INCOME TAX OFFICER,WARD-I (2), JALANDHAR V. SHRI JASBIR SINGH , JALANDHAR

MA 4/ASR/2021

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8446 (ITAT-AMRITSAR)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-11-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-11-2022
• Assessment Year: misc
• Appeal Filed On: 23-11-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER M. A. No. 4/Asr/2021 (Arising out of ITA No. 426/Asr/2018) Assessment Year: 2011-12 Income Tax Officer, Ward-1(2), Jalandhar, Punjab Vs. Sh. Jasbir Singh S/o Mohinder Singh, R/o 296, Lajpat Nagar, Jalandhar, [PAN: ACAPS 8461R] (Appellant) (Respondent) Appellant by : Sh. Surinder Mahajan, CA Respondent by: Sh. Rajiv Wadhera, Sr. DR Date of Hearing: 11.11.2022 Date of Pronouncement: 16.11.2022 ORDER Per Dr. M. L. Meena, AM: The captioned miscellaneous application was filed by the Revenue order passed by the Tribunal dated 16.01.2020 in ITA No. 426/Asr/2018 for Assessment Year 2011-12. 2. The ld. AR submitted that the ITAT Amritsar Bench has quashed the reopening and reassessment proceedings holding that the reasons recorded by the AO to justify reopening the assessment u/s 147 fails and, MA No. 4/Asr/2021 ITO v. Jasbir Singh 2 therefore, the very assumption of jurisdiction to reassess the income of the assessee is held to be invalid quashed the reopening and the consequent reassessment order framed by him and ignoring the ratio is laid down by the Hon’ble Supreme Court in the case of Civil Appeal No. 7731 of 2002, GKN Driveshafts (India) Ltd. v. Income Tax Officer and Ors. 3. Having considered the judicial precedents and other case laws cited before us by both the parties duly adjudicated the legal ground of reopening of the assessment and validity of the order u/s 147 of the Act and the Hon’ble Tribunal has stated categorically that the AO has failed to state in his reasons that how and why the alleged agreements were an afterthought and do not have legal sanction and accordingly hold that there was actually no reasons to form a belief about the escapement of any income of the assessee. The counsel argued that the examination of the reassessment/reopening u/s 147 and the validity of the assessment order in the miscellaneous application in the proceedings under miscellaneous application and the amount is reviewed-revisited of the order passed by the tribunal itself which would be in violation of the latest judgment of the Hon’ble Apex Court in the case of CIT (IT-4), Mumbai v. Reliance Telecom Ltd. [2021] 133 taxmann.com 41 (SC) wherein the Hon’ble Apex Court has observed as under: MA No. 4/Asr/2021 ITO v. Jasbir Singh 3 “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. 5. 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; (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 (iii) 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.” 4. Respectively following the Hon’ble Apex Court judgment in the case of Reliance Telecom Ltd. (supra), the recalling observation and finding MA No. 4/Asr/2021 ITO v. Jasbir Singh 4 given by way of speaking order of the ITAT is beyond the jurisdiction of the tribunal, therefore, we hold that miscellaneous application filed by the Revenue has no merits and as such dismissed. 5. In the result, the miscellaneous application filed by the Revenue is dismissed. Order pronounced in the open court on 16.11.2022 Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order