GIRDHAR GOPAL RASTOGI, MIRZAPUR V. I.T.O. WARD 3(1), MIRZAPUR

MA 5/ALLD/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6017 (ITAT-ALLAHABAD)
• Duration Of Justice: 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R.K. KALYANI; R.N
• Keywords: Rectification of order; Competent authority
• Section: 131; 133A; 143(2); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD ‘SMC’ BENCH, ALLAHABAD (THROUGH VIRTUAL COURT), BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER Miscellaneous Application (M.A.) No. 05/ALLD/2021 Arising out of ITA No.162/ALLD/2019 Girdhar Gopal Rastogi, Prop. Om Jwellers, Dhundhi Katra, Mirzapur, U.P. PAN-AANPR8525N v. Income Tax Officer, Ward-III(1), Mirzapur, U.P. (Appellant) (Respondent) Appellant by: Mr. R.K. Kalyani, C.A. & Mr. R.N. Yadav, Adv Respondent by: Mr. A.k. Singh, Sr. DR Date of hearing: 17.12.2021 Date of pronouncement: 21.12.2021 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: By way of this misc. application, the assessee is seeking rectification of mistake / recalling of the order dated 21 st October, 2021 passed by this Tribunal. The learned AR of the assessee has submitted that in the appeal in ITA No. 162/Alld/2019, the assessee has raised an additional ground challenging the validity of selecting the case of the assessee under compulsory scrutiny based on incomplete survey dated 06.01.2021. The learned AR has further submitted that while deciding the additional ground, this Tribunal has presumed that the statement of the assessee recorded under section 131 by the Assessing Officer on 27.01.2012 is part and partial on survey proceedings whereas the correct fact is that the Assessing Officer was not authorized officer to carry out survey under section 133A of Income Tax Act. He has referred to the authorization for survey dated 06.01.2012 and submitted that one Sri. K.N. Sonkar MA No. 05/Alld/2021 in ITA No. 162/Alld/2019 Sh. Girdhar Gopal Rastogi 2 ACIT alongwith Sri. K.C. Kushwaha were authorized to carry out the survey under section 133A vide authorization dated 06.01.2012 by Shri. T.P. Shulk, JCIT, Range-3, Mirzapur. A copy of the authorization is filed by the assessee. Thus, the learned AR has submitted that the statement recorded by the Assessing Officer on 27.01.2012 is not in pursuant to the survey and is not part and partial of the survey proceedings. Even otherwise there is no criteria under which the case of the assessee was selected for compulsory scrutiny by the Assessing Officer without taking the prior approval of the competent authority. Thus learned AR has submitted that the assessee raised this legal ground regarding the validity of the taking up the compulsory scrutiny without any authority / jurisdiction. He has thus contended that there is an omission on the part of the Tribunal to consider a crucial fact while deciding the additional ground. He has referred to the FIR filed by Sri. K.N. Sonkar with City Kotwali, Mirzapur and also referred to the submission of the department wherein it is admitted that this survey was not completed and remained incomplete. The learned AR has further submitted that as per the Board Instructions No. 10/2013 dated 5 th August, 2013 which were further amended on 20 th September, 2013 the criteria provided for compulsory scrutiny in case of survey is only when there is an impounding of material. In the case of the assessee nothing has been impounded by the department during the survey and therefore, in the absence of any approval by the competent authority, the case does not fall in the compulsory scrutiny assessment criteria. He has relied upon the judgment of Hon'ble Jurisdictional High Court in the case of Commisisoner of Income Tax vs. Rajiv Sharma 336 ITR 678 and submitted that the Hon'ble High Court has held that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. The learned AR has also relied upon various decisions wherein it is held that the Tribunal having lost sight of material fact at the time of passing the order amounts to an error / mistake apparent from record which could be rectified under section 254(2) of the Income Tax Act. He has also relied upon the MA No. 05/Alld/2021 in ITA No. 162/Alld/2019 Sh. Girdhar Gopal Rastogi 3 judgment of Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd vs. Commissioner of Income Tax 295 ITR 466 and submitted that a mistake by the reason of the oversight on the part of the Tribunal is a mistake apparent from record which can be rectified under section 254(2) of the Income Tax Act. The learned AR has thus submitted that the Tribunal has also not considered the Circular/ Notification issued by the CBDT prescribing the criteria / guidance for taking up or selecting scrutiny cases under compulsory manual. Thus he has prayed that he impugned order may be recalled and the matter may be heard afresh. 2. On the other hand, learned DR has submitted that there is no apparent mistake in the impugned order of the Tribunal as the Tribunal has decided the issue by speaking order on merits which cannot be reviewed in the proceedings under section 254(2) of the Income Tax Act. The learned DR has further contended that the scope of rectification of mistake under section 254(2) of the Act is very limited and does not permitted the party to re-argue and pursue the Tribunal to review its own speaking / reasoned order. He has relied upon a series of decision on this point that the Tribunal has no jurisdiction to review its own order passed on merits. Further the learned DR has contended that the assessee cannot challenge the jurisdiction of the Assessing Officer to issue the notice under section 143(2) after the completion of the assessment as the assessee has not raised any objection during the assessment proceedings provided so under the provisions of section 124(3) of the Income Tax Act. Therefore, the ground taken by the assessee challenging the jurisdiction of the Assessing Officer is otherwise not maintainable. He has supported the impugned order of the Tribunal. 3. I have considered the rival submissions as well as the relevant material on record. In the Misc. Application, the assessee has mainly pointed out the mistake in the impugned order with respect to the additional ground raised by the assessee. The MA No. 05/Alld/2021 in ITA No. 162/Alld/2019 Sh. Girdhar Gopal Rastogi 4 Tribunal has decided the additional ground against the assessee by observing in para 8 of the impugned order as under:- “8. In view of the fact that the survey proceedings under section 133A were duly conducted on 6.1.2012 but due to interruption, the political leaders and local leaders of the Vyapar Mandal, the proceedings could not reach to the conclusion and were to stopped unconcluded. The Assessing Officer, thereafter, conducted a post survey enquiry by issuing notice under section 131 to the assessee to appear alongwith the books of accounts and other records. In response to the submissions issued under section 131 of the Act, the assessee appeared alongwith the record and books of accounts and his statement was also recorded under section 131 of the Act. Therefore, apart from the statement recorded under section 133A of the Act on 6.1.2012, a statement of the assessee was also recorded under Section 131 of the Act by the Assessing Officer on 27.01.2012. It appears that there is no much gap between the survey and the post survey enquiry conducted by the Assessing Officer therefore the post survey enquiry are part and partial of the survey proceedings and would deem to be concluded on the conclusion of the post survey enquiry on 27.01.2012. Thus, when the fact of the conducting the survey as well as the post survey enquiry is not in dispute then the case of the assessee would certainly fall under the category of selection under compulsory scrutiny. Accordingly, in the facts and circumstances of the case, I do not find any substance or merit in the additional ground raised by the assessee. The same is dismissed. Ground no. 1 of the original grounds is general in nature and does not require any specific adjudication.” 4. Thus, it is clear that the Tribunal has considered the statement recorded by the Assessing Officer under section 131 on 27.01.2012 as part and partial of the survey proceedings and deemed the conclusion of the survey proceedings as on the date of the said statement instead of the date of survey itself. At the time of deciding this issue, the Tribunal presumed that the Assessing Officer has conducted the survey as well as recorded the statement of the assessee under section 131 in the post survey enquiry however, the fact now brought to the notice of the Tribunal is that the officer who was authorized to carry out the survey was different from that of the Assessing Officer. The Assessing Officer was not a party to the authorized team to carry out the survey under section 133A of the Income Tax. This fact is not in dispute as the assessee has filed the authorization letter. The department has also not disputed this fact that the Assessing Officer was not authorized for this particular survey carried MA No. 05/Alld/2021 in ITA No. 162/Alld/2019 Sh. Girdhar Gopal Rastogi 5 out on 06.01.2012. Therefore, an order passed by the Tribunal by presuming incorrect facts certainly amounts a mistake apparent from record as a crucial fact was remained to be considered. Further the Tribunal while deciding this issue has also not considered the relevant instructions of the CBDT providing the criteria / guidance for selecting the cases under compulsory scrutiny without taking prior approval of the authority. In the case in hand, the Assessing Officer has initiated the compulsory scrutiny without any prior approval of the competent authority and therefore, the question arises whether the initiation of the compulsory scrutiny by the Assessing Officer is in accordance with the criteria prescribed by the CBDT or not? It is settled proposition of law that the scope and jurisdiction of this Tribunal under section 254(2) is very limited and circumscribed to rectify a mistake apparent from record. Therefore, the Tribunal cannot review its own order in the proceedings under section 254(2) of the Act. The case law relied upon by the learned DR on this point are binding and there is no quarrel on this issue however, the failure to consider an important fact or contention raised during the hearing would certainly be a mistake apparent from record as the said relevant fact is likely to effect the decision on an issue. Non consideration of such a crucial and relevant fact and point out which is going to influence the decision is an apparent mistake from record requires to be rectified under section 254(2) of the Income Tax Act. The learned DR has also relied upon the various decisions on the point that the assessee has not raised any objection regarding jurisdiction of the Assessing Officer during the assessment proceedings and therefore cannot be permitted to raise this issue. It is pertinent to note that those decisions are only on the issue of jurisdiction of the Assessing Officer to assess the assessee and not on the validity of the initiation of compulsory scrutiny. Therefore, even if the Assessing Officer is having jurisdiction to assess the assessee, he may not have the authority to initiate the compulsory scrutiny if the prescribed criteria for such selection of compulsory scrutiny are not satisfied. Hence the decision relied upon by the learned DR on the jurisdiction of the Assessing Officer are not relevant MA No. 05/Alld/2021 in ITA No. 162/Alld/2019 Sh. Girdhar Gopal Rastogi 6 for the issue under consideration. As there is an apparent mistake in the impugned order and particularly while deciding the additional issue which goes to the root of the matter then, in the facts and circumstances of the case and in the interest of justice, the impugned order dated 21 st October, 2021 of this Tribunal is recalled for deciding the appeal of the assessee afresh. The Registry is directed to re-fix the appeal of the assessee for fresh hearing and adjudication on 24 th January, 2022. Notice be issued to the parties. 5. In the result, the Misc. Application is allowed. Order pronounced in the open Court on 21.12.2021 through video conferencing. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 21/12/2021 sh Copy forwarded to: 1. Appellant – 2. Respondent – 3. CIT(A) , Allahabad 4. CIT 5. DR - By order Assistant Registrar