Mohd. Tariq Quereshi, Lucknow V. Dy. Commissioner of Income Tax-4, Lucknow

MA 35/LKW/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6662 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-05-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 04-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEELAM AGRAWAL
• Assessee Lawyers: S C AGRAWAL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. NO.35/LKW/2017 [ARISING OUT OF ITA NO. 21/LKW/2015] ASSESSMENT YEAR: 2012 - 13 MOHD. TAR IQ QUERESHI 264/20, BILLOUCHPURA RAJENDRA NAGAR LUCKNOW V. DCIT RANGE 4 LUCKNOW T AN /PAN : ADMPT1938R (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI S.C. AGRAWAL, ADVOCATE RESPONDENT BY: SMT. NEELAM AGRAWAL, D.R. DATE OF HEARING: 04 0 5 201 8 DATE OF PRO NOUNCEMENT: 08 0 5 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : IN THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IT IS STATED THAT THE TRIBUNAL WHILE DECIDING THE APPEAL HAS NOT CONSIDERED THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN T HE CASE OF CIT VS. BANWARILAL BANSHIDHAR [1998] 229 ITR 229. THE TRIBUNAL HAS ALLOWED THE APPEAL OF THE REVENUE. IT IS THE CONTENTION OF THE LD. A.R. OF THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION THAT RELIEF WAS GIVEN TO THEM BY THE LD. CIT(A) O N THE BASIS OF THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. BANWARILAL BANSHIDHAR (SUPRA) AND IF THAT HA D BEEN CONSIDERED BY ITAT, THEN FINDINGS WOULD HAVE BEEN DIFFERENT AND THAT NON - CONSIDERATION OF THE JUDGMENT OF THE JURISDIC TIONAL HIGH COUR T IS A MISTAKE APPARENT ON RECORD. M.A. NO.35/LKW/2017 PAGE 2 OF 8 2 . THE LD. D.R. INVITED OUR ATTENTION TO THE FINDINGS ON THIS ISSUE BY THE TRIBUNAL AND STATED BEFORE US THAT THE TRIBUNAL HAS NOT ADJUDICATED THE ISSUE BUT HAS SET ASIDE THE ORDER OF THE LD. CIT(A) AND HAS R ESTORED THE MATTER BACK TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUE AFRESH AFTER CONFRONTING THE ADDITIONAL EVIDENCE TO THE ASSESSING OFFICER OR CALLING A REMAND REPORT FROM HIM. THE LD. D.R. STATED THAT THERE WAS VIOLATION OF THE PROVISIONS O F RULE 46A AND THIS WAS THE REASON WHY THE MATTER WAS RESTORED BACK TO THE FILE FO THE LD. CIT(A). THE LD. D.R. FURTHER SUBMITTED SINCE THE MATTER WAS NOT ADJUDICATED UPON AND HAS BEEN ENTIRELY RESTORED, THEREFORE, NON - CONSIDERATION OF ANY CASE LAW IS NOT A MISTAKE APPARENT ON RECORD. 3 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVAL CONTENTIONS AND WE FIND THAT IN PARA 20 OF THE TRIBUNAL ORDER IN ITA NO.21/LKW/2015, TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE LD. CIT(A) AFTER SETTING ASIDE HI S ORDER TO RE - ADJUDICATE THE ISSUE AFRESH AFTER CONFRONTING THE ADDITIONAL EVIDENCE TO THE ASSESSING OFFICER OR CALLING A REMAND REPORT FROM HIM. THIS IS THE VIEW TAKEN BY THE TRIBUNAL AND THEREFORE WE FIND THAT THE MATTER HAS NOT BEEN ADJUDICATED, IT HAS ONLY BEEN RESTORED BACK. IN SUCH CIRCUMSTANCES, WE DO NOT FIND THERE IS ANY MISTAKE APPARENT FROM RECORD WITHIN THE MISCELLANEOUS APPLICATION JURISDICTION. IT IS A VIEW TAKEN BY THE TRIBUNAL AND IN MISCELLANEOUS APPLICATION JURISDICTION WE CANNOT ADJUDI CATE UPON THE VIEW TAKEN BY A CO - ORDINATE BENCH AND IF THERE IS NO MISTAKE APPARENT ON RECORD. IN VIEW OF THESE FINDINGS, WE ARE OF THE CONSIDERED VIEW AND WE HOLD THAT WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD AND THIS MISCELLANEOUS APPLICATION OF TH E ASSESSEE IS LIABLE TO BE DISMISSED. 