SHRI PRAMOD MAROTRAO WAYLALWAR, NAGPUR V. DEPUTY COMMISSIONER OF INCOME TAX, AMRAVATI, AMRAVATI

MA 42/NAG/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0893 (ITAT-NAGPUR)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-07-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-07-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 28-05-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHAY Y. MARATHE
• Keywords: Search and seizure
• Section: 154; 143(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI K.M. ROY, ACCOUNTANT, MEMBER MA No. 42/NAG/2024 (Arising out of ITA No. 102/NAG/2022 (Assessment Year : 2013-14) Shri Pramod Marotrao Waylalwar, Waylalwar House, Chamorshi, District - Gondia ................ Appellant v/s Deputy Commission of Income Tax, Amravati ................ Respondent Assessee by : None Revenue by : Shri Abhay Y. Marathe, Sr. DR Date of Hearing – 19/07/2024 Date of Order – 19/07/2024 O R D E R PER V. DURGA RAO, J.M The present Miscellaneous Application No. 42/NAG/2024 is arising out of ITA No. 102/NAG/2022, wherein the appeal of the revenue was allowed. 2. The assessee has submitted as follows: “In the matter above appeal order, applicant assessee humbly submits that Hon'ble ITAT had passed order on 29/02/24 in above Appeal, Shri Pramod Marotrao Waylalwar vs.DCIT Amravati MA NOS. 42/NAG/2024 (ARISING OUT OF ITA No.102/Nag./2022) Page | 2 which was downloaded by us from ITAT portal on 25/04/24 (officially not received till date) and the following mistakes both of fact and law have crept therein. The apparent error: Facts as available on records are in brief as under:- The LAO had computed income u/s 143(1) at figure of violently higher net profit as per P & L account as erroneously entered in the schedule of return of income; as against real, much lower profits as per audited P&L account available with return of income. Both figures were part of records, hence it is an apparent mistake. The LAO rejected application u/s 154; but Ld. CIT(A) held it to be an apparent mistake and ordered to assess income as per audited accounts after verification. The LAO did no verification as per direction of Ld. CIT(A), nor pointed out anything wrong before Hon'ble ITAT. But Hon'ble ITAT reverted the order of Ld. CIT(A). It is most humbly and vehemently submitted that there is undisputedly a mistake apparent from records in the order of Hon'ble ITAT because: (i) Net profits in civil construction contract business could not be so violently high at 58% of turnover, (ii) Such high quantum of net profits was not at all supported by figures in the balance sheet column of return of income itself, because there was no corresponding asset in the balance sheet which was part of return itself, representing such high net profit, (iii) Audited figures are with proper evidences duly certified by independent auditor without any qualification; while return of income figures are without any evidence proving beyond doubt that there was an inadvertent error in filling figure in the return of income, (iv) The view that this is an apparent mistake is supported by a catena of decisions of Hon'ble ITAT and of Hon'ble HCs. Copy of records as available with LAO and detailed arguments and court decisions are given in the PB annexed herewith. Shri Pramod Marotrao Waylalwar vs.DCIT Amravati MA NOS. 42/NAG/2024 (ARISING OUT OF ITA No.102/Nag./2022) Page | 3 In view of above apparent errors of fact and law, the applicant humbly prays that the Hon'ble Tribunal may be pleased to rectify the mistakes and amend the order in the interest of justice. Prayed accordingly.” 3. We have carefully gone through the relevant operating portion of the ITAT’s Order. Paras 5 and 6 of the same are reproduced below: “5. It is in this factual backdrop that the first and foremost issue which arises for our apt adjudication is that of maintainability of the assessee's rectification itself. As it has already come on record, the Assessing Officer had rejected the assessee's rectification going by the relevant figures in his return of income only. Mr. Ved vehemently submits as per the NFAC's detailed discussion that such a high rate of profit is unbelievable in assessee's line of business when compared to the identical cases of contractors. We are afraid that such a question involving subjective adjudication of comparable in the assessee's line of business could hardly be treated as an instance of rectification u/sec.154 proceedings going by hon'ble apex court's landmark decision in TS Balram, ITO vs. Volkart Bros. [1971] 82 ITR 50 (SC). Their lordships have settled the law longback that purpose of sec. 154 rectification is only to deal with an apparent mistakes on record than those involving detailed roving enquiries. We further wish to emphasize that the NFAC's detailed discussion has nowhere reversed the Assessing Officer's categoric findings on this legal aspect of maintainability of assessee's rectification petition. 5.1. Mr. Ved next submitted that the Revenue has wrongly quoted the case law of Goetze (India) Ltd. vs. CIT [2006] 204 CTR 182 (SC) wherein their lordships' made it amply clear that powers of appellate authority(ies) exercising their respective jurisdiction(s) under the provisions of the Act is not impinged upon for the purpose of entertaining a new claim. We are of the considered view that the said judicial precedent nowhere dealt with an instance of sec. 154 rectification. Be that as it may, once we have concluded that the assessee's rectification itself is not maintainable in the peculiar facts of the instant case wherein the Assessing Officer's clear-cut findings have not been reversed by the NFAC's; all other aspects deserve to be treated as academic only. The Revenue succeeds in it's first and foremost substantive grievance in very terms. Ordered accordingly. 6. This Revenue's appeal is allowed in above terms” 4. There is no mistake apparent from record and the appellant/assessee in the garb of miscellaneous application is trying to make out the review of Shri Pramod Marotrao Waylalwar vs.DCIT Amravati MA NOS. 42/NAG/2024 (ARISING OUT OF ITA No.102/Nag./2022) Page | 4 the case. We find that the scope of the rectification u/s 254(2) of the I.T. Act is very limited. There cannot be any review of the decision. 5. Even otherwise also once in the latest decision in the case of Reliance Telecom Ltd., the Hon'ble Supreme Court have clearly held that the powers u/s. 254(2) of the Income Tax are akin to Order XLVII Rule 1 CPC, then it cannot be held that scope of power u/s.254(2) is beyond and much larger than scope of review as given in the Order XLVII Rule 1 of CPC. In fact, the scope of Section 254(2) is much limited and the scope of review is much wider. Accordingly, in view of the law laid down by the Hon'ble Constitutional Bench of the Hon'ble Supreme Court and several other judgments of Hon'ble Supreme Court, we hold that order of the Tribunal cannot be recalled based on the subsequent judgment of the Hon'ble Supreme Court when the order of the Tribunal had attained finality between the parties. Consequently, the Miscellaneous Application filed by the assessee is dismissed. 6. In the result, Miscellaneous Application of the assessee is dismissed. Order pronounced on 19/07/2024. Sd/-- K.M. ROY ACCOUNTANT MEMBER Sd/- V. DURGA RAO JUDICIAL MEMBER NAGPUR, DATED: 19/07/2024 Shri Pramod Marotrao Waylalwar vs.DCIT Amravati MA NOS. 42/NAG/2024 (ARISING OUT OF ITA No.102/Nag./2022) Page | 5 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Nagpur; and (5) Guard file. True Copy By Order Rajesh V. Jalit Private Secretary (On contract) Sr. Private Secretary ITAT, Nagpur