Vardhaman Nagari Sahakari Path Sanstha Ltd, Aurangabad V. Income-Tax Officer, Ward 1(5), Aurangabad

MA 396/PUN/2022

AI Insights

The case revolves around the appeal by M/s Vardhaman Nagari Sahakari Path Sanstha Ltd., which sought to recall an earlier Tribunal order that dismissed their appeal due to an uncondoned delay in filing. The Tribunal initially had not decided on the condonation of delay during the hearing but proceeded to hear the matter on merits. The assessee contended that the delay was effectively condoned as the Tribunal heard the appeal on merits, and also argued that the delay was only 179 days, contrary to the 239 days stated in the order. The Tribunal, however, found no indication in the records that the delay was condoned and noted that the figures cited by the assessee were incorrect. Consequently, the Tribunal dismissed the MA, emphasizing that there was no apparent mistake in the original order that warranted a recall under section 254(2) of the Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136311 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-07-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-06-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 26-12-2022
• Other Referred Cases: CIT Vs Earnest Exports Ltd., CIT Vs Anamika Builders, CIT VS Ideal Engineers, Agarwal Warehousing Vs CIT, Hindustan Lever Ltd., TS Balram ITO Vs M/s Volkart Brothers
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HARI KRISHAN
• Section: 251; 254(2)

