ITO, Ward- 3(1), Gurgaon V. Nishika Aggarwal, Gurgaon

MA 33/DEL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0925 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Delhi
• Next Hearing Date: 21-07-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 11-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Accommodation entries; Documents seized; Set aside; Capital Gains
• Section: 68; 143(3); 254(2)

Judgement Text

1 MA No. 33/Del/2021 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER M.A. No. 33/Del/2021 (In ITA no. 2429/Del/2018) [Assessment Year: 2014-15] Income-tax Officer, Ward-3(1), Gurgaon. Vs Nishika Aggarwal, Gurgaon. PAN: ARTPA1889P C/o RRA Tax India, D-28, South Extension, Part-I, New Delhi-110049. APPLICANT RESPONDENT Assessee represented by: Dr. Rakesh Gupta, Adv. & Sh. Shrey Jain, Adv. Department represented by: Sh. Anuj Garg, Sr. DR Date of hearing 22.07.2022 Date of pronouncement 13.10.2022 O R D E R PER KUL BHARAT, JM: At the outset learned counsel for the assessee pointed out that the present misc. application filed by the Revenue is not maintainable in the format, as there is no application u/s 254(2) of the Income-tax Act, 1961 (in short “the Act”). Learned counsel has drawn our attention to the letter dated 11.02.2021, addressed to the 2 MA No. 33/Del/2021 Assistant Registrar of this Tribunal. He submitted that under identical facts the coordinate Bench of this Tribunal in MA no. 515/Del/2019 has dismissed the application. 2. On the contrary, learned Sr. DR submitted that it is a curable defect and supported the contents of the letter dated 11.02.2021 along with the reasons enclosed with the letter. 3. I have heard the learned representatives of the parties. I find that Revenue filed a letter dated 11.02.2021, addressed to the Assistant Registrar, Income Tax Appellate Tribunal, Bench-SMC, New Delhi. For the sake of clarity letter along with the reasons and grounds of appeal are reproduced as under: “F.No.ITO/W-3(1)/GGN/2021-20/222 Dated: 11.02.2021 To The Assistant Registrar, Income Tax Appellate Tribunal, Bench-SMC, Lok Nayak Bhawan, khan market, New Delhi. Sir, Sub:- Miscellaneous application to the Income Tax Appellate Tribunal, Delhi Benches, “SMC” Delhi passed in the case of Smt. Nishika Aggarwal, Gurgaon, PAN:- ARTPA1889P C/o. RRA Tax India, D-28, South Extension, Part-!, New Delhi-110049 Vs. Income Tax Officer, Ward-3(1), Gurgaon in ITA no. 2429/Del/2018 for the Assessment Year 2014-15- Regarding. Kindly find enclosed herewith the following document in the above noted case for the assessment year mentioned in the subject for filing of departmental appeal to the Tribunal:- 1. Memorandum of appeal (Form 36) Three copies 2. Reasons for filing of miscellaneous Application Three copies 3. Additional information Sheet Three copies 4. Grounds of appeal Three copies 3 MA No. 33/Del/2021 5. ITAT, New Delhi’s order Dt. 01.01.2019 Three copies 6. CIT(A)’s order dated 22.01.2018 Three copies 7. Assessing Officer’s order u/s 143(3) Dt. 26.12.2016 Three copies Encl: As above. Yours faithfully Sd/- (Savitri Hans) Income Tax Officer Ward-3(1), Gurgaon” “REASON FOR FILING OF MISCELLANEOUS APPLICATION BEFORE HON’BLE ITAT SMT. NISHIKA AGGARWAL – PAN – ARTPA1889P – A.Y. 2014-15 Return declaring income of Rs. 11,06,240/- was filed by the assessee on 29.03.2015. Later on, the case was selected under scrutiny through CASS on the basis of information uploaded by the Investigation Wing that “Suspicious Long Term Capital gain on Shares (inputs from investigation wing)”. The assessee had purchased & sold shares of M/s Kappac Pharma Limited and received an amount of Rs. 28,14,180/- and claimed as exempt u/s 10(38) of the Income Tax Act, 1961. During the course of assessment proceedings, the AO relied on the information provided by the Investigation Wing of the department and statements of Sh. Nikhi Jain S/o Sh. Narender Kumar Jain and Sh. Anil Kumar Khemka recorded on oath. Sh. Nikhi Jain and Sh. Anil Kumar Khemka have confirmed on oath that they have provided accommodation entries in the shape of bogus LTCG through the same script of M//s Kappac Pharma Limited. The irregularities in the trading of script of M//s Kappac Pharma Limited was also noticed by the SEB1 and thereafter, the stock exchanges were directed to suspend the trading of the script of M//s Kappac Pharma Limited. Thus, the assessee being involved in claiming bogus LTCG in transaction of Penny Stock of M//s Kappac Pharma Limited. Hence the AO disallowed the exemption and made addition of Rs 28,14,180/- as un explained credit u/s 68 of the I.T.Act, 1961 and charged tax u/s 115BBE of the Act. 3. Aggrieved by the said order, the assessee filed appeal before Ld. CIT(A)-1, Gurgaon. The Ld. CIT(A), vide Order dated: 22.01.2018 in 4 MA No. 33/Del/2021 Appeal No.687/16-17 dismissed the appeal of the assessee holding on facts of the case and judicial decisions. 4. Aggrieved by the order of Ld. CIT(A-1, Gurgaon, the assessee filed appeal before the Hon’ble ITAT. The Hon’ble ITAT in its ITA No.2429/Del/2018 dated 01.01.2009 allowed the appeal of the assessee. The decision of Hon’ble ITAT is not acceptable in view of the following facts:- (i) In the instant case the evidence is based on statement recorded during search and survey actions at the premises of operators of the companies. It was found that M/s Kappac Pharma Limited was engaged in providing bogus LTCG in the shape of incriminating documents seized/impounded and thereafter statement of operators of these paper companies. The search/survey helped in unearthing a large scam being run by its operators for giving bogus LTCG to thousands of beneficiaries. (ii) Hon’ble ITAT has completely over looked the findings of Investigation wing of the department, who unearthed the scam during search and survey action on the operators of these penny stock companies. (iii) Total disregard has been shown to the statements of the operators of the companies who were providing bogus entries of Long Term Capital Gains including M/s Kappac Pharma Ltd, Sh. Nikhi Jain and Sh. Anil Kumar Khemka in their statements recorded on oath have clearly mentioned in their statements that M/s Kappac Pharma Ltd was engaged in providing bogus LTCG to various beneficiaries. (iv) Hon’ble ITAT has reflected only the evidence of sale, while totally ignoring the circumstances of purchase of shares, fictitious increase in value of shares and the financial fundamentals of the company during the period of sale of shares. (v) The statements recorded under oath cannot be wished away simply by resorting to diversionary tactics. The searches and survey conducted by Investigation Wing, Kolkata lifted the veil from an organized racket of converting black money and it cannot be disregarded only for the reason that the assessee was not confronted. 5 MA No. 33/Del/2021 (vi) The finding of the Hon’ble ITAT that no case specific or transaction specific information was given by the persons whose statements were recorded are far from the facts of the case. The persons whose statements were recorded have clearly mentioned in their statement the company M/s and Kappac Pharma Ltd, in which the assessee has traded. Therefore, the mistake is clearly apparent form record. (vii) Hon’ble ITAT has totally disregarded the findings by Ld. CIT(A) who confirmed the addition of the AO. The case laws mentioned by the Ld. CIT(A) has not even been discussed in order. (viii) Hon’ble ITAT has not appreciated the facts that there can be hardly any documentary clinching evidence to pierce the veil of such under hand transactions. Such type of transactions can be dismantled on the basis of circumstantial facts surroundings evidences. (ix) The recent judgment by Hon’ble Delhi High Court in the case of Udit Kalra V/s ITO Ward 50(1) in ITA 220/2019 & CM No. 10774/2019 dated 08.03.2019 has decided the issue in favor revenue by relying upon the findings of the investigation wing, enquires conducted in the case of assessee brokers, operators & entry providers and nature of transaction. The case law is squarely applicable in the instant case. (x) In the recent judgment by Hon’ble ITAT, SMC Bench, New Delhi in the case of Sh. Anup Rastogi and Smt. Anju Rastogi in ITA No. 3809 and 3810/Del/2018 for the A.Y 2015-16 dated 08.01.2019 has decided the issue of bogus LTCG on sale of shares in favor of revenue by giving credence to the statement recorded by investigation Wing and the abrupt, unrealistic movement of Price and no extraordinary increase in the profits of the company to justify the increase in value of shares. This latest decision of Jurisdictional ITAT Delhi is squarely applicable in the present case on both the facts and circumstances of the case. In view of the above facts and circumstances of the case, it appears to be apparent mistake in order passed by Hon’ble ITAT, New Delhi as the decision is based on wrong inferences. Yours faithfully Sd/- 6 MA No. 33/Del/2021 (Savitri Hans) Income Tax Officer Ward-3(1), Gurgaon Remarks: Hon’ble ITAT, Delhi Benches, New Delhi in ITA No. 2429/Del/2018 in the case of Smt. Nishika Aggarwal, Gurgaon, PAN- ARTPA1889P Vs. Income Tax Officer, Ward- 3(1), Gurgaon for A.Y. 2014-15 has passed an order on 01.01.2019 deleting the addition made by the AO. The case of Smt. Nishika Aggarwal PAN- ARTPA1889P pertained to Income Tax Officer, Ward - 3(1), Gurgaon falling under Pr. Commissioner of Income Tax, Gurgaon. However, the copy of order of the Hon’ble ITAT in respect of the assessee Smt. Nishika Aggarwal, Gurgaon, PAN- ARTPA1889P was not received in this office. Therefore, the case could not be pursued further and no miscellaneous application was filed for review of the order. However, later on, the order of the Hon’ble ITAT was downloaded from the portal of the ITAT and accordingly, miscellaneous application is being filed on the grounds mentioned in the reasons for filing of application. Sd/- (Savitri Hans) Income Tax Officer Ward-3(1), Gurgaon” 4. Under the identical facts in the case of ITO Vs. Radhika Garg in MA no. 515/Del/2019, arising out of ITA No. 4738/Del/2018, the coordinate Bench of this Tribunal has dismissed the similar application. For the sake of the clarity, the order of the Tribunal in MA no. 515/Del/2019, arising out of ITA no. 4738/Del/2018, in the case of ITO Vs. Radhika Garg is reproduced as under: “The Revenue along with covering letter dated 17.06.2019 addressed to the Assistant Registrar filed the following documents purported to the Miscellaneous Application in the case of Smt. Radhika Garg in ITA No. 4738/Del/2018 dated 01.01.2019: 7 MA No. 33/Del/2021 8. Memorandum of appeal (Form 36) Three copies 9. Reasons for filing of miscellaneous Application Three copies 10. Additional information Sheet Three copies 11. Grounds of appeal Three copies 12. ITAT, New Delhi’s order Dt. 24.08.2018 Three copies 13. CIT(A)’s order dated 28.01.2018 Three copies 14. Assessing Officer’s order u/s 143(3) Dt. 24.12.2007 Three copies 15. Certificate regarding date of communication of ITAT’s order to the PCIT Three copies 2. At the outset, the Ld. Counsel for the assessee submits that the Revenue filed fresh appeal by enclosing the memorandum of appeal, Form 36, Grounds of appeal, CIT(Appeals) order, assessment order, Tribunal’s order. The Ld. Counsel submits that the documents filed suggest it is only an appeal not a miscellaneous application and, therefore, the documents filed cannot be treated as miscellaneous application and are to be rejected in limne. 3. On the other hand, the Ld. Departmental Representative furnished the comments of the Assessing Officer which states that along with appeal set reasons for filing miscellaneous application were also filed on the directions of the Pr. Commissioner of Income Tax, Faridabad dated 22.05.2019. The Assessing Officer also in his comments stated that as there is no proper format for filing miscellaneous application the entire appeal set along with reasons for filing miscellaneous application was filed and, therefore, the same be treated as miscellaneous application. 4. Coming to merits, the Ld. DR submits that there is a mistake apparent on record as pointed out by the Assessing Officer in the reasons for filing the miscellaneous application as the Tribunal did not consider/appreciate the evidences on record and the case laws relied on by the Revenue, while deciding the appeal on merits for the Tribunal. The Ld. Counsel for the assessee submits that a perusal of the reasons for filing of miscellaneous application reveals that the contention of the Revenue is that the Judgments cited were not considered by the Tribunal, the evidences on record were not considered by the Tribunal and, therefore, there is a mistake apparent on record according to the Revenue. The Ld. Counsel for the assessee submits that the Revenue wants the Tribunal to review its order on merits which the Tribunal has no power to do so. The Ld. Counsel strongly placed reliance on the decision of the Hon’ble Supreme Court in 8 MA No. 33/Del/2021 the case of CIT Vs. Reliance Telecom Ltd. [440 ITR 1]. Referring to the judgment the Ld. Counsel submits that the Tribunal has no power to review its order and the only course left for the petitioner is to approach the High Court. The Ld. Counsel therefore requests to dismiss the miscellaneous application filed by the Revenue. 5. Heard rival submissions perused the order of the Tribunal and also the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd. reported in 440 ITR 1. On the preliminary objection raised by the Ld. Counsel for the assessee that the Revenue has filed once again the appeal set and not the miscellaneous application it is observed that the Assessing Officer vide letter dated 04.04.2022 addressed to the Sr. Departmental Representative before this Tribunal stated that it was inadvertently filed in Form No. 36 for the reason that there is no specific and separate Form prescribed for filing the miscellaneous application. It is also further stated that the miscellaneous application was filed after obtaining necessary approval of the Pr. Commissioner of Income Tax, Faridabad on 22.05.2019. The Revenue has attached reasons for filing of miscellaneous application along with Form No. 36 stating as under: “Return declaring income of Rs.6,66,100/- was filed by the assessee on 31.08.2015. Later on, the case was selected under scrutiny through CASS on the basis of information uploaded by the Investigation Wing that “Suspicious Transaction relating to Long Term Capital Gain on sale of shares". The assessee had purchased Et sold shares of M/s Life Line Drugs and Pharma Limited and received an amount of Rs.26,50,725/- and claimed as exempt u/s 10(38) of the Income Tax Act, 1961. During the course of assessment proceedings, the AO relied on the information provided by the Investigation Wing of the department and statement of Shri Sanjay Vora recorded on oath. Shri Sanjay Vora has confirmed on oath that he has provided accommodation entries in the shape of bogus LTCG through the scrip of M/s Lifeline Drugs and Pharma Ltd. The irregularities in the trading of scrip of M/s Lifeline Drugs and Pharma Ltd was also noticed by the SEBI and thereafter, the stock exchanges were directed to suspend the trading the scrip of M/s Lifeline Drugs and Pharma Ltd. Thus, the assessee being involved in claiming bogus LTCG in transaction of Penny Stock of M/s Lifeline Drugs and Pharma Ltd. Hence, the AO disallowed the exemption and made addition of Rs.26,50,725/- as un explained credit 9 MA No. 33/Del/2021 u/s 69 of the I.T.Act, 1961 and charged tax u/s 115BBE of the Act. 3. Aggrieved by the said order, the assessee filed appeal before Ld.CIT(A), Faridabad. The Ld.CIT(A), vide in Appeal No.10258/2017-18 dated-28.05.2018 dismissed the appeal of the assessee holding on facts of the case and judicial decisions. 4. Aggrieved by the order of Ld.ClT(A), Faridabad, the assessee fled appeal before the Hon’ble IT AT. The Hon’ble ITAT in its ITA No. 4738/Del/2018 dated-01.01.2009 allowed the appeal of the assessee holding that '.-“Considering the totality of the facts and circumstances of the case, I am of the view that the issue is covered in favour of the assessee by the aforesaid Order of Tribunal in the group case of Shri Amar Nath Goenka, Delhi vs. ACIT, Circle-20(1), New Delhi (supra). I am of the view that the assessee has complied with the conditions ofSection 10(38) of the I. T.Act. I accordingly set aside the Orders of the authorities below and delete the addition. ” The decision of Hon’ble IT AT is not acceptable in view of the following facts:- (i) In the instant case the evidence is based on statement recorded during search and survey actions at the premises of operators of the companies. It was found that M/s Life Line Drugs and Pharma Limited was engaged in providing bogus LTCG in the shape of incriminating documents seized/impounded and thereafter statement of operators of these paper companies. The search helped in unearthing a large scam being run by its operators for giving bogus LTCG to thousands of beneficiaries. (ii) Hon’ble ITAT has completely overlooked the findings of Investigation wing of the department, who unearthed the scam during search and survey action on the operators of theses penny stock companies. (iii) Total disregard has been shown to the statements of the operators of the companies who were providing bogus entries of Long Term capita! gains including M/s Lifeline Drugs and Pharma Ltd., Shri Sanjay Vora in his statement recorded on oath has clearly mentioned ii his statement that M/s Lifeline Drugs and Pharma Ltd. was engaged in providing bogus LTCG to various beneficiaries. (iv) Hon’ble ITAT has reflected only the evidence of sale, while totally ignoring the circumstances of purchase of shares, fictitious increase in value of shares and the financial fundamentals of the 10 MA No. 33/Del/2021 company during the period of sale of shares. (v) The statements recorded under oath cannot be wished away simply by resorting to diversionary tactics. The searches and survey conducted by Investigation Wing, Kolkata lifted the veil from an organized racket of converting black money and it cannot be disregarded only for the reason that the assessee was not confronted. (vi) The finding of the Hon’ble ITAT that no case specific or transaction specific information was given by the persons whose statement was recorded are for from the facts of the case. The persons whose statement were recorded have clearly mentioned in their statement the company M/s Lifeline Drugs and Pharma Ltd, in which the assessee has traded. Therefore, the mistake is clearly apparent from record. (vii) Hon’ble ITAT has totally disregarded the findings by Ld.CIT(A) who confirmed the addition of the AO. The case laws mentioned by the Ld. CIT(A) has not even been discussed in order. (viii) Hon’ble ITAT has not appreciated the facts that the can be hardly any documentary clinching evidence to pierce the veil of such under hand transactions. Such type of transactions can be dismantled on the basis of circumstantial facts surroundings evidences. (ix) The recent judgment by Hon’ble Delhi High court in the case of Udit Kalra Vis ITO Ward 50(1) in ITA 220/2019 & CM No. 10774/2019 Dated 08.03.2019, has decided the issue in favour of revenue by relying upon the findings of the investigation wing, enquires conducted in the case of assessee brokers, operators & entry providers and the nature of transaction. The case law is squarely applicable in the instant case. (x) In the recent judgment by Hon’ble ITAT, SMC Bench, New Delhi in the case of Sh. Anup Rastogi and Smt. Anju Rastogi in ITA No.3809 and 3810/Del/2018 for the A.Y. 2015-16 dated 08.01.2019 has decided the issue of bogus LTCG on sale of shares in favour of revenue by giving credence to the statement recorded by Investigation Wing and the abrupt, unrealistic movement of Price and no extraordinary increase in the profits of the company to justify the 11 MA No. 33/Del/2021 increase in value of shares. This latest decision of Jurisdictional ITAT Delhi is squarely applicable in the present case on both the facts and circumstances of the case. In view of the above facts and circumstances of the case, it appears to be apparent mistake in order passed by Hon’ble ITAT, New Delhi, as the decision is based on wrong inferences It is also observed from the reason for filing of miscellaneous application which was attached along with Form 36 that the Assessing Officer contends that the Tribunal did not follow the decisions in favour of the Revenue, the Tribunal has not appreciated the evidences, statements recorded by the Investigation Wing of the Department, the Tribunal totally disregarded the findings of the Ld. CIT(Appeals) who confirmed the addition of the Assessing Officer, the Assessing Officer also stated that total disregard has been shown to the statement of the operative of the Companies who were providing bogus entries of long term capital gains including M/s Life Line Drugs and Pharma Ltd. as was recorded by Shri Sanjay Vohra on oath that the company was engaged in providing bogus LTCG to various beneficiaries. Therefore, the AO contended that these are the apparent mistakes in the order of the Tribunal. Therefore, the Assessing Officer stated that the decision of the Tribunal is based on wrong inferences. 6. It is observed from the reasons for miscellaneous application filed by Revenue, except stating that there are mistakes in the order of the Tribunal and the decision is based on wrong inferences there is no specific prayer by the Revenue in the reasons for filing of miscellaneous application. By way of this reason for filing of miscellaneous application the Revenue wants the Tribunal to review its order. The Tribunal does not have power u/s 254(2) to review its own order. It can only rectify the arithmetical and apparent errors/mistakes crept in the order. The Hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd. (supra) held that where the Tribunal had passed a detailed order originally during appellate proceedings the said order could not be completely recalled by the Tribunal in exercise of powers u/s 254(2) as powers u/s 254(2) were only to rectify and correct any mistakes apparent from record. The Hon’ble Supreme Court held 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 as well as the original order passed by the ITAT dated 12 MA No. 33/Del/2021 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 u/s 254(2) of the Act. While allowing the application u/s 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 CIT. 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 u/s 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 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. 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; 13 MA No. 33/Del/2021 (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 (Hi) 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. The Hon’ble Supreme Court did not accept the contention of the assessee that on the merits the Tribunal decided erroneously and the Tribunal had jurisdiction to recall its order. As could be seen from the above, the Hon’ble Supreme Court held that if the order passed by the ITAT was erroneous on merits the remedy available to the assessee was to prefer an appeal before the High Court. In view of this decision even assuming the order passed by the Tribunal is erroneous the Tribunal does not have power to recall its order u/s 254(2) of the Act. In view of the above, the reasons for filing of miscellaneous application filed by the Revenue is rejected. 8. In the result, the miscellaneous application filed by the Revenue is dismissed. Order pronounced in the open court on 04/05/2022” 14 MA No. 33/Del/2021 5. The facts are identical in this case as well. For the same reasons the present misc. application of the Revenue is dismissed. 6. In the result, the misc. application filed by the Revenue is dismissed. Order was pronounced orally in open court, during the course of hearing, on 22.07.2022. However, the written order has been signed on 13 th October, 2022 Sd/- (KUL BHARAT) JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI