ACIT, New Delhi V. Sunglow Overseas Pvt. Ltd., New Delhi

MA 647/DEL/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2850 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 07-07-2022
• Assessment Year: 2006-2007
• Appeal Filed On: 16-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJAY BHAGNANI
• Keywords: Documents seized
• Section: 40A(3); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MA No. 647/Del/2018 (Assessment Year : 2006-07) ACIT New Delhi PAN No. AABCS 5852 N Vs. Sunglow Overseas Pvt. Ltd. M-11, Middle Cricle, Connaught Circus, New Delhi – 110 001 (APPELLANT) (RESPONDENT) Assessee by Shri Ajay Bhagnani, C.A. Revenue by Shri Shankar Singh, Sr. D.R. Date of hearing: 08.07.2022 Date of Pronouncement: 13.09.2022 ORDER PER ANIL CHATURVEDI, AM: The present Miscellaneous Application (MA) is filed by the Revenue u/s 254(2) of the Act in ITA No.2156/DEL/2015 for A.Y. 2006-07 vide order dated 14.05.2018. 2. The MA of the Revenue reads as under: ...... 2. The decision of the Hon’ble ITAT is not acceptable, as the ITAT did not examine the terms of collaboration agreement and facts of case and did not consider the incrimination documents seized during the search operation. The Hon’ble ITAT has placed its reliance on the decision of the ITAT order ITA No. 1752/Del/2013 dated 22.08.2014 in the case of M/s Westland Developers Pvt. Ltd., for the A.Y. 2006-07 and ITA No. 1674 85 2 1765/Del/2013 dated 31.10.2014 in the case of M/s IAG Promoter 85 Developers (P) Ltd., for the A.Y. 2008-09. 3. Revenue has already filed Miscellaneous Application (MA) in the following cases on the same issues : (a) M/s. IAG Promoters & Developers P. Ltd - A.Y. 2008-09 (b) M/s. Westland Developers Pvt. Ltd. – A.Y. 2006-07 7. In view of the above, it is therefore earnestly requested to accept the Misc. Application on the issue of 1. Addition on account of Interest paid to Vendors on Post Dated Cheques (PDCs), 2. On account of disallowance of Additional Payment, and 3. Addition on account of Disallowance u/s 40A(3) of the Act Revenue in the due interest of justice.” 3. Learned DR reiterated the submissions made in the MA and submitted that the order passed by Hon’ble Tribunal be rectified in view of the submissions made in MA. 4. Learned AR on the other hand strongly objected to the contentions of the Learned DR and submitted that in the present MA Revenue has not pointed any mistake and through this present MA, Revenue is seeking the review of the order which is not permissible u/s 254(2) of the Act. He further submitted that Revenue had in the group companies of the assessee and on identical issue had filed MA in the case of Remarkable Estate Pvt. Ltd. and Countrywide Promoters Pvt. Ltd. In both those cases, the MA of the Revenue has been dismissed by Hon’ble ITAT. He placed on record the copy of the aforesaid MA. He therefore submitted that since the issue raised in the present MA is identical to the issues raised in the aforesaid MAs the present MA of the Revenue needs to be dismissed. 3 5. We have heard the rival submissions and perused the material available on record. In the present MA, the alleged grievance of the Revenue is that the Hon’ble ITAT while deciding the issue in appeal did not examine the collaboration agreement and the incriminating material seized during the search operation and had placed reliance on the decision of ITAT cited therein. We find that in the present MA, Revenue has not pointed out any mistake as contemplated u/s 254(2) of the Act. It is only the contention of the Revenue that the decision of the Tribunal is not acceptable as the Tribunal did not consider the incriminating document seized during the search operation. We find that identical plea was taken by the Revenue in the case of Remarkable Estate Pvt. Ltd. (supra) wherein the Co-ordinate Bench of Tribunal vide order dated 07.10.2021 in MA No.488 & 489/Del/2018 had dismissed the MA of the Revenue. Further it is a settled law that power of rectification u/s 254(2) of the Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from record and not a mistake which requires to be established by arguments and long drawn process of reasoning. Further Tribunal cannot exercise 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 record itself. Hon’ble Bombay High Court in the case of CIT vs. Ramesh Electric and Trading Company (1993) 203 ITR 497 has held that Tribunal has no power to review its 4 own order. Hon’ble Delhi High Court in the case of Ras Bihari Bansal v. Commissioner of Income-Tax and another, [2007] 293 ITR 365 (Delhi) has held that in the grab of an application for rectification it is not permissible to the parties to reopen and reargue the whole matter. Hon’ble Kerala High Court in the case of P.T. Manuel and Sons (2021) 434 ITR 416 has held that the power of rectification is not akin to that of appeal or even a review. It has further held that merely because there is a wrong or erroneous order or a wrong appreciation of facts, the same cannot be grounds for rectification though they could be grounds for appeal. 6. In view of the aforesaid facts and following the decisions cited hereinabove, we are of the view that since the Revenue has failed to point out any mistake apparent as contemplated u/s 254(2) of the Act in the order, we are not inclined to recall the order in ITA No.2156/Del/2015 dated 14.05.2018 and thus the Misc. Application of the Revenue is dismissed. 7. In the result, the MA of the Revenue is dismissed. Order pronounced in the open court on 13.09.2022 Sd/- Sd/- (CHALLA NAGENDRA PRASAD) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 13.09.2022 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI