Shailendra , Meerut V. ITO, Ward- 2(3), Meerut

MA 609/DEL/2018

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The case involves a miscellaneous application by the assessee, Shri Shailendra, seeking to recall an earlier order of the Income Tax Appellate Tribunal (ITAT) which had decided an appeal for the assessment year 2009-10. The assessee contended that the Tribunal had not considered a paper book and evidence due to procedural non-compliance, and argued that the issue should be remanded to the CIT(Appeals). The Tribunal, referencing the Supreme Court's decision in CIT Vs. Reliance Telecom Limited, held that its powers under section 254(2) of the Income Tax Act are confined to correcting mistakes apparent from the record and do not allow for a re-hearing of the appeal on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129942 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 11 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 24-08-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 24-09-2018
• Other Referred Cases: CIT Vs. Reliance Telecom Limited 440 ITR 1 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 254(2)

Judgement Text

MA.No.609/Del/2018 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC” NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MA No. 609/Del/2018 (In I.T.A No.180/Del/2018) /Assessment Year: 2009-10 Shri Shailendra C/o Vinod Kumar Goel, 282, Boundary Road, Civil Lines, Meerut, Uttar Pradesh. ब म Vs. ITO, Ward 2(3) Meerut. PAN No. CAVPS9753D Appellant /Respondent Assessee by Shri Vinod Kumar Goel, Advocate Revenue by Ms. Smita Singh, Sr. DR स ु नवाईक तारीख/ Date of hearing: 25.08.2023 उ ोषणाक तारीख/Pronouncement on 12.09.2023 आदेश /O R D E R Through this miscellaneous application the assessee requests to recall the order of the Tribunal in ITA No.180/Del/2018 dated 19.06.2018 for the AY 2009-10. In the miscellaneous application the assessee contends that the paper book intended to file was denied by the Hon’ble Bench as it was not filed as per rules. It was the contention of the assessee that the assessee was under the impression that the Tribunal would set aside the issue to the file of the CIT(Appeals) the arguments were made by the Ld. Counsel. It is MA.No.609/Del/2018 2 the contention of the assessee that there is a mistake and error committed by the Counsel for the assessee to proceed with the arguments and the assessee should not be punished for the mistakes committed by the Ld. Counsel, therefore, it is prayed that the order be recalled for fresh hearing. 2. The Ld. Counsel for the assessee before us submits that the Tribunal failed to consider the paper book and the evidences and deciding the appeal and, therefore, there is a mistake apparent on record in the order passed by the Tribunal which may be recalled. 3. Ld. DR opposed for recalling the order of the Tribunal and submitted that there is no mistake apparent on record in the order of the Tribunal. 4. Heard rival contentions. On perusal of the order of the Tribunal and the record, we noticed that there is no any material which was placed on record before the Tribunal and the Tribunal on appreciation of facts on record decided the appeal on merits and there is no mistake apparent on record. 5. In the case of CIT Vs. Reliance Telecom Limited 440 ITR 1 (SC) held as under: MA.No.609/Del/2018 3 “3.2 Having gone through both the orders passed by the Income-tax Appellate Tribunal, we are of the opinion that the order passed by the Income-tax Appellate Tribunal dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under section 254(2) of the Act. While allowing the application under section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the Income-tax Appellate Tribunal has re- heard the entire appeal on merits as if the Income Tax Appellate Tribunal was deciding the appeal against the order passed by the Commissioner of Income Tax. In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under section 254(2) of the Act are akin to Order XLVII, Rule 1 of the Code of Civil Procedure. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the Income Tax Appellate Tribunal when it passed an order on 06.09.2013, by which the Income tax Appellate Tribunal 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 Income Tax Appellate Tribunal was erroneous, either on the 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 Income Tax Appellate Tribunal dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the Income Tax Appellate Tribunal recalling its earlier order dated 06.09.2013 which has been passed in exercise of MA.No.609/Del/2018 4 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 Income Tax Appellate Tribunal 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 Income Tax Appellate Tribunal had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before Income Tax Appellate Tribunal. 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 Income Tax Appellate Tribunal and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the Income Tax Appellate Tribunal 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 Income Tax Appellate Tribunal 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 Income Tax Appellate Tribunal was erroneous on merits, in that MA.No.609/Del/2018 5 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.” As could be seen from the above, the Hon’ble Supreme Court has categorically held that even if the order passed by the Tribunal was erroneous on merits in that case the remedy available to the assessee was to prefer an appeal before the High Court. Thus, the miscellaneous application filed by the assessee is rejected as there is no mistake apparent on record. 6. In the result, the miscellaneous application is dismissed. Order pronounced in the open court on 12/09/2023 Sd/- (C.N. PRASAD) JUDICIAL MEMBER Dated: 12.09.2023 *Kavita Arora, Sr. P.S. Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order Assistant Registrar, ITAT: Delhi Benches-Delhi