Judgement Text

॥ आयकर अपीलीय न्यायाधिकरण, पुणे “बी” न्यायपीठ, पुणे में ॥ ITAT-Pune Page 1 of 6 IN THE INCOME TAX APPELLATE TRIBUNAL, PUNE “B” BENCH, PUNE BEFORE SHRI S S VISWANETHRA RAVI, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER आयकर अपऩल सं. / MA No. 396/PUN/2022 (Arising out of ITA No.475/PUN/2020) निर्धारण वर्ा / Assessment Year : 2011-12 Vardhaman Nagari Sahakari Path Sanstha Ltd., Mahatma Gandhi Rd., Vaijapur Aurangabad - 423701 PAN : AAAAV9150F . . . . . . अपीलार्थी / Appellant बनाम / V/s. Income Tax Officer, Ward-1(5), Aurangabad . . . . . . .प्रत्यर्थी / Respondent द्वारा / Appearances Assessee by : Shri Hari Krishan Revenue by : Shri Suhas Kulkarni सुनवाई की तारीख / Date of conclusive Hearing : 16/06/2023 घोषणा की तारीख / Date of Pronouncement : 25/07/2023 आदेश / ORDER PER G. D. PADMAHSHALI, AM; By this Miscellaneous Application [for short „MA‟] the assessee seeks to recall the second appellate order of this Tribunal passed u/s 254(1) of the Income Tax Act [for short „the Act‟] in ITA No. 475/PUN/2020 dt. 09/09/2022, this came to dismiss by rejecting to condone the delay in instituting the appeal. M/s Vardhman Nagari Sahakari Path Sanstha Ltd., MA No. 396/PUN/2022 (Arising out of ITA No.475/PUN/2022) ITAT-Pune Page 2 of 6 2. During the course of hearing, the Ld. AR contended that, the Tribunal while dealing with the appeal had in the first instance condoned the delay caused in instituting the appeal u/s 253(1) of the Act and thereafter the Tribunal heard the matter on merits. The hearing of appeal on merits was succeeded only when the Tribunal thought fit to condone the delay, therefore the Tribunal’s decision of dismissing the appeal for rejecting to condone the delay de-facto constitutes an apparent mistake. Since this apparent mistake in law well qualifies to be rectified u/s 254(2) of the Act, for the reason the impugned order is fit to be recalled for adjudication on merits. The Ld. AR further referring to point number 5-6 of the MA has submitted that, the effective delay in instituting assessee’s appeal was only 179 days as against 239 days stated in the impugned order. This factual incorrectness on the basis of which the Tribunal has dismissed the appeal is sufficient to form a mistake for the purpose of section 254(2) of the Act, therefore in all the fairness the impugned order warrants recall. Per contra, the Ld. DR adverting to the impugned order has vehemently dislodged the claim of the applicant 3. We have heard the rival contentions of both the parties; and subject to the provisions of rule 18 of Income Tax Appellate Tribunal Rules, 1963 [for short „ITAT-Rules‟] perused the material placed on records and duly considered the facts of the case in the light of settled legal position which are forewarned to applicable parties. M/s Vardhman Nagari Sahakari Path Sanstha Ltd., MA No. 396/PUN/2022 (Arising out of ITA No.475/PUN/2022) ITAT-Pune Page 3 of 6 4. We note here that the applicant has two fold contentions in support of its prayer for recalling the order; (1) since the matter was heard on merits, therefore presumably delay was condoned and (2) the rejection to condone the delay is based on incorrect figure, this sufficiently exhibits the existence of mistake therein. 5. In this context, our verification of case records ostensibly transpired that, the Tribunal neither during the course of hearing nor after its conclusive hearing had indicated its decision on condonation of delay. Perusal of case register/s also confirms the very fact that, after considering affidavit/s, condonation petition and rival contentions noted therein, the Tribunal in open court had orally stated as ‘will consider and without prejudice to our (Tribunal’s) decision thereon we proceed to hear the matter on merits’. It is also a fact borne out of records that, after conclusive hearing, the Tribunal did neither pronounce nor indicate its decision either on delay condition or merits of the case. Therefore, the applicant’s presumption is baseless, without merits and remained unsupported by any judicial precedents. 6. Insofar as the number of days of delay is concerned, its apt to state that, the assessee in its undated application for condonation stated to have instituted the appeal after the delay of 314 days as against separate affidavit/s (dt. 13/07/2020) one sown by it and other by chartered accountant, wherein the number of delay in M/s Vardhman Nagari Sahakari Path Sanstha Ltd., MA No. 396/PUN/2022 (Arising out of ITA No.475/PUN/2022) ITAT-Pune Page 4 of 6 instituting the appeal were shrewdly kept blank, the copies thereof are placed herein for sake of clarity; a) Assessee’s affidavit; b) Chartered Accountant’s affidavit; M/s Vardhman Nagari Sahakari Path Sanstha Ltd., MA No. 396/PUN/2022 (Arising out of ITA No.475/PUN/2022) ITAT-Pune Page 5 of 6 7. In addition to above, it is also imperative to quote that, the impugned order vide para 9 has unfailingly recorded its observation regarding endorsement made by the Registry on the case file in exact terms of condonation petition filed by the assessee. It is further worthy to underline that Tribunal has noted the effective number of delay days in para 11.4 only when same was demonstrated by the Ld. AR in the light of Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020. Thus in these given facts and circumstances of the case, the claim of the applicant made in para 5-6 of present MA are factually incorrect and contrary to records. Therefore in our considered view the prayers of the applicant deserve to be called off as these seek to review the decision rendered u/s 254(1) of the Act. 8. Apart from aforestated observation, since the appellant assessee failed to bring out to our notice any rectifiable mistake apparent from record which can indeed be rectified u/s 254(2) of the Act. We note that, for exercising the jurisdiction u/s 254(2) of the Act, the assessee necessarily shall have to prove the very existence of a mistake apparent from the records which triggers amendment and in the event of failure, the MA fails. It is well settled Law that, the Tribunal has no power to review its own order once it is passed based on facts. We find our this view has been fortified by plethora of judicial precedents including the decision of Hon’ble Jurisdictional Bombay High Court in the case of ‘CIT Vs Earnest Exports Ltd.’ reported at 323 ITR 577 (Bom), M/s Vardhman Nagari Sahakari Path Sanstha Ltd., MA No. 396/PUN/2022 (Arising out of ITA No.475/PUN/2022) ITAT-Pune Page 6 of 6 decision of Hon’ble Calcutta High Court in the case of ‘CIT Vs Anamika Builders’ reported at 251 ITR 585 (Cal.), decision of Hon’ble A.P. High Court in the case of ‘CIT VS Ideal Engineers’ 251 ITR 743 (AP) and decision of Madhya Pradesh High Court in the case of ‘Agarwal Warehousing Vs CIT’ 257 ITR 235 (MP) and the Hon’ble Calcutta High Court in the case of ‘Hindustan Lever Ltd.’, 284 ITR 42, whereby the Hon’ble Lordship have held that, ‘mistake must be so obvious that it can be easily corrected, to with an arithmetic error, wrong quotation of Section etc., and not on debatable issues.’ 9. Thus in the absence of any obvious mistake in the impugned order brought to our notice, the present MA of the assessee stands legless in the light of ratio of Hon’ble Supreme Court rendered in the landmark case of ‘TS Balram ITO Vs M/s Volkart Brothers’ reported in 82 ITR 50 (SC). 10. In result, the present MA of the assessee stands DISMISSED. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Tuesday 25 th day of July, 2023. -S/d- -S/d- S. S. VISWANETHRA RAVI G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / PUNE ; ददनाांक / Dated : 25 th day of July, 2023. आदेश की प्रधिधलधप अग्रेधिि / Copy of the Order forwarded to : 1.अपीलाथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The Pr. CIT, Aurangabad 4. The CIT(A), Aurangabad (M.H.-India) 5. DR, ITAT, Pune Bench, Pune. 6. गार्डफ़ाइल / Guard File. Ashwini आदेशानुसार / By Order, वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादधकरण, पुणे / ITAT, Pune.