4 . MOREOVER, THE SCOPE OF PROVISIONS OF SECTION 254(2) IS VERY LIMITED AND ONLY THOSE ERRORS WHICH ARE APPARENT OR ARITHMETICAL CAN ONLY M.A. NO.35/LKW/2017 PAGE 3 OF 8 BE RECTIFIED. THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT HAS BEEN REPEATE DLY EXAMINED BY THE HON'BLE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT THE TRIBUNAL CAN RECTIFY ONLY THOSE MISTAKES WHICH ARE ARITHMETICAL OR CLERICAL OR APPARENT IN ITS ORDER. THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER IN THE G ARB OF RECTIFICATION. IT WAS ALSO HELD THAT IF THE TRIBUNAL COMMITS AN ERROR OF JUDGEMENT, THAT ERROR CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT AS THE TRIBUNAL IS NOT EMPOWERED BY THE STATUTE TO REVIEW ITS OWN ORDER. IN THE CA SE OF CIT VS. VARDHMAN SPINNING; 226 ITR 296 THEIR LORDSHIPS OF HON'BLE PUNJAB AND HARYANA HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE APPELLATE TRIBUNAL IS CREATION OF STATUTES AND IT CAN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. THE ONLY POWER CONFERRED ON THE TRIBUNAL U/S 254(2) OF THE I.T. ACT, 1961 IS TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED BY THE AUTHORITIES UNDER THE ACT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOS ED INHERENT RIGHTS. U/S 254(1) OF THE ACT, THE APPELLATE TRIBUNAL, AFTER HEARING THE CONTESTING PARTIES, CAN PASS SUCH ORDER AS IT DEEMS FIT. SEC. 254(2) OF THE ACT SPECIFICALLY EMPOWERS THE APPELLATE TRIBUNAL AT ANY TIME WITHIN FOUR YEARS OF THE DATE OF AN ORDER TO AMEND ANY ORDER PASSED BY IT U/S 254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD EITHER SUO MOTO OR ON AN APPLICATION MADE . WHAT CAN BE RECTIFIED UNDER THIS SECTION IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MIS TAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE, THEN IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD. 5 . IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD INDUSTRIES (P) LTD., 226 I TR 34 THEIR LORDSHIPS OF HON'BLE CALCUTTA HIGH COURT HAVE EXPRESSED SIMILAR OBSERVATIONS AFTER HOLDING THAT UNDER SECTION 254(2) OF THE INCOME - TAX ACT, AN ORDER, WHICH HAS BEEN PASSED BY THE TRIBUNAL M.A. NO.35/LKW/2017 PAGE 4 OF 8 REACHES FINALITY THE MOMENT THE SAME IS PASSED; CANNOT BE TOUCHED THEREAFTER. BY SECTION 254(2) OF THE ACT, THE TRIBUNAL, HOWEVER, HAS BEEN AUTHORIZED TO RECTIFY MISTAKES IN ITS ORDERS, WHICH ARE APPARENT ON THE FACE OF THE RECORDS. THE EXPRESSION MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EITHER CLERIC AL OR GRAMMATICAL OR ARITHMETICAL OR OF LIKE NATURE, WHICH CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO RE - ARGUE THE MATTER OR TO RE - APPRAISE THE FACT AS APPEARING FROM THE RECORDS. IN ANOTHER CASE CIT VS. GOLAL CHAND AGARWAL; 202 ITR 14 THEIR LO RDSHIPS OF HON'BLE CALCUTTA HIGH COURT HAVE ALSO HELD THAT SECTION 254(2) OF THE INCOME - TAX ACT, 1961 EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED U/S 254(1) TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. IF IN IT S ORDER THERE IS NO MISTAKE WHICH IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, THE EXERCISE OF THE JURISDICTION BY THE TRIBUNAL U/S 254(2) WILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF THE FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIGHT, AT THE WORST, LEAD TO PERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENCE PROCEEDINGS U/S 256. THE NORMAL RULE IS THAT THE REMEDY BY WAY OF REVIEW IS A CREATURE OF THE STATUTE AND UNLESS CLOTHED WITH SUCH POWER BY THE STATUTE, NO AUTHORITY CAN EXERCISE THE POWER. 6 . THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. ITAT; 143 CTR 446 HAS HELD THAT SUB - SECTION (1) OF SECTION 254 CONFERS AMPLE POWERS ON THE TR IBUNAL TO PASS SUCH ORDERS IN ANY APPEAL FILED BEFORE IT AS IT THINKS FIT. SUB - SECTION (2) OF SECTION 254 POSTULATES THAT THE TRIBUNAL MAY AMEND ANY ORDER PASSED BY IT UNDER SUB - SEC. (1) OF SECTION 254 WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM T HE RECORD. THE POWER OF THE TRIBUNAL CONFERRED BY SUB - SECTION (2) OF SECTION 254 FOR RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD CANNOT BE EXERCISED BY THE TRIBUNAL TO RECALL ANY ORDER PASSED BY IT UNDER M.A. NO.35/LKW/2017 PAGE 5 OF 8 SECTION 254(2). FURTHER, REVIEWING AND RECALLI NG AN ORDER IS ONE THING AND RECTIFYING A MISTAKE IN THE ORDER WHICH IS APPARENT FROM THE RECORD IS QUITE ANOTHER. IN THE ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW BY TRIBUNAL, THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED OR REVIEWED UNDER SECT ION 254(2) OF THE ACT. THE PROVISIONS OF SECTION 254 WERE ALSO EXAMINED BY THE HONBLE HIGH COURT OF M.P. IN THE CASE OF PRAKASH CHAND MEHTA VS. CIT; 220 ITR 277, IN WHICH THEIR LORDSHIPS HAVE HELD THAT SCOPE OF SECTION 254(2) OF THE INCOME - TAX ACT IS VE RY LIMITED AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. 7 . THEIR LORDSHIPS OF THE APEX COURT IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHERS; 82 ITR 50 (SC) HAVE HELD THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAK E AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR LORDSHIPS HAVE FURTHER HELD TH AT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING HIM IN THE WITNESS BOX, THE AUTHORITIES SHOULD NOT ACT UPON THAT STATEMENT WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY TO CROSS - EXAMINE THE WITNESS, BUT THAT IS A MATTER NOT FOR RECTIFIC ATION BUT IT IS A MATTER RELATING TO THE MERITS OF THE CASE AS TO WHETHER THE TRIBUNAL HAS GONE WRONG IN NOT CONSIDERING THE AFFIDAVIT OF A PARTICULAR PERSON AND HAS ACTED UPON THE STATEMENT OF THE SAME PERSON WHICH WAS RECORDED BY THE ITO WITHOUT BEING PE RMITTED TO CROSS EXAMINE BY THE ASSESSEE. THIS IS NOT A MATTER IN WHICH THE APPARENT ERROR IS INVOLVED BUT IT IS A MATTER MORE OF MERIT AND CANNOT BE RECTIFIED WITHIN THE SCOPE OF RECTIFICATION. THE POWERS OF THE TRIBUNAL WHILE MAKING A RECTIFICATION WER E AGAIN EXAMINED BY THE HON'BLE APEX COURT IN THE CASE OF CIT VS. HERO CYCLES PVT. LTD.; 228 ITR 463 IN WHICH THEIR LORDSHIPS HAVE HELD THAT RECTIFICATION CAN ONLY BE MADE WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER M.A. NO.35/LKW/2017 PAGE 6 OF 8 BEC OMES APPARENT FROM RECORD. RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. MOREOVER, A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS MISTAKE APPARENT FROM RECORD. IN THE CASE OF ITO VS. ITAT; 229 ITR 651 THEIR LORDS HIPS OF HON'BLE PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATION AFTER HOLDING THAT SECTION 254(2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) WITH A VIEW TO RECTIFYING A MISTAKE FROM RECORD. HOWEVER, S ECTION 254(2) DOES NOT AUTHORIZE THE TRIBUNAL TO REVIEW ITS ORDER OR TO SIT IN APPEAL OVER ITS EARLIER ORDER. IF IT IS DONE, IT WOULD AMOUNT TO AN AMENDMENT OF AN EARLIER ORDER WITH A VIEW TO RECTIFY A MISTAKE APPARENT FROM RECORD, BUT IT WOULD BE AN ORDE R PASSED ON REAPPRAISAL OF THE MATERIAL FACTS AND CIRCUMSTANCES AND ON A FRESH APPLICATION OF THE LEGAL POSITION WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. 8 . IN THE CASE OF MS. DEEKSHA SURI VS. ITAT; 232 ITR 395 THEIR LORDSHIPS O F HON'BLE DELHI HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE INCOME - TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT BEEN VESTED WITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW IT S OWN JUDGMENTS OR ORDERS. THE GROUNDS ON WHICH THE COURTS MAY OPEN OR VACATE THEIR JUDGMENTS ARE GENERALLY MATTERS WHICH RENDER THE JUDGMENT VOID OR WHICH ARE SPECIFIED IN THE STATUTES AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF SECTION 254(2) OF THE INC OME - TAX ACT, 1961 IS CLEAR. THE FOUNDATION FOR THE EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBV IOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. M.A. NO.35/LKW/2017 PAGE 7 OF 8 9 . SIMILAR VIE WS HAVE ALSO BEEN EXPRESSED BY HON'BLE GUWAHATI HIGH COURT IN THE CASE OF CIT VS. PRAHLAD RAI TODI 251 ITR 833 BY HOLDING THAT A BARE LOOK AT SECTION 254(2) WILL SHOW THAT THIS SECTION GIVES THE POWER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND NO T TO AMEND ANY ORDER PASSED BY IT AND TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSING OFFICER OR THE ASSESSEE. SO, WHEN WE SPEAK OF AMENDMENT OR RECTIFYING THE MISTAKE THE EARLIER ORDER CAN NEVER BE RECALLED BY THE TRIBUNAL . THE EARLIER ORDER MUST HOLD THE FIELD AND THE MISTAKE CAN BE RECTIFIED OR AMENDED CAN BE MADE TO THE ORDER. THE TRIBUNAL CANNOT, IN LAW AND FACTS, RECALL AND DESTROY ITS FINAL ORDER AS A WHOLE WITH A VIEW TO RECTIFY THE SAME ORDER UNDER SECTION 254(2) OF THE ACT. THE ACTION OF THE TRIBUNAL ACTUALLY AMOUNTS TO REVIEW OF ITS EARLIER ORDER AND THAT POWER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. 10 . WE, THEREFORE, FIND NO MERIT IN THESE MISCELLANEOUS APPLICATION OF THE ASSESSEE, AS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL IS POINTED OUT. THE LD. COUNSEL FOR THE ASSESSEE HAS TRIED TO DISPUTE THE FINDINGS OF THE TRIBUNAL WHICH HAS SET ASIDE THE ISSUE BACK TO LD. CIT(A) AND SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER SEC TION 254(2) OF THE ACT AND WE ACCORDINGLY REJECT THE MISCELLANEOUS APPLICATION. 11 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 / 0 5 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH MAY , 201 8 JJ: 0405 M.A. NO.35/LKW/2017 PAGE 8 OF 8 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR