Toni Gupta, Meerut V. ITO, Ward- 2(4), Meerut

MA 703/DEL/2018

AI Insights

The case revolves around a miscellaneous application (MA No. 703/Del/2018) filed by Shri Toni Gupta, the assessee, seeking to recall the Tribunal's earlier order (ITA No. 50/Del/2018) dated 29.10.2018 for the assessment year 2009-10. The assessee contended that the Tribunal had not considered his arguments and evidence during the earlier proceedings, leading to a decision made without the assessment record. The Departmental Representative opposed the recall, asserting that no mistake was apparent on record. The Tribunal, referencing the Supreme Court's decision in CIT Vs. Reliance Telecom Limited, emphasized that its powers under section 254(2) are confined to correcting apparent mistakes and do not allow for a re-examination of the case on merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129943 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 26 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: 15-11-2018
• 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.703/Del/2018 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC” NEW DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MA No. 703/Del/2018 (In I.T.A No.50/Del/2018) /Assessment Year: 2009-10 Shri Toni Gupta 187, Kishan Pura, Baghpat Road, Meerut, Uttar Pradesh. ब म Vs. Income Tax Officer, Ward