ITO, Ward- 1(5), Faridabad V. Manish Kumar & Sons HUF, Faridabad

MA 690/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2900 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 14-07-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 13-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Bogus
• Section: 254(2)

Judgement Text

MA.No.690/Del/2019 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC” NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MA No. 690/Del/2019 (In I.T.A No.1563/Del/2018) /Assessment Year: 2015-16 ITO Ward 1(5), Faridabad. ब म Vs. Manish Kumar & Sons HUF, A-48, OMAXE RPS GREEN VALLEY, Sector-41-42, Faridabad, Haryana. PAN No. AAIHM9664A Appellant /Respondent राज वक ओरसे /Revenue by Shri Abhishek Kumar, Sr. DR िनधा रतीक ओरसे /Assessee by Shri Kapil Goel, Adv. स ु नवाईक तारीख/ Date of hearing: 15.07.2022 उ ोषणाक तारीख/Pronouncement on 07.09.2022 आदेश /O R D E R This miscellaneous application is filed by the Revenue contending that there appears to be apparent mistake in the order passed by the Tribunal as the order is based on wrong inferences drawn from the decision relied on by the Tribunal in the case of Al Faheem Meatex Pvt. Ltd. Vs. ACIT in ITA Nos. 6122 & 6123/Del/2015 dated 09.06.2017. MA.No.690/Del/2019 2 2. In the miscellaneous application the Revenue contends as under: - (iv) “It is pertinent to mention here that during the whole proceedings of the assessment, the assessee never objected about the validity of the notice u/s 143(2). (v) Even during the appellant proceedings before Ld.CIT(A), the assessee never craved for the legal angle of issuance of notice u/s 143(2). (vi) Hon’ble ITAT has totally disregarded the findings by Ld.CIT(A) who confirmed the action of AO. The case laws mentioned by the Ld.CIT(A) have not even been discussed in order. (vii) Hon’ble ITAT has relied upon the case laws which are contrary to the facts and circumstances of the case and has been separately discussed above. (viii) Hon’ble ITAT has not appreciated the facts that there can be hardly any documentary clinching evidence to pierce the veil of such under hand transactions. Such type of transactions can be dismantled on the basis of circumstancial facts surrounding evidences. (ix) In the recent judgment by Hon’ble ITAT, SMC Bench, New Delhi in the case of Sh. Anup Rastogi and Smt. Anju Rastogi, ITA No. 3809 and 3810/Del/2018 for the assessment year 2015-16 dated 08.01.2019 has decided the issue of bogus LTCG on Sale of shares in favour of Revenue by giving credence to the statement recorded by Investigation wing and the abrupt, unrealistic movement of price and no extraordinary increase in the profits of the company to justify the increase in value of the shares. This latest decision of Jurisdictional ITAT Delhi is MA.No.690/Del/2019 3 squarely applicable in the present case on both the facts and circumstances of the case.” 3. On perusal of the miscellaneous application it is noticed that the Revenue wants the Tribunal to recall its order to appraise the entire facts and review the order by recalling the earlier order dated 22.11.2018 which is not permissible in law. The Tribunal on hearing both the parties and appreciating the facts on record held that notice u/s 143(2) of the Act was issued by non-jurisdictional Assessing Officer and, therefore, the assessment order is bad in law. 4. In the case of CIT Vs. Reliance Telecom Ltd. 440 ITR 1, the Hon’ble Supreme Court held as under: “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT 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 ITAT was erroneous, either on 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 ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal MA.No.690/Del/2019 4 conferred u/s 254(2) of the Act. Therefore, the order passed by the ITAT 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........... 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 instance case.” 5. As could be seen from the above, the Hon’ble Supreme Court held that the powers u/s 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. The Hon’ble Supreme Court held that even if the order of the Tribunal was erroneous on merits recalling such order is beyond the scope and ambit of powers MA.No.690/Del/2019 5 of the Tribunal conferred u/s 254(2) of the Act. In view of the above, I hold that there is no mistake apparent on record in passing the order by the Tribunal in ITA No. 1563/Del/2018 dated 22.11.2018. 6. In the result, the miscellaneous application filed by the Revenue is rejected. Order pronounced in the open court on 07/09/2022 Sd/- (C.N. PRASAD) JUDICIAL MEMBER Dated: 07.09.2022 *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