INCOME TAX OFFICER-4 (3), JALANDHAR V. SHRI HARNIDHAN SINGH , JLANDHAR

MA 7/ASR/2021

AI Insights

The case involves a batch of Miscellaneous Applications filed by the revenue against the orders of the ITAT, Amritsar Bench, for the assessment years 2010-11, 2014-15, and 2008-09. The applications were filed beyond the six-month period allowed for such actions, but the delay was condoned due to a Supreme Court order. The revenue contended that the ITAT had not considered certain High Court decisions relevant to the cases. However, the ITAT upheld its original decisions, citing a Supreme Court precedent that limited its powers under section 254(2) to correcting mistakes apparent from the record, not revisiting the merits of the case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115185 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-04-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 08-03-2021
• Other Referred Cases: CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER ANDSH. ANIKESH BANERJEE, JUDICIAL MEMBER M.A. No. 5/Asr/2021 (In I.T.A.No. 227/Asr/2019) A.Y. 2010-11 ITO- Ward -1, Hoshiarpur. (Appellant) Vs. Sh. Karamjit Singh Roy Moranwali, Hoshiarpur. [PAN: DFUPR2358N] (Respendent) M.A. No. 7/Asr/2021 (In I.T.A.No. 486/Asr/2018) A.Y. 2014-15 ITO- Ward -4(3), Jalandhar. (Appellant) Vs. Sh. Harnidhan Singh, 90, Guru Gobind Singh Nagar, Jalandhar. [PAN: BHLPS0293Q] (Respendent) M.A. No. 12/Asr/2017 (In I.T.A.No. 313/Asr/2014) A.Y. 2008-09 Dy. Commissioner of Income Circle-1, Bathinda. (Appellant) Vs. L.R.G. Foods Pvt. Ltd. Phul Road, Rampuraphul [PAN: AABCL1490R] (Respendent) Appellant by Sh. Ashray Sarna, CA & Sh. P.N. Arora, Adv. Respondent by Sh. Ravinder Mittal, Sr. DR M.A. No.5/Asr/2021 & 7/Asr/2021 & 12/Asr/2017 2 Date of Hearing 24 & 27.04.2023 Date of Pronouncement 18.05.2023 ORDER Per Anikesh Banerjee, JM: A batch of Miscellaneous Application (in brevity the MA) was filed by the revenue against the order of ITAT, Amritsar Bench related to assessment years 2010-11, 2014-15 and 2008-09 chronologically MA No. 5/ASR/2021, 7/ASR/2021 and 12/ASR/2017 are emanated from the order of ITA 227/ASR/2019 date of pronouncement 16.01.2020, ITA 486/ASR/2018 date of pronouncement 13.02.2019 and ITA 313/ASR/2014 respectively. After consent of both the parties MA 5/Asr/2021 is taken as lead case. 2. The brief fact of the case is that the MA was filed against the order of ITAT Amritsar Bench from the end of the Revenue. All the MAs are filed beyond six months from the end of the month the order is pronounced by bench which contravening the section 254(2) of the Act. But the delay was covered by the order of Hon’ble Supreme Court in Suomoto Writ petition no. 3 of 2020 dated 10.10.2020. Accordingly, the delay for filing MA is condoned. M.A. No.5/Asr/2021 & 7/Asr/2021 & 12/Asr/2017 3 The revenue agitated that during the appeal the order of the different High Courts was not covered, and the entire issue is related to discussion of legal litigation. Being agitated the revenue filed MA before us. 3. The ld. DR vehemently argued and placed that the Bench has not considered and discussed the covered issues during the hearing. So, the MA should be allowed and prayed for recalling. 4. The ld. AR vehemently argued and invited our attention in ITA NO. 486/ASR/2018 for assessment year 2014-15, relevant paragraph 3.1 is extracted below: “We have given our thoughtful consideration to the findings of the ld. CIT(A) wherein he has analyzed all the peculiar facts and circumstances of the case and rightly held that the penalty has been imposed merely on the basis of surrendered income during the investigation proceedings and it is a fact that the assessee corrected his return by filing a revised return of income. It is also a fact that no adverse material was available before the AO to fasten the liability against the assessee qua furnishing of particulars of income of concealing the income. Consequently, on the aforesaid reasons the deletion of penalty by the ld. CIT(A) is M.A. No.5/Asr/2021 & 7/Asr/2021 & 12/Asr/2017 4 sustainable and hence the order under challenge does not require any interference by this Bench. 4.1 The ld. AR placed that the Bench has passed a speaking order after hearing both the parties. The ld. AR fully relied on the order of Hon’ble Supreme Court in the case of CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC). The observation is extracted as below: - “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 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 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2013 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 conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 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 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 M.A. No.5/Asr/2021 & 7/Asr/2021 & 12/Asr/2017 5 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.” The recalling the observation of a speaking order of ITAT is beyond the jurisdiction of Bench. So, the MA application of the revenue is dismissed. Accordingly, the Miscellaneous Application 5/Asr/2021 of the revenue is dismissed. The MA 5/Asr/2021 is mutatis mutandis applicable to two other Miscellaneous Applications also. 5. In the result, the Miscellaneous Applications of the revenue bearing M.A. No. 05/Asr/2021, 07/Asr/2021 and 12/Asr/2017 are dismissed. Order pronounced in the open court on 18.05.2023 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE ) Accountant Member Judicial Member Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order