ACIT, New Delhi V. Davinder Dhingra, Delhi

MA 333/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6986 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Assessment Year: 2010-2011
• Appeal Filed On: 24-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M BARANWAL
• Assessee Lawyers: V K SUBHARWAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) MA NO. 333/DEL/2017 (ARISING OUT OF ITA NO. 1713/DEL/2016) (ASSESSMENT YEAR : 2010-11) ACIT CIRCLE 34(1) NEW DELHI PAN NO. AAFPD 0697 R VS DAVINDER DHINGRA PROP. M/S AMBA SANITARY STORE, C- 81/1, TANKI ROAD, BHAJANPURA, DELHI (APPELLANT) (RESPONDENT) A SSESSEE BY SHRI V. K. SUBHARWAL, ADV. RE VENUE BY SHRI M. BARANWAL, SR. D.R. DATE OF HEARING: 19 / 0 8 /202 1 DATE OF PRONOUNCEMENT: 19 / 0 8 /202 1 ORDER PER ANIL CHATURVEDI, AM: THE PRESENT MISCELLANEOUS APPLICATION (MA) IS FILED BY THE REVENUE U/S 254(2) OF THE INCOME TAX ACT, 1961 [FOR SHORT, 'THE ACT'] AGAINST THE ORDER OF THE TRIBUNAL DATED 19.10.2016 IN RESPECT OF ITA NO.1713/DEL/2016 FOR A.Y. 2010-11. 2. BEFORE US, LEARNED DR TOOK US THROUGH THE MA FILED AND FURTHER SUBMITTED THAT HONBLE ITAT IN THE ORDER DATED 19.10.2016 HAD DELETED THE ADDITION MADE BY THE AO RELYING UPON 2 ITS DECISION MADE IN THE CASE OF SHRI RAVI DHINGRA VS. ACIT IN ITA NO.3780/DEL/2015 DATED 18.12.2015. HE CONTENDED THAT THE HONBLE ITAT HAS DELETED THE ADDITION WITHOUT CALLING FOR THE SURVEY FOLDER OR ANY REMAND REPORT FROM THE AO AND WITHOUT APPRECIATING THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY. LEARNED DR FURTHER SUBMITTED THAT THERE WAS ENOUGH MATERIAL ON RECORD IN THE FORM OF INVENTORY OF STOCK AND CASH FOUND DURING THE COURSE OF SURVEY WHICH HAS ESCAPED THE NOTICE OF HONBLE TRIBUNAL. LEARNED DR THEREFORE SUBMITTED THAT REVENUE IS SEEKING TO RECALL THE ORDER AND RE-ADJUDICATING THE MATTER ON MERITS IN THE LIGHT OF THE MATERIAL ON RECORD. 3. LEARNED AR ON THE OTHER HAND AT THE OUTSET, SUBMITTED THAT THE MA FILED BY THE REVENUE IS BARRED BY LIMITATION AND THEREFORE AT THE OUTSET, IT SHOULD BE DISMISSED. HE SUBMITTED THAT THE TRIBUNAL HAS PASSED AN ORDER ON 19.10.2016 AND MA HAS BEEN FILED BY THE DEPARTMENT ON 24.05.2017. HE SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT, REVENUE WAS REQUIRED TO FILE THE MA ON OR BEFORE 30 TH APRIL 2017. ON THE MERITS OF THE MA, HE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF TRIBUNAL AND THROUGH THE PRESENT MA, REVENUE IS SEEKING REVIEW OF THE ORDER PASSED BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE ACT. IN SUPPORT OF HIS CONTENTION, HE RELIED ON THE ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KRISHNA GUPTA AND OTHERS REPORTED IN WP(C) NO.2174 OF 2011 ORDER DATED 31.03.2011. HE THEREFORE SUBMITTED THAT THE MA FILED BY THE REVENUE BE DISMISSED. 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE GRIEVANCE OF THE REVENUE IS THAT THE TRIBUNAL HAS GRANTED RELIEF TO THE ASSESSEE AND THERE ARE FACTUAL INCONSISTENCIES IN THE ORDER OF TRIBUNAL AND THERE IS ENOUGH MATERIAL ON RECORDS IN THE FORM OF INVENTORY OF STOCK & CASH FOUND DURING THE COURSE OF SURVEY WHICH HAS ESCAPED THE NOTICE OF TRIBUNAL WHILE PASSING THE ORDER. IT IS A SETTLED LAW THAT POWER OF RECTIFICATION U/S 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING. FURTHER TRIBUNAL CANNOT EXERCISE ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM RECORD ITSELF. HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC AND TRADING COMPANY (1993) 203 ITR 497 HAS HELD THAT TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. HONBLE DELHI HIGH COURT IN THE CASE OF RAS BIHARI BANSAL V. COMMISSIONER OF INCOME-TAX AND ANOTHER, [2007] 293 ITR 365 (DELHI) HAS HELD THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE U/S 254(2). IT HAS FURTHER HELD THAT FAILURE OF 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. IT HAS FURTHER HELD THAT IN THE GRAB OF AN APPLICATION FOR RECTIFICATION IT IS NOT PERMISSIBLE TO THE PARTIES TO REOPEN AND REARGUE THE WHOLE MATTER. HONBLE 4 KERALA HIGH COURT IN THE CASE OF P.T. MANUEL AND SONS (2021) 434 ITR 416 HAS HELD THAT THE POWER OF RECTIFICATION IS NOT AKIN TO THAT OF APPEAL OR EVEN A REVIEW. IT HAS FURTHER HELD THAT MERELY BECAUSE THERE IS A WRONG OR ERRONEOUS ORDER OR A WRONG APPRECIATION OF FACTS, THE SAME CANNOT BE GROUNDS FOR RECTIFICATION THOUGH THEY COULD BE GROUNDS FOR APPEAL. IN VIEW OF THE AFORESAID FACTS AND FOLLOWING THE DECISIONS CITED HEREINABOVE, WE ARE OF THE VIEW THAT SINCE THE REVENUE HAS FILED TO POINT OUT ANY MISTAKE APPARENT FROM RECORD IN THE ORDER AS CONTEMPLATED U/S 254(2) OF THE ACT, WE ARE NOT INCLINED TO RECALL THE ORDER IN ITA NO.1713/DEL/2016 DATED 19.10.2016 AND THUS THE MISC. APPLICATION OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE MA OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.08.2021 SD/- SD/- (SUCHITRA KAMBLE) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE:- 19.08.2021 PY* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5