIM HAS NOT BEEN PLACED ON RECORD BY THE ASSESSEE. THE FINDINGS OF THE CIT(A) THAT FULL FACTS WERE NOT AVA ILABLE BEFORE HIM HAS BEEN EXTRACTED BY THE TRIBUNAL IN THE ORDER UNDER CHALLE NGE. ACCORDINGLY AFTER CONSIDERING THE ARGUMENTS OF THE ASSESSEE AND THE P AST POSITION THEREON THE TRIBUNAL HAS CONCLUDED THAT THE CONCLUSION OF THE C IT(A) ARRIVED AT WITHOUT CONSIDERING THE FACTS ON RECORD HAD TO BE SET ASIDE . WHILE SO DIRECTING OPPORTUNITY TO PLACE NECESSARY EVIDENCES ON RECORD HAS BEEN GRANTED TO THE ASSESSEE. THUS, IN THE ABSENCE OF ANY RECTIFIABLE ERROR THE PETITION IT WAS ARGUED IS A DEVICE TO REARGUE THE APPEAL ON MERITS. IT WAS HIS SUBMISSION THAT M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 5 OF 20 THE POWER OF REVIEW IS NOT AVAILABLE WITH THE ITAT AND THE PERVERSITY IN THE CIT(A)S ORDER WHICH WAS UNDER CHALLENGE BY THE RE VENUE HAS BEEN ADDRESSED BY THE ITAT. THE PETITION ACCORDINGLY IT WAS SUBMI TTED DESERVES TO BE REJECTED. 4. THE LD. AR IN REPLY SUBMITTED THAT ORDER IS RECTIF IABLE U/S 254(2) OF THE ACT AS IT IS CONTRARY TO THE PRONOUNCEMENT MADE IN THE COURT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE RELEVANT PROVISION UNDER WHICH THE PRESENT PETITION HAS BEEN FILED IS SUB-SECTION (2) OF SECTION 254 OF THE INCOME TAX ACT,1961 WHICH READS AS UNDER: 254 (1) XXXXXXXXXXXXXXXXX (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING AN Y MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MADE SUCH AMENDMENTS IF THE MISTAKE IS BR OUGHT TO ITS NOTICE BY THE ASSESSEE OR THE AO. XXXXXXXXXX 5.1. HAVING HEARD THE ARGUMENTS AND CONSIDERING THE MIS CELLANEOUS APPLICATION ALONG WITH TWO AFFIDAVITS OF THE COUNSE LS, WE FIND THAT THE APPLICATION HAS NO MERIT AND DESERVES TO BE DISMISS ED. WE FIND FROM THE RECORD THAT THE BASIC SUBMISSION OF THE ASSESSEE THAT THE ORDER UNDER CHALLENGE IS INADVERTENTLY AT VARIANCE WITH THE PRONOUNCED ORD ER IS WRONG ON FACTS AS WE FIND ON CONSULTING THE RECORDS THAT NO PRONOUNCEMEN T DISMISSING THE APPEAL OF THE REVENUE WAS MADE. FURTHER WE FIND NO SUCH RECOR DING ON RECORD THAT THE REVENUES APPEAL IS DISMISSED ON MERITS. THE HEARI NG IN THE PRESENT CASE, AS IS ADMITTED BY ALL CONCERNED, STOOD CONCLUDED ON 25.06 .2014 WHEN NO PRONOUNCEMENT WAS MADE. HOWEVER, WHILE CONSIDERING THE FACT THAT THE LD. SR. ADVOCATE HAD SUBMITTED THAT CONSISTENTLY THE ISSUE HAS BEEN DECIDED IN ITS M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 6 OF 20 FAVOUR BY THE ITAT, THIS SUBMISSION WAS FOUND TO BE FACTUALLY INCORRECT AND CONTRARY TO RECORD. ACCORDINGLY, THE APPEAL WAS LIS TED FOR CLARIFICATION ON 22.08.2014 AND THE HEARING WAS FINALLY CONCLUDED ON 16.10.2014. THE SPECIFIC REASON ON ACCOUNT OF WHICH CLARIFICATION WAS FIXED IS SET OUT IN THE ORDER SHEET DATED 22.8.2014 AND IS EXTRACTED HEREUNDER FROM THE RECORD:- 22.08.2014 AT THE TIME OF HEARING SUBMISSIONS WERE MADE BY T HE SR.,DR THAT ON IDENTICAL ISSUE THE APPEALS ARE PENDING BEFORE T HE CIT(A) FOR 2005-06 AND 2006-07 A.YEARS. BEFORE US BY THE LD.A R ORDER DATED 26.06.2013 IN DCIT VS VATIKA TOWNSHIP P. LTD. (WHIC H STOOD MERGED WITH M/S VATIKA LANDBASE P. LTD. WHOSE NAME WAS CHA NGED TO M/S VATIKA LTD. ON 28 TH MAY 2007 THE MERGER WAS IN TERMS OF SCHEME DT. 01 ST APRIL 2004) IS RELIED UPON WHICH PERTAINS TO 2001- 02 A.YEAR. IN 2002-003 AND 2003-04 A.YEARS THE ISSUE IS STATED TO HAVE NOT ARISEN. THE POSITION OF 2004-05 A.YEAR IS UNCLEARE D. THE PARTIES TO ADDRESS THE PAST POSITION ON THE ISSUE. FIX FOR CLARIFICATION ON 09 TH SEP.2014 AT 2.30 PM. INFORM THE PARTIES. SD/- SD/- (J.S.REDDY) (DIVA SINGH) (EMPHASIS PROVIDED) 5.2. IN VIEW OF THE ABOVE ORDER DATED 22.08.2014 THE PAR TIES WERE HEARD ON 16.10.2014 IN RESPECT OF THE ABOVE CLARIFICATION. T HE LD. SR. ADVOCATE HAD ADDRESSED THE CORRECT FACTUAL POSITION ON THE SAID DATE BY CLARIFYING ON QUERY THAT THE IDENTICAL ISSUE IN 2005-06 AND 2006-07 ASS ESSMENT YEARS HAD BEEN RESTORED BY THE ITAT TO THE CIT(A) IN THE TWO IMMED IATELY PRECEDING ASSESSMENT YEAR. HENCE CONTRARY TO THE SUBMISSION MADE EARLIER ON BEHALF OF THE ASSESSEE THAT THE ISSUE STOOD CONCLUDED CONSISTENTLY IN ASSE SSEES FAVOUR BY THE ITAT IT WAS SUBMITTED ON CLARIFICATION THAT INFACT THE ISSU E DID NOT STAND CONCLUDED IN ASSESSEES FAVOUR BY CONSISTENT ORDERS OF THE ITAT IN THE EARLIER YEARS. CONSEQUENTLY THIS FACT STANDS ADDRESSED IN PARA 6.1 OF THE ORDER OF THE ITAT LEADING TO THE CONCLUSION DRAWN REQUIRING THAT THE ISSUE SHOULD BE RESTORED M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 7 OF 20 BACK TO THE FILE OF THE CIT(A) IN PARA 8 & 8.1. T HE RECORD WOULD SHOW THAT THE ASSESSEE HAS ARGUED BEFORE THE TAX AUTHORITIES THAT IN ITS NATURE OF BUSINESS COMMERCIAL EXIGENCIES MAY WARRANT THAT THE PARTIES AT TIMES MAY BE REQUIRED TO BE COMPENSATED. THE SAID GENERAL ARGUMENT HAS B EEN AGREED TO AND NOT DISPUTED IT IS THE LACK OF MATERIAL FACTS IN SUPPOR T OF THIS GENERAL ARGUMENT WHICH IS FOUND WANTING AND HAS BEEN CONSIDERED IN T HE ORDER UNDER CHALLENGE. IN THE YEAR UNDER CONSIDERATION, AS AN ILLUSTRATIO N, THE ASSESSEE HAD CITED BEFORE THE CIT(A) THAT RS. 3 LACS HAD TO BE COMPENS ATED TO A PARTY AS THE VERY SAME PREMISES HAD BEEN BOOKED BY TWO DIFFERENT PART IES INADVERTENTLY. THIS FACT STOOD DEMONSTRATED BY THE ASSESSEE AS NECESSARY FAC TS, FIGURES, DATES, AMOUNTS AND NAMES OF THE PARTIES WERE PROVIDED AND NOT DISP UTED. IT HAD ALSO BEEN CLAIMED THAT AT TIMES DESPITE THE FACT THAT THE ASS ESSEE HAS RECEIVED ADVANCES FOR A SPECIFIC AREA OR PIECE OF LAND WHICH ULTIMATE LY FOR SOME REASON OR THE OTHER COULD NOT BE DELIVERED. ACCORDINGLY, FOR MAINTAINI NG ITS REPUTATION IN THE MARKET THE PARTIES AT TIMES HAD TO BE COMPENSATED. SUBMISSIONS TO THE SAID EFFECT HAVE BEEN MADE BY THE ASSESSEE BEFORE THE T AX AUTHORITIES AND TAKEN NOTE OF BY THE CIT(A) AND FOUND ADDRESSED BY THE IT AT IN THE ORDER UNDER CHALLENGE WHICH HAVE NOT BEEN FAULTED WITH AND HAVE BEEN ACCEPTED, HOWEVER IT NEEDS TO BE DEMONSTRATED ON RECORD IN REGARD TO THE SPECIFIC INSTANCES, DATES, FIGURES, PARTIES AND AMOUNTS QUA EACH OF THE INSTAN CES OF CLAIMED SETTLEMENT. AS PER RECORD THE ASSESSEE BEFORE THE CIT(A) HAS SU BMITTED THAT SOME EVIDENCES ARE BEING FILED. THIS POSITION HAS NOT BEEN DISPUT ED BY THE ASSESSEE IN THE PRESENT PROCEEDINGS ALSO AND IS FOUND RECORDED IN P ARA 5.12 OF THE CITS ORDER. M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 8 OF 20 THE SAID FINDING HAS BEEN EXTRACTED BY THE ITAT IN THE ORDER UNDER CHALLENGE AND WE FIND THAT THE CORRECTNESS OF THIS FACT HAS N EITHER BEEN ASSAILED IN THE PRESENT PROCEEDINGS BY THE LD. AR NOR HAD IT BEEN A SSAILED AT THE STAGE OF HEARING THE APPEAL. WE ALSO NOTE THAT NO EFFORT HA S BEEN MADE TO PLACE ON RECORD ANY AFFIDAVIT ASSAILING THE FINDING OF THE CIT(A). THE ARGUMENTS OF THE LD. AR SPECIFICALLY TAKEN NOTE OF IN PARA 6.1 WOULD DEM ONSTRATE THAT THE FACTUAL POSITION WAS CLARIFIED BY THE LD. AR BY ADMITTING T HAT THE ISSUE IN THE TWO IMMEDIATELY PRECEDING ASSESSMENT YEAR WAS PENDING B EFORE THE CIT(A) AND NOT BEFORE THE ITAT AS HAD BEEN ORIGINALLY ARGUED. IT W AS CLARIFIED THAT THE ITAT IN THE EARLIER TWO YEARS HAD RESTORED THE ISSUE BACK TO THE CIT(A). THESE SUBMISSIONS OF THE ASSESSEE WHICH HAVE NOT BEEN ASS AILED TO BE INCORRECT IN THE PRESENT PROCEEDINGS ARE REPRODUCED FROM THE ORDER O F THE ITAT HEREUNDER: 6. THE LD. AR RELIES UPON THE ORDER IN THE CASE OF DCIT VS VATIKA TOWNSHIP PVT. LTD. IN ITA NO.-2832/DEL/2012 DATED 21.06.2013 (2001-02 ASSESSMENT YEAR) AND ANOTHER OR DER DATED 05.10.2007 FOR THE VERY SAME ASSESSMENT YEAR IN THE CASE OF DCIT VS VATIKA TOWNSHIP P. LTD. IN ITA NO.-1505/DEL/2005 . ON THE BASIS OF THE SAME IT WAS HIS SUBMISSION THAT THE ORDER OF THE ITAT DATED 05.10.2007 WHICH HAD RESTORED THE ISSUE TO THE FIL E TO THE CIT(A) WITH THE DIRECTION TO RE-EXAMINE THE SAME WAS AGAIN DECIDED IN ASSESSEES FAVOUR AND THIS ORDER CHALLENGED BY THE REVENUE WAS DISMISSED BY THE CO-ORDINATE BENCH VIDE HIS ORDER D ATED 21.06.2013 UPHOLDING THE RELIEF GRANTED BY THE CIT( A) IN THE SECOND ROUND ALSO. ACCORDINGLY ON THE BASIS OF THE SAME I T WAS HIS SUBMISSION THAT THE ISSUE IS COVERED IN ASSESSEES FAVOUR. 6.1. THE LD. AR WAS REQUIRED TO ADDRESS THE POSITION OF 2002-03 & 2006-07 ASSESSMENT YEARS WHICH AS PER THE SUBMISSIONS WAS PENDING BEFORE THE ITAT. THE LD. AR SUBMITTED THAT IN 2002-03 TO 2004-05 ASSESSMENT YEA RS THE ISSUE DID NOT ARISE ON ACCOUNT OF THE SMALLNESS OF THE AM OUNT CLAIMED AND WAS ALLOWED IN BOTH THESE YEARS AND IN 2003-04 ASSE SSMENT YEAR NO SUCH EXPENSE WAS CLAIMED. IN 2005-06 & 2006-07 ASSESSMENT YEARS IT WAS HIS SUBMISSION THAT THE ISS UE IS PENDING BEFORE THE CIT(A) AS THE ITAT HAS RESTORED THE ISSUE . (EMPHASIS SUPPLIED) M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 9 OF 20 5.3. CONSIDERING THE ABOVE SUBMISSIONS OF THE LD. AR THE FOLLOWING FINDINGS HAVE BEEN ARRIVED THAT IN PARA 8 AND 8.1 IN THE OR DER DATED 12.12.2014:- 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE PAST POSITION ON IDENTICAL CLAIMS CAN BE SAID TO BE COVERED IN ASSES SEES FAVOUR AND THE ARGUMENTS OF THE LD. SR. ADV. TO THE EXTEN T ARE FOUND TO BE CORRECT. IT IS SEEN THAT CONSIDERING THIS PAST POSITION THE LD. CIT(A) HAS ARRIVED AT A FINDING, HOWEVER IT IS SEEN THAT THE LD. CIT(A) HAS BEEN SWAYED BY THE PAST LEGAL POSITI ON ON THE ISSUE AND UNFORTUNATELY HAS NOT CARED TO CONSIDER T HE SAME ON FACTS. SIMPLY BECAUSE THE PAST PRACTICE DEMONST RATES THAT THE ASSESSEE IN ITS NATURE OF BUSINESS MAY REQUIRE TO COMPENSATE THE PARTIES TO THE EXTENT THE PARTIES FR OM WHOM ADVANCES HAVE BEEN RECEIVED COULD NOT FULFILL THE C OMMITMENT WARRANTING PAYMENT OF COMPENSATION DOES NOT MEAN TH AT ALL CLAIMS WITHOUT VERIFICATION HAVE TO BE ALLOWED. A PERUSAL OF PARA 5.12 OF THE IMPUGNED ORDER SHOWS THAT AS PER A SSESSEES SUBMISSIONS ONLY SOME OF THE DOCUMENTS RELATABLE TO THE ISSUE WERE MADE AVAILABLE TO THE CIT(A) BASED ON WHICH FI NDING HAS BEEN ARRIVED AT. THE SPECIFIC PARA IS REPRODUCED H EREUNDER:- 5.12. THE APPELLANT ALSO FILED A DETAIL OF PAYMENT MADE BY IT AS COMPENSATION AND ALSO PLACED ON RECORD COPIES OF SOME OF THE DOCUMENTS EXECUTED FOR PAYMENT OF COMPENSATI ON AND CANCELLATION OF BOOKINGS MADE BY IT. 8.1. THE SAID APPROACH OF THE CIT(A) ON FACTS CANNOT BE UPHELD. THE CIT(A) IS NECESSARILY REQUIRED TO LOOK AT THE COMPLETE EVIDENCE NECESSARY FOR ARRIVING AT A CONCL USION. THE ISSUE ACCORDINGLY IS RESTORED BACK TO HIS FILE. TH E ASSESSEE IS GRANTED LIBERTY TO PLACE ALL NECESSARY EVIDENCES BE FORE THE CIT(A) IN SUPPORT OF ITS CLAIM AS THE SAME EVIDENTLY HAS NOT BEEN DONE. THE CIT(A) SHALL THEREAFTER PASS A SPEAKING ORDER IN AC CORDANCE WITH LAW AFTER DULY CONFRONTING THE SAME TO THE AO. (EMPHASIS SUPPLIED) 5.4. HAVING GONE THROUGH THE ENTIRE FACTS ON RECORD AN D THE AVERMENTS MADE IN THE AFFIDAVITS FILED ALONGWITH MA, IT IS EVIDENT THAT THE ASSESSEE HAS FAILED TO POINT OUT ANY INCORRECT FACT IN THE ORDER WHICH HAS VITIATED THE CONCLUSION. 5.5. ADDRESSING THE LEGAL PRECEDENT RELIED UPON BY TH E ASSESSEE IN SUPPORT OF THE MISCELLANEOUS PETITION NAMELY THE DECISION OF T HE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS G.SAGAR SURI & SONS (CITED SU PRA), WE FIND ON M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 10 OF 20 CONSIDERATION OF THE RATIO LAID DOWN BY THE HONBLE HIGH COURT THEREIN THAT IT HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE AS THE FACTS ARE ENTIRELY DISTINGUISHABLE. 5.5.1. A PERUSAL OF THE SAID DECISION WOULD SHOW THAT THE ITAT THEREIN PASSED ORDER DATED 25.08.1983 REJECTING THE EXPLANATION OF THE ASSESSEE. THEREAFTER AN MA WAS FILED BY THE ASSESSEE STATING THAT THERE WAS A MISTAKE APPARENT ON THE RECORD AS THE TRIBUNAL AT THE TIME OF HEARING H AD ANNOUNCED THAT THE CASH CREDIT OF RS.25,0000/- WOULD BE DELETED. THE MA WA S HEARD AFTER ISSUANCE OF NOTICE TO THE DEPARTMENT. THE TRIBUNAL VIDE ITS ORDER DATED 21.01.1984 AFTER HEARING THE PARTIES FOUND THAT A MISTAKE HAD OCCURRED WHICH WAS RECTIFIED IN THE SAID ORDER. THE REVENUE ASSAILED THE CORRECTNESS OF THE ORDER DATED 31.01.1984. THE SAID APPLICATION U/S 256(2) WAS DISMISSED BY THE HONBLE HIGH COURT HOLDING THAT THE TRIBUNAL FINDIN G THAT THE WRITTEN ORDER WAS AT VARIANCE TO THE ORDER PRONOUNCED RECTIFIED ITS M ISTAKE. THIS DECISION COULD NOT BE FAULTED WITH. 5.5.2. THE HONBLE HIGH COURT PROCEEDED TO THEREAFTER ADDR ESS THE REVENUES GRIEVANCE NAMELY THAT THE DECISION OF THE ITAT WAS INCORRECT ON FACTS. THE HONBLE HIGH COURT REJECTED THE REVENUES GROUND HO LDING THAT IT WAS ESSENTIALLY A QUESTION OF FACTS. THUS, EVEN ON MER ITS, THE REASONING OF THE ITAT ASSAILED BY THE REVENUE WAS REJECTED. DISMISSING TH E REVENUES CONTENTION, THE HONBLE HIGH COURT HELD THAT WE FIND THAT THIS IS A FINDING OF FACT AND EVEN IF THE FINDING BE WRONG, IT IS NOT POSSIBLE TO COME TO THE CONCLUSION THAT THE SAID FINDING IS PERVERSE OR NOT SUPPORTED BY ANY MATERIAL ON M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 11 OF 20 RECORD. THE TRIBUNAL HAS ACCEPTED THE VERSION OF T HE ASSESSEE AND THE CONCLUSION OF THE TRIBUNAL DOES NOT INVOLVE ANY PRI NCIPLE OF LAW . 5.6. THE SAID DECISION WE FIND DOES NOT LAY DOWN ANY G ENERAL PRINCIPLE THAT EVEN WHERE PRONOUNCEMENT HAS BEEN MADE AFTER FACTS HAD BEEN WRONGLY APPRECIATED OR MIS-REPRESENTED IN THE COURSE OF THE HEARING BEFORE THE TRIBUNAL SUCH WRONG PRONOUNCEMENT AFTER A HEARING WOULD BIND THE TRIBUNAL TO PASS A WRONG ORDER ON FACTS. IN THE FACTS OF THE PRESENT C ASE THERE WAS NO PRONOUNCEMENT THAT THE REVENUES APPEAL IS BEING DI SMISSED AND FOR THE REASONS SET OUT IN THE ORDER IT COULD NOT BE SO. 5.7. THUS, ON CONSIDERATION OF THE ABOVE DECISION, WE A RE OF THE VIEW THAT FOR THE DECISION TO APPLY, WE MUST FIRST FIND THAT THE DECISION ON 16.10.2014 WAS ANNOUNCED IN ASSESSEES FAVOUR. THE POSITION IS NO T SO. THE REASONS WHY THE SAID CONCLUSION WAS NOT ARRIVED AT ARE SET OUT IN T HE ORDER UNDER CHALLENGE AS THE FINDING ARRIVED AT BY THE CIT(A) FOR WANT OF FU LL FACTS WAS A PERVERSE FINDING. THE POSITION WAS CORRECTED AND THE ISSUE WAS RESTOR ED BACK TO THE SAID AUTHORITY WITH A DIRECTION TO ARRIVE AT A CONCLUSIO N CONSIDERING THE COMPLETE FACTS. NOTING THAT FULL FACTS WERE NOT PLACED BY T HE ASSESSEE ITSELF OPPORTUNITY TO PLACE SUPPORTING EVIDENCE BEFORE THE CIT(A) HAD BEEN PROVIDED TO THE ASSESSEE. NO INFIRMITY IN THE DIRECTION GIVEN OR T HE CONCLUSION ARRIVED AT HAS BEEN POINTED OUT EXCEPT THAT ACCORDING TO THE ASSES SEE THE ORDER WAS PRONOUNCED IN ITS FAVOUR WHICH ON FACTS IS FOUND TO BE INCORRECT. 5.8. HAVING SO DECIDED IT MAY NOT BE NECESSARY FOR US T O CONSIDER THE RULES APPLICABLE TO PRONOUNCEMENT IN THE FACTS OF THE PRE SENT CASE. HOWEVER, THE LD. M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 12 OF 20 AR IN THE AFFIDAVIT FILED BY THE BRIEFING COUNSEL H AS RELIED UPON TO RULE 34(5)(A) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. HENCE, FOR READY REFERENCE THE RELEVANT RULE IS REPRODUCED HEREUNDER: 34. (1) THE ORDER OF THE BENCH SHALL BE IN WRITING AND SHA LL BE SIGNED AND DATED BY THE MEMBERS CONSTITUTING IT. (2) THE MEMBERS CONSTITUTING THE BENCH OR, IN THE EVENT OF THEIR ABSENCE BY RETIREMENT OR OTHERWISE, THE VICE PRESID ENT, SENIOR VICE- PRESIDENT OR THE PRESIDENT MAY MARK AN ORDER AS FIT FOR PUBLICATION. (3) WHERE A CASE IS REFERRED UNDER SUB-SECTION (4) OF SECTION 255, THE ORDER OF THE MEMBER OR MEMBERS TO WHOM IT IS RE FERRED SHALL BE SIGNED AND DATED BY HIM OR THEM, AS THE CASE MAYBE. (4) THE BENCH SHALL PRONOUNCE ITS ORDERS IN THE COU RT. [HOWEVER, WHERE THE BENCH IS NOT FUNCTIONING OR FOR ANY OTHER GOOD REASON THE PRONOUNCEMENT OF ORDER IN THE COURT IS N OT POSSIBLE OR PRACTICABLE, A LIST OF SUCH ORDER(S) SHALL BE PREPA RED DULY SIGNED BY THE MEMBERS SHOWING THE RESULT OF THE APPEAL AND TH E SAME WOULD BE PUT ON THE NOTICE BOARD OF THE BENCH AND IT SHAL L BE DEEMED PRONOUNCEMENT OF THE ORDER.] (5) THE PRONOUNCEMENT MAY BE IN ANY OF THE FOLLOWIN G MANNERS:- (A) THE BENCH MAY PRONOUNCE THE ORDER IMMEDIATELY ON THE CONCLUSION OF THE HEARING. (B) IN CASE WHERE THE ORDER IS NOT PRONOUNCED IMM EDIATELY ON THE CONCLUSION OF THE HEARING, THE BENCH SHALL G IVE A DATE FOR PRONOUNCEMENT. (C) IN A CASE WHERE NO DATE OF PRONOUNCEMENT IS G IVEN BY THE BENCH, EVERY ENDEAVOUR SHALL BE MADE BY THE BEN CH TO PRONOUNCE THE ORDER WITHIN 60 DAYS FROM THE DATE ON WHICH THE HEARING OF THE CASE WAS CONCLUDED BUT, WHEREIN IT IS NOT PRACTICABLE SO TO DO ON THE GROUND OF EXCEPTIONAL A ND EXTRAORDINARY CIRCUMSTANCES OF THE CASE, THE BENCH SHALL FIX A FUTURE DAY FOR PRONOUNCEMENT OF THE ORDER, AND SUCH DATE SHALL NOT ORDINARILY BE A DAY BEYOND A FURTHER PERI OD OF 30 DAYS AND DUE NOTICE OF THE DAY SO FIXED SHALL BE GI VEN ON THE NOTICE BOARD. (6) THE ORDER OF THE BENCH SHALL ORDINARILY BE PRO NOUNCED BY THE MEMBERS WHO HEARD THE APPEAL. HOWEVER, IF THE SAID MEMBERS OR ANY OF THEM IS OR ARE NOT AVAILABLE FOR PRONOUNCEME NT FOR ANY REASON, THEN THE ORDER WILL BE PRONOUNCED BY SUCH M EMBER OR MEMBERS AS MAY BE NOMINATED BY THE PRESIDENT, SENIO R VICE- PRESIDENT, VICE PRESIDENT, OR SENIOR MEMBER, AS THE CASE MAY BE. (7) IN THE CASE WHERE THE ORDER IS READY IN EVERY RESPECT AND CAN BE MADE AVAILABLE TO THE PARTIES, THE BENCH MAY ADV ANCE THE DATE OF PRONOUNCEMENT AND PUT THIS INFORMATION ON THE NOTIC E BOARD AND THE ORDER SHALL BE PRONOUNCED ACCORDINGLY. (8) IN A CASE WHERE THE ORDER CANNOT BE PRONOUNCED ON THE DATE GIVEN, THE DATE OF PRONOUNCEMENT MAY BE DEFERRED, S UBJECT TO SUB- M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 13 OF 20 RULE (5)(C) ABOVE, TO A FURTHER DATE AND INFORMATIO N THEREOF SHALL BE GIVEN ON THE NOTICE BOARD.] 5.9. AT THE COST OF STATING THE OBVIOUS, UNDER THE I NCOME TAX ACT, 1961 EVEN A WRITTEN ORDER UNDER SECTION 254(1) CAN BE AMENDED . THE POWERS HAVE BEEN SO VESTED WITH A VIEW TO ENABLE THE TRIBUNAL TO REC TIFYING ANY MISTAKE APPARENT FROM THE RECORD. IN THE FACTS OF THE PRESENT CASE A LTHOUGH WE HAVE FOUND THAT THERE IS NO MISTAKE APPARENT ON RECORD, WE ARE OF T HE VIEW THAT IT MAY BE RELEVANT TO REFER TO SOME OF THE DECISIONS WHICH HA VE ADDRESSED THE ISSUE OF BINDING NATURE OF AN UNSIGNED PRONOUNCED JUDGMENT. ON THE QUESTION WHETHER AN UNSIGNED PRONOUNCED JUDGMENT IS A VALID AND BIND ING JUDGMENT OR NOT THERE WAS A DIVERGENCE OF OPINION AMONGST VARIOUS H IGH COURTS. WHEREAS THE HIGH COURT OF ALLAHABAD, APART FROM THE HIGH COURT OF HIMACHAL PRADESH AND KERALA HAD TAKEN THE VIEW THAT AFTER JUDGMENT IS OR ALLY PRONOUNCED IN THE OPEN COURT, BEFORE IT IS SIGNED AND SEALED, IT CAN BE CH ANGED, A FEW OTHER HIGH COURTS, IN CASES WHERE DICTATION IN OPEN COURT HAVE BEEN MADE ON THE BASIS OF THE DICTATION SO MADE HAVE HELD THAT THE A NNOUNCEMENT MADE IN THE OPEN COURT IS BINDING. HOWEVER EVEN THERE THE BASIC FACTUM HAS BEEN THAT DICTATION HAS BEEN GIVEN IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. IN THE FACTS OF THE PRESENT CASE THE DICTATION OF THE ORDER HAS NOT BEEN IN THE OPEN COURT AND THE FILE FOR DICTATING THE OR DER WAS PLACED BEFORE THE BENCH BY THE REGISTRY ONLY AFTER THE CARRYING OUT T HE PROCEDURES OF STAMPING AND ENTERING THE NAMES OF THE APPEARING PARTIES, DA TE ETC. BY THE BENCH CLERK AFTER WHICH AS CONSTITUENT MEMBERS OF THE BENCH THE ORDER SHEET WAS INITIALED. THE SIGNING OF THE ORDER SHEET TOOK PLACE IN THE C HAMBER ON 16.10 2014, AND M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 14 OF 20 THE ORDER WAS DICTATED IN CHAMBER ON 20.11.2014 AND ON FINALIZING THE DRAFT ORDER IT WAS PLACED BEFORE THE OTHER MEMBER ALSO IN CHAMBER. THUS NO DICTATION WAS GIVEN IN THE OPEN COURT IN THE PRESEN T CASE. NEVERTHELESS, REVERTING TO THE QUESTION CONSIDERED BY VARIOUS COU RTS ON THE VALIDITY AND BINDING NATURE OF UNSIGNED ORDERS DICTATED IN COURT REFERENCE TO THE FOLLOWING JUDGMENTS MAY BE MADE : (I) IN DENI MADHO PRASAD SINGH VS. ADIT. 1959 AIR (ALL) 41 6 , INTERPRETING THE PROVISION CONTAINED IN RULE 3, ORD ER 20 OF THE CODE, IT WAS HELD BY THE DIVISION BENCH THAT FOR A JUDG MENT TO BECOME FINAL IT MUST BE SIGNED AND DATED AT THE TIME OF IT S PRONOUNCEMENT AND TILL THE JUDGMENT PRONOUNCED OR DICTATED IN THE OPEN COURT IS NOT SIGNED AND DATED, THE CASE CANNOT BE SAID TO HAVE B EEN LEGALLY DISPOSED OFF. (II) IN SANGAM LAL VS. RENT CONTROL AND EVICTION OFFICER, ALLAHABAD 1966 AIR (ALL) 221, THE QUESTION FOR CONS IDERATION BEFORE THE FULL BENCH OF THE ALLAHABAD HIGH COURT WAS: 'WHETHER AFTER A JUDGEMENT HAS BEEN ORALLY DICTATED /PRONOUNCED IN OPEN COURT BUT BEFORE IT IS SIGNED AND SEALED, IT C AN BE COMPLETELY CHANGED' AFTER HOLDING A JUDGEMENT PRONOUNCED BUT NOT SIGNED TO BE A VALID JUDGEMENT, THE ABOVE QUESTION WAS ANSWERED IN THE F OLLOWING TERMS: 'A JUDGEMENT WHICH HAS BEEN ORALLY DICTATED IN OPEN COURT CAN BE COMPLETELY CHANGED BEFORE IT IS SIGNED AND SCALE D PROVIDE NOTICE IS GIVEN TO ALL THE PARTIES CONCERNED AND TH EY ARE HEARD BEFORE THE CHANGE IS MADE'. IN THE FACTS OF THE PRESENT CASE THERE WAS NO DICTA TION IN THE OPEN COURT AND EVEN OTHERWISE THERE WAS NO PRONOUNCEMENT MADE THAT THE REVENUES APPEAL WAS BEING DISMISSED. THE OCCA SION TO ISSUE NOTICE TO THE PARTIES IN THE CIRCUMSTANCES DOES NOT ARISE. (III) A LEARNED SINGLE JUDGE OF THE HIMACHAL PRADES H HIGH COURT IN RAMJI DASS VS. INDER. 1975 ILR (HP) 543 WHILE CONSIDERING THE M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 15 OF 20 SCOPE AND AMBIT OF ORDER 20, RULE 1 AND 3 AND ORDER 43, RULE 31 OF THE CODE HELD THAT THE ACT OF THE JUDGE IN SIGNING AND DATING THE JUDGMENT IS REGARDED BY LAW AS AN ACT PERFECTING TH E JUDGEMENT. BOTH ORDER 20, RULE 30 ORDER 41, RULE 31 OF THE CO DE REQUIRE THE JUDGE TO SIGN AND DATE THE JUDGEMENT ON PRONOUNCEME NT IN OPEN COURT. THE REQUIREMENT IS NOT A MERE FORMALITY. IT IS AN ACT WHICH MAKES THE JUDGEMENT COMPLETE. IT WAS FURTHER HELD T HAT SO LONG AS A JUDGEMENT IS NOT PERFECTED BY SIGNING IT, IT WOULD APPEAR THAT IT CAN ALWAYS BE WITHDRAWN OR ALTERED OR MODIFIED. UNTIL P ERFECTED IT IS NOT A FINAL JUDGEMENT. (IV) IN HIGH COURT ON ITS OWN MOTION VS. SUNDER SINGH 19 86 AIR. (HP) 47 DEALING WITH A SITUATION, WHERE THE JUDGEMENT IN C IVIL APPEAL COULD NOT BE SIGNED BY THE ADDITIONAL DISTRI CT JUDGE BEFORE HIS DEATH, FOLLOWING THE RATIO LAID DOWN IN RAMJI D ASS VS. INDER AND ANOTHER, THE UNSIGNED JUDGEMENT AVAILABLE ON RECORD (THOUGH SHOWN TO HAVE BEEN PRONOUNCED BY THE APPELLATE JUDGE BEFO RE HIS DEATH) WAS HELD TO BE A MERE DRAFT JUDGEMENT TO WHICH NO F INALITY WAS ATTACHED. IT WAS REITERATED THAT SIGNING OF THE JUD GEMENT WAS NOT A MERE FORMALITY. IT IS AN ACT WHICH MAKES THE JUDGEM ENT PERFECT AND COMPLETE. MERE PRONOUNCEMENT OF THE JUDGEMENT HAD N OT THE EFFECT OF CONVERTING THE DRAFT JUDGEMENT INTO THE JUDGEMEN T OF THE COURT TO WHICH FINALITY WAS ATTACHED. (V) THE HIGH COURT KERALA ALSO IN DEVASSY MANJOORAN VS. REGISTRAR, UNIVERSITY OF KERALA, 1975 KLT 348, HAS HELD THAT BY THE TERMS CONTAINED IN THE RULES CONTAINED IN ORDER 20 OF THE CODE, A JUDGEMENT WILL BECOME FINAL ONLY WHEN IT IS SIGNED. IT IS THE SIGNATURE IN THE JUDGEMENT THAT MAKES THE JUDGEMENT INVIOLABL E AND UNALTERABLE AND AS LONG AS THE JUDGEMENT HAS NOT BE SIGNED IT IS CERTAINLY POSSIBLE FOR THE JUDGES WHO HEARD THE CAS E TO HAVE THE QUESTION RE-EXAMINED AND EXPRESS THEIR FINAL CONCLU SION IN THE JUDGEMENT. M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 16 OF 20 5.10. THE CONTROVERSY WHETHER A JUDGEMENT THAT HAS BEE N PRONOUNCED BUT NOT SIGNED CAN BE ALTERED AND MODIFIED, WAS FIRST R EFERRED TO IN THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF SURENDRA SINGH VS. STATE OF UP- 1954, SCR 330. IT WAS A CASE WHERE THE JUDGEMENT HAD BEEN SIGNED B UT NOT PRONOUNCED IN THE OPEN COURT. A PERUSAL OF THE SAME AS WOULD BE EVIDENT FROM THE LAST PARAGRAPH OF THE FOLLOWING EXTRACT FROM TH E JUDGEMENT OF BOSE. J WOULD SHOW THAT THE PROVISION OF ORDER 20, RULE 3 OF THE CPC IT WAS HELD PERMITTED ALTERATION OR ADDITIONS TO A JUDGEMENT SO LONG AS I T IS NOT SIGNED :- 'AFTER THE JUDGEMENT HAS BEEN DELIVERED PROVISION I S MADE FOR REVIEW. ONE PROVISION IS THAT IT CAN BE FREELY ALTERED ON A MENDED OR EVEN CHANGED COMPLETELY WITHOUT FURTHER FORMALITY E XCEPT NOTICE TO THE PARTIES AND A REHEARING ON THE POINT OF CHANGE SHOULD THAT BE NECESSARY PROVIDED IT HAS NOT BEEN S IGNED. ANOTHER IS THAT AFTER SIGNATURE A REVIEW PROPERLY S O CALLED WOULD LIE IN CIVIL CASES BUT NONE IN CRIMINAL BUT THE REVIEW, WH EN IT LIES, IS ONLY PERMITTED ON VERY NARROW GROUNDS.' 5.11. THE ABOVE OBSERVATION AS ALSO THE CONTROVERSY IN T HE PRESENT CASE, HAS THEREAFTER BEEN CONSIDERED AND SET AT REST BY THE HON'BLE SUPREME COURT IN VINOD KUMAR SINGH VS. BANARAS HINDU UNIVERSITY, 1988 AIR SC 371. 5.11.1. IN THE SAID CASE A WRIT PETITION PERTAINING TO ADM ISSION TO THE MASTER COURSE IN LAW FOR THE ACADEMIC YEAR 1983-84 WAS HEA RD BY A DIVISION BENCH OF THE ALLAHABAD HIGH COURT. THE LD. JUDGES DICTATED THE JUDGEMENT IN OPEN COURT, ALLOWING THE WRIT PETITION DIRECTING THE UNIVERSITY TO ADMIT THE WRIT PETITION. THE WRIT PETITIONER THEREAFTER, APPLIED FOR A COPY OF THE JUDGEMENT AND WAS INFORMED THAT THE MATTER HAS AGAIN BEEN POSTED FOR HEARING AND WOULD BE HEARD AFRESH. INITIALLY THE SAME BENCH WHICH RENDER ED THE JUDGEMENT RE-HEARD THE MATTER AND SUBSEQUENTLY, IT WAS POSTED FOR HEAR ING BEFORE ANOTHER DIVISION M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 17 OF 20 BENCH. THE OTHER DIVISION BENCH BEFORE WHICH THE WR IT PETITION WAS HEARD DISMISSED THE WRIT PETITION. IN THE APPEAL BEFORE T HE HON'BLE SUPREME COURT, THE APPELLANT QUESTIONED THE JUDGEMENT OF THE SECON D DIVISION BENCH ON THE GROUND THAT JUDGEMENT ONCE PRONOUNCED IN THE OPEN C OURT BY THE FIRST DIVISION BENCH BECAME OPERATIVE EVEN WITHOUT THE SI GNATURE OF LD. JUDGE AND CANNOT BE ALTERED THEREAFTER, AND THE JUDGEMENT OF THE SECOND DIVISION BENCH WAS UNSUSTAINABLE. 5.11.2. THE HON'BLE SUPREME COURT ALLOWED THE APPEAL IN TH E PECULIAR FACTS OF THE CASE AND SET ASIDE THE JUDGEMENT OF THE SECOND DIVISION BENCH AND HELD THAT THE JUDGEMENT OF THE FIRST DIVISION BENCH, WHICH WAS DICTATED IN THE OPEN COURT, THOUGH NOT SIGNED, WAS A VALID AND EFFE CTIVE JUDGEMENT. 5.11.3. THE AFORESAID JUDGEMENT OF THE HON'BLE SUPREME COU RT SETTLES THE CONTROVERSY BOTH IN A CASE WHERE THE JUDGEMENT HAS BEEN SIGNED BUT NOT PRONOUNCED IN THE OPEN COURT AND A JUDGEMENT THAT H AD BEEN PRONOUNCED BUT NOT SIGNED. HOWEVER, THE MATERIAL FACT IN BOTH THE SITUATIONS I S THE FACTUM OF DICTATION OF THE JUDGEMENT IN THE OPEN COURT. IN THE FACTS OF THE PRESENT CASE THERE WAS NO DICTATION GIVEN IN THE OPEN COURT AND THERE IS NO PRONOUNCEMENT THAT THE REVENUES APPEAL IS DISMISSE D. 5.11.4. THE AFORESAID JUDGEMENT OF THE HON'BLE SUPREME COU RT LAYS DOWN AN EXCEPTION TO THE GENERAL PROPOSITION OF LAW AND AFF IRMED THE INHERENT POWER OF A COURT TO ALTER OR MODIFY A JUDGEMENT PRONOUNCED BY WAY OF DICTATION IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES BUT NOT S IGNED, WITH A CAVEAT THAT M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 18 OF 20 SUCH POWER SHOULD BE EXERCISED JUDICIALLY, SPARINGL Y AND FOR ADEQUATE REASONS.. WHILE DEALING WITH THE SAID QUESTION THE HON'BLE SU PREME COURT HELD THUS: '7. BUT, WHILE THE COURT HAS UNDOUBTED POWER T O ALTER OR MODIFY A JUDGEMENT, DELIVERED BUT NO SIGNED, SUCH POWER SHOU LD BE EXERCISED JUDICIALLY, SPARINGLY AND FOR ADEQUATE REASONS. WHE N A JUDGEMENT IS PRONOUNCED IN OPEN COURT, PARTIES ACT ON THE BASIS THAT IT IS THE JUDGEMENT OF THE COURT AND THAT THE SIGNING IS A FO RMALITY TO FOLLOW. 8. WE HAVE EXTENSIVELY EXTRACTED FROM WHAT BO SE. J SPOKE IN THIS JUDGEMENT TO IMPRESS UPON EVERYONE THAT PRONOUNCEME NT OF A JUDGEMENT IN COURT WHETHER IMMEDIATELY AFTER THE HE ARING OF AFTER RESERVING THE SAME TO BE DELIVERED LATER SHOULD ORD INARILY BE CONSIDERED AS THE FINAL ACT OF THE COURT WITH REFER ENCE TO THE CASE. BOSE. J EMPHASISED THE FEATURE THAT AS SOON AS THE JUDGEMENT IS DELIVERED THAT BECOMES THE OPERATIVE PRONOUNCEMENT OF THE COURT. THAT WOULD MEAN THAT THE JUDGEMENT TO BE OPERATIVE DOES NOT AWAIT SIGNING THEREOF BY THE COURT. THERE MAY BE EXCEPTIONS TO THE RULE, FOR INSTANCE, SOON AFTER THE JUDGEMENT IS DICTATED IN OPEN COURT, A FEATURE WHICH HAD NOT BEEN PLACED FOR CONS IDERATION OF THE COURT IS BROUGHT TO ITS NOTICE BY COUNSEL OF ANY OF THE PARTIES OR THE COURT DISCOVERS SOME NEW FACTS FROM THE RECORD. IN SUCH A CASE THE COURT MAY GIVE DIRECTION THAT TH E JUDGEMENT WHICH HAS JUST BEEN DELIVERED WOULD NOT BE EFFECTIV E AND THE CASE SHALL BE FURTHER HEARD. THERE MAY ALSO BE CASE S THOUGH THEIR NUMBER WOULD BE FEW AND FAR BETWEEN WHERE W HEN THE JUDGEMENT IS PLACED FOR SIGNATURE THE COURT NOT ICES A FEATURE WHICH SHOULD HAVE BEEN TAKEN INTO ACCOUNT. IN SUCH A SITUATION THE MATTER MAYBE PLACED FOR FURTHER CONSI DERATION UPON NOTICE TO THE PARTIES. IF THE JUDGEMENT DELIV ERED IS INTENDED NOT BE OPERATIVE, GOOD REASONS SHOULD BE G IVEN. 9. ORDINARILY JUDGEMENT IS NOT DELIVERED TILL THE HEARING IS COMPLETE BY LISTENING TO SUBMISSION OF COUNSEL AND PERUSAL OF RECORDS AND A DEFINITE VIEW IS REACHED BY THE COURT IN REGA RD TO THE CONCLUSION. ONCE THAT STAGE IS REACHED AND THE COUR T PRONOUNCES THE JUDGMENT, THE SAME SHOULD NOT BE REOPENED UNLESS TH ERE BE SOME EXCEPTIONAL CIRCUMSTANCES OR A REVIEW IS ASKED FOR AND IS GRANTED. WHEN THE JUDGEMENT IS PRONOUNCED, PARTIES PRESENT I N THE COURT KNOW THE CONCLUSION IN THE MATTER AND OFTEN ON THE BASIS OF SUCH PRONOUNCEMENT, THEY PROCEED TO CONDUCT THEIR AFFAIR S. IF WHAT IS PRONOUNCED IN COURT IS NOT ACTED UPON, CERTAINLY LI TIGANTS WOULD BE PREJUDICED. CONFIDENCE OF THE LITIGANTS IN THE JUDI CIAL PROCESS WOULD BE SHAKEN. A JUDGEMENT PRONOUNCED IN OPEN COURT SHOULD BE ACTED UPON UNLESS THERE BE SOME EXCEPTIONAL FEATURE AND IF THERE BE ANY SUCH, THE SAME SHOULD APPEAR FROM THE RECORD OF THE CASE.' (EMPHASIS PROVIDED) M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 19 OF 20 5.12. IN THE ABOVE CASE, UNLIKE THE PRESENT CASE, THE HO N'BLE SUPREME COURT FOUND THAT THERE IS NO MATERIAL AT ALL TO SHOW AS T O WHAT LED THE DIVISION BENCH WHICH HAD PRONOUNCED THE JUDGEMENT BY WAY OF DICTAT ING IT IN THE OPEN COURT, NOT TO AUTHENTICATE THE SAME BY SIGNING IT. THE HO N'BLE SUPREME COURT IN THE PECULIAR SITUATION HELD THAT THE JUDGEMENT DELIVERE D BY WAY OF DICTATION IN OPEN COURT BY THE SENIOR JUDGE OR BY HIS LEAVE BY THE OT HER JUDGE HAS TO BE TAKEN AS FINAL AND THE WRIT PETITION SHOULD NOT HAVE BEEN PL ACED FOR A FRESH HEARING. 5.13. HENCE, ON APPRECIATING THE PECULIAR FACTS AND CIRC UMSTANCES OF THE PRESENT CASE AND THE LEGAL PRECEDENT, WE FIND THAT THE PRESENT CASE IS SQUARELY COVERED BY THE EXCEPTION CARVED OUT BY THE DECISION OF THE HONBLE SUPREME COURT IN VINOD KUMAR SINGH VS BHU (CITED SUPRA) AS THERE WAS NO PRONOUNCEMENT THAT THE REVENUES APPEAL IS BEING DI SMISSED AND THERE WAS NO ORDER DICTATED IN THE OPEN COURT DISMISSING THE REV ENUES APPEAL. FURTHER THE EXCEPTIONAL FEATURE WHY THE CASE ITSELF WAS REQUIRE D TO BE RE-HEARD IS EVIDENT FROM THE ORDER SHEET DATED 22.08.2014 ON WHICH DATE THE CLARIFICATION WAS ADDRESSED, THE MERITS OF WHICH HAVE NOT BEEN TOUCHE D UPON IN THE M.A FILED BY THE ASSESSEE. 6. ACCORDINGLY ON CONSIDERATION OF THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT BY FILING THE M.A. THE ASSE SSEE IS INFACT SEEKING A REVIEW OF THE ORDER DATED 12.12.2014 AS IS EVIDENT FROM TH E ARGUMENTS ADVANCED ON MERIT AND RELIANCE PLACED ON CIT VS KAMDHENU (CITED SUPRA) IN THE CONTEXT OF PROPOSITION OF LAW IN REGARD TO ADDITION U/S 68 OF THE INCOME TAX ACT. THE M.A.-329/DEL/2014 (IN ITA NO.-1701/DE L/2012) PAGE 20 OF 20 ASSESSEE HAVING FAILED TO POINT ANY ERROR APPARENT ON THE FACE OF THE RECORD, THE M.A FILED IS DISMISSED. 7. IN THE RESULT THE M.A. FILED BY THE ASSESSEE IS DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14 TH OF MARCH 2016. SD/- SD/- (J.S.REDDY) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 14/03/2016 *AMIT KUMAR & BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI