Deputy Commissioner of Income-tax, Circle - 7, Pune V. Annuj Goel, Pune

MA 408/PUN/2022

AI Insights

The case involves the Revenue's application to recall a previous miscellaneous application order concerning an income tax assessment for the assessment year 2013-14. The Revenue sought to recall the order on the grounds that there was a mistake apparent from the record regarding the chargeability of interest under section 234A for self-assessment tax paid after the due date. The Tribunal, referencing various judicial precedents, concluded that it lacked the authority to entertain a miscellaneous application against its own earlier miscellaneous application, as such a provision does not exist in the Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124844 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-04-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-04-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 29-12-2022
• Other Referred Cases: ACIT Vs. Saurashtra Kutch Stock Exchange Ld., CIT Vs. Ramesh Electric & Trading Company, I.T.O. Vs. Mercedes Benz Education Academy, Pune, Shri Padam Prakash (HUF) Meerut Vs. I.T.O. Ward 2(1), Meerut, CIT Vs. President, Income Tax Appellate Tribunal, Mentha & Allied Products Co.Ltd. Vs. ITAT, CIT Vs. Aiswarya Trading Co., Dr.S.Panneerselvam Vs. ACIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. No. 408/PUN/2022 Arising out of M.A. 97/PUN/2021 arising out of ITA No. 1672/PUN/2017 (A.Y. 2013-14) The Dy. CIT Circle 7, Pune. Applicant Vs. Anuj Goel, L/H of Mr. Umesh Sitaram Goel, San Mahu Complex, 5 Bund Garden Road, Poona Club Pune-411 001 PAN: AAWPG 2098 Q Respondent Applicant by : Shri Ganesh B. Budruk Respondent by: None Date of Hearing : 21-04-2023 Date of Pronouncement : 21-04-2023 ORDER PER SHRI PARTHA SARATHI CHAUDHURY, JM: This Miscellaneous Application has been preferred by the Revenue u/s.254(2) of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟) with a prayer to recall the order of Tribunal dated 21-06-2022 passed in M.A. 97/PUN/2021 which in turn arises out of ITA No. 1672/PUN/2017 dated 24-02- 2020 for A.Y. 2013-14. 2. In this Misc. application, the Revenue has stated as under: 1. The Hon'ble Tribunal was pleased to dismiss the Miscellaneous Application of the Revenue in MA NO.971PUN/2021 (Arising out of ITA No.1 672IPUN/20 17) by Order dated 21106/2022, on the incorrect observation that "6. Now, the department has filed the present Misc. Application seeking rectification of order of the Tribunal stating that the Tribunal has wrongly presumed that in any case where there is an addition of more than Rs. I0 lakhs in a case selected under CASS prior written approval is needed from concerned CIT ", whereas the Department had filed the said Miscellaneous Application on the ground that as the Hon'ble Supreme Court and the Hon'ble High Court in the case of Pranoy Roy and the pursuant CBDT Circular No.2/20 15 dated 2 MA No.408 of 2022 Anuj Goel A.Y. 2013-14 10102/2015 has not granted any relaxation on the chargeability of interest u/s 234A in respect of the self-assessment tax paid after the due date of filing return of income, with a prayer to recall the impugned Hon'ble IT AT, Pune's order dated 24/02/2020 in ITA No. 1672IPUN/20 17 and decide the appeal of the assessee after taking into consideration the facts submitted in the Miscellaneous Application. 2. It is submitted that to this extent, there is a mistake apparent from record on the part of Hon'ble ITAT in the Order dated 2l.06.2022 of the Tribunal. 3. In view of this, it is submitted that the Order in MA No.971PUN/2021 (Arising out of ITA No. 1672IPUN/20 17) contains mistake apparent from record. Hence, it is prayed that the Hon'ble Tribunal may be pleased to recall the order in the interest of Justice and pass suitable order. 3. In this Misc. application filed by the Department, the department is actually agitating one miscellaneous application against another miscellaneous application. The Revenue has filed this misc. application seeking recalling of the earlier M.A. passed in M.A. No. 97/PUN/2021 arising out of ITA No. 1672/PUN/2017 for A.Y. 2013-14. 4. We have heard the rival contentions and perused the order of the Tribunal dated 24-02-2020. There are series of decisions by the Hon'ble Supreme Court as well as Hon'ble High Court expounding scope of exercising powers under section 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. For fortifying this view, we make reference to the decision of the Hon'ble jurisdictional High Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ld., 262 ITR 146 which has been upheld by the Hon'ble Supreme Court reported in 305 ITR 227. 3 MA No.408 of 2022 Anuj Goel A.Y. 2013-14 5. The Hon'ble Jurisdictional High Court in the case of CIT Vs. Ramesh Electric & Trading Company reported as 203 ITR 497 has held that the scope of section 254(2) is limited to rectification of mistake apparent from record itself and not rectification in error of judgment. The relevant observations of the Hon'ble High Court are as under: “The Tribunal cannot, in exercise of 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 the record itself.” 6. We find that on identical facts and circumstances and issues, the Pune Tribunal in M.A. No. 18/PUN/2019 against M.A. No. 49/PUN/2016 arising out of I.T.A No. 1916/PUN/2014 for .A.Y. 2007-08 in the case of I.T.O. Vs. Mercedes Benz Education Academy, Pune, order dated 14-5-2019, has categorically held that there is no provision in the Act to allow filing of Misc. application against the order passed by the Tribunal in another Misc. application. The relevant para is extracted as follows: “The applicant-Revenue is aggrieved by the aforesaid directions of Tribunal in miscellaneous order that registration u/s 10(23C)(vi) of the Act was deemed to be granted w.e.f. 30-9-2006. The Misc. Application filed by applicant-Revenue is not maintainable as there is no provision in the Act to allow filing of Misc.. application against an order passed by the Tribunal in Misc. application filed by the assessee. Hence, Misc. application moved by the Revenue is dismissed.” 7. We also find that Delhi Special Bench decision in M.A. No. 57/Del/2010 (in M.A No. 402/Del/2009) (in M.A. No. 05/Del/2008 for A.Y. 1995-96 arising out of ITA No. 2964/Del/2002, in the case of Shri Padam Prakash (HUF) Meerut Vs. I.T.O. Ward 2(1), Meerut, held as follows: 9. We have carefully considered the rival submissions in the light of material placed before us. It is true that sub-section (2) of Section 254 can be invoked only in a situation if there is a mistake in the order passed by the Tribunal under sub- section (1) of Section 254. The impugned miscellaneous application filed by the assessee is against the order passed on 27.11.2009 which is an order passed u/s 254(2). Therefore, principally, the application filed by the assessee has to be rejected on this ground alone and for this purpose, reliance can be placed on the following decisions:- (i) CIT Vs. President, Income Tax Appellate Tribunal – 196 ITR 838 (Orissa) wherein it has been held that to attract applicability of Section 254(2), a mistake which is sought to be rectified must be apparent from record and the same must be in any order passed 4 MA No.408 of 2022 Anuj Goel A.Y. 2013-14 under sub-section (1) of Section 254. The order referred to in Section 254(1) is one relating to an appeal filed either by the assessee or by the Revenue. The “appeal” referred to in the provision is one filed u/s 253. Therefore, the order which can be rectified must be one which has been passed by the Tribunal in an appeal filed u/s 253. An order rejecting an application for rectification u/s 254(2) cannot be rectified u/s 254(2). The same may relate to an appeal but is not an order passed by the Tribunal under sub-section (1) of Section 254 and thus, it was held that subsequent application filed by the assessee was rightly rejected by the Tribunal. (ii) In the case of Mentha & Allied Products Co.Ltd. Vs. ITAT – 244 ITR 470 (Del), after referring to the provisions of Section 254(1) and (2), it was held as under:- “7. The relevant provisions of s. 254 read as under: “254. Orders of Appellate Tribunal. – (1) The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-s. (1) and shall make such amendment if the mistake is brought to its notice by the assessee or the AO;.......” The aforenoted provisions of law are clear and unambiguous. A bare reading whereof leaves no doubt in our mind that the Tribunal is competent to rectify a mistake apparent from the record and amend any order which has been passed under sub-s.(1). Admittedly, by the impugned order, the Tribunal has sought to rectify the order passed by it under s. 256(1) of the Act and not an order passed under s. 254(1). We have no hesitation in holding that the Tribunal is not clothed with an inherent power to rectify/recall an order passed under s. 256(1) of the Act by taking recourse to s. 254(2) of the Act and, therefore, the impugned order is illegal and invalid. The view taken by us finds support from a decision of this Court in CIT vs. Kabir Das Investment Ltd. (1995) 124 CTR (Del) 259 : (1994) 210 ITR 898 (Del) : TC 55R.777.” 10. In the case of CIT Vs. Aiswarya Trading Co. – 196 Taxman 385 (Ker.), it was held that the Tribunal was justified in refusing to entertain an application filed by the Revenue under Section 254(2) to rectify the order issued by the Tribunal in an earlier rectification application filed by the assessee, as the second application on the very same issue is not maintainable before the Tribunal. 11. In the case of Dr.S.Panneerselvam Vs. ACIT – 319 ITR 135, it was held that the Tribunal having allowed first rectification petition, second petition was not maintainable; remedy by way of appeal was the only course open. 12. If the application filed by the assessee is viewed in the light of aforementioned judicial pronouncements, then it will become clear that the relief which is being sought by the assessee by way of impugned rectification application is not legally tenable for the reason that the Tribunal has no power to adjudicate upon subsequent application filed u/s 254(2). Here, it may be the case of the assessee that earlier order against which impugned rectification application is filed is also an order passed on subsequent application, then the only course permissible to the assessee is to file an appeal against that order and not to approach the Tribunal to contend that the said order was an invalid order, therefore it should be recalled.” 8. Therefore, the parameters of law has been clearly set out in the aforestated judicial pronouncements that Misc. application cannot be filed 5 MA No.408 of 2022 Anuj Goel A.Y. 2013-14 against another Misc. application and the Tribunal has no power to adjudicate upon subsequent application u/s 254(2) of the Act. In view of the aforestated discussion, we find no force in the Misc. application filed by the Revenue which is rejected and dismissed. 9. In the result, the Misc. applications filed by the Revenue is dismissed. Order pronounced in the open court on 24 th day of April 2023 Sd/- sd/- (INTURI RAMA RAO) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER Pune; Dated : 24 th day of April 2022 Ankam Copy of the Order forwarded to 1. The Appellant. 2. The Respondent. 3. The CIT(Appeals)-IT/TP Pune. 4. The DIT (TP/IT) Pune 5. DR, ITAT, “A” Bench, Pune. 6. Guard File. BY ORDER, Private Secretary ITAT, Pune. /// TRUE COPY /// 6 MA No.408 of 2022 Anuj Goel A.Y. 2013-14 Date 1 Draft dictated on 21-04-2023 Sr.PS/PS 2 Draft placed before author 24-04-2023 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on 24-04-2023 Sr.PS/PS 7 Date of uploading of order 24-04-2023 Sr.PS/PS 8 File sent to Bench Clerk 24-04-2023 Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order