Smt. Sunita Devi, Ghaziabad V. ITO, Ghaziabad

MA 532/DEL/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3590 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 20-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

1 MA nos. 531 & 532/Del/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “G”: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A. No. 531/Del/2018 ( In ITA No. 5751/DEL/2015 [Assessment Year: 2010-11 Sudesh kumar Chaudhary, R-6/12A, Raj Nagar, Ghaziabad. PAN- ABYPC0246R Vs Income-tax Officer, Ward-2(3), Ghaziabad Applicant Respondent AND M.A. No. 532/Del/2018 ( In ITA No. 5752/DEL/2015 [Assessment Year: 2010-11 Sunita Devi, R-6/12A, Raj Nagar, Ghaziabad. PAN- AEUPD2693E Vs Income-tax Officer, Ward-2(3), Ghaziabad Applicant Respondent Applicants by Sh. Anoop Sharma Adv. & Sh. Sanjay Prashar, Adv. Respondent by Sh. Sanjay Kumar Sr. DR Date of hearing 13.05.2022 Date of pronouncement 12.07.2022 ORDER PER KUL BHARAT, J.M: The above captioned misc. applications u/s 254(2) of the Income-tax Act, 1961, hereinafter referred to as the “Act”, have been preferred by the assessees, 2 MA nos. 531 & 532/Del/2018 seeking recalling of the consolidated order dated 22.02.2018 passed by the Income Tax Appellate Tribunal Delhi Bench “G” in ITA no. 5751/Del/2015 in the case of Sudesh Kumar Chaudhary and in ITA no. 5752/Del/2015 in the case of Sunita Devi, dismissing the appeals preferred by the assessees. Since common contentions have been made by the assessee in the impugned misc. applications, both the misc. applications were heard together and are being disposed of by a consolidated order, for the sake of convenience. 2. Learned counsel for the assessee reiterated the submissions made in the misc. applications. For the sake of clarity, we reproduce the contents of M.A. No 532/Del/2018, as under: “APPLICATION FOR RESTORATION OF APPEAL U/S 254(2) OF I.T. ACT FOR RECALLING/RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 23-02-2018 IN THE ABOVE MATTER. It is respectfully submitted as under: 1. The present application is being made in the above matter with the request that after hearing the assessee on this, the prayer mentioned herein may kindly be granted. 2. The facts have already been stated in paragraphs 1 to 6 of the order of Hon'ble ITAT and are not being repeated. 3. That owing to certain mistakes and lapses occurring in the order on account of the following reasons, this application is being moved for the necessary rectification/amendment/recalling the said order. The expressions concealed the income arising from transfer of capital asset and failed to declare the gains in its original return of income. Does it tantamount to furnishing of inaccurate particulars of income? 3 MA nos. 531 & 532/Del/2018 The appellant seeks recalling, setting aside of the order because of the findings/inferences given in Para 7 and 8 of its order (the same are not reproduced herein but will be referred to at the time of hearing), on the following ground: A. The Hon'ble ITAT erred in holding that the appellant was charged for twin defaults and this was right as it had concealed the income arising from transfer of capital asset and failed to disclose the capital gain in its return of income and that tantamount to furnishing inaccurate particulars of income and no infirmity existed in the order of the authorities. B. On going through section 271(i)(c) of I.T. Act, it is self apparent that it has got two limbs are concealment of particulars of income or furnishing inaccurate particulars of such income. Thus, the two limbs of charge are separate, distinct and contrary to each other. C. An income whose particulars have been totally concealed, the question of furnishing inaccurate particulars of such income in the return does not arise. That furnishing inaccurate particulars of income unnecessarily postulates/implies that such income has been disclosed somewhere and items which have not been disclosed anywhere, how can some inaccurate particulars of such an item be furnished. D. And that further if some inaccurate particulars have been furnished of such an item, then there cannot be any concealment of such particulars of income. E. The authorities were wrong including the Hon'ble ITAT that the appellant's case fall in both the limbs of charge as well as the offences committed. F. The initiation of penalty proceedings u/s 271(i)(c) on both the charges together and levying of penalty on the same is not in accordance with law. The notice itself being defective, unspecific, shows non application of mind and the penalty should not have been confirmed. G. That if the charge of penalty is wrong and unspecific in the nature, 4 MA nos. 531 & 532/Del/2018 then all proceedings and orders passed have to be cancelled. If the notice itself is illegal, it cannot be cured. This plea as mentioned in Para 7 of order about the specific charge has not been considered by the Hon'ble ITAT. In view of the above, a prayer is being made to recall the order.” 3. Per contra, learned DR opposed the submissions and submitted that by filing the present misc. applications the assessees are trying to seek review of the Tribunal’s order which is not within the purview of Section 254(2) of the Act. He accordingly, submitted that the instant misc. applications preferred by the assessee may be dismissed. 4. We have heard rival submissions and perused the material available on record. On perusal of the Tribunal’s order dated 22.02.2018, we find that the Tribunal in arriving its conclusion has duly taken into consideration all aspects of the matter including the judgment of the Hon’ble Supreme Court rendered in the case of CIT Vs. Reliance Petro Products Pvt. Ltd. 322 ITR 158, referred to by the learned counsel for the assessee. We find no mistake, much less apparent on record so as to recall the Tribunal’s order. We find merit in the contention of the learned DR that by way of present misc. applications the assessees are seeking review of the Tribunal’s order which is not permissible under law and is outside the scope of Section 254(2) of the Act. 5 MA nos. 531 & 532/Del/2018 5. The Hon’ble Supreme Court in CIT Vs. M/s Reliance telecom Ltd. in Civil appeal No. 7110 of 2021 has observed as under: “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. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 6 MA nos. 531 & 532/Del/2018 7. Respectfully following the judgment of Hon’ble Supreme Court in Reliance Telecom Ltd. (supra), the misc. applications moved by the assessees are hereby dismissed. 8. In the result, misc. applications filed by the assessees are dismissed. Order pronounced in open court on 12.07.2022. Sd/- Sd/- (SHAMIM YAHYA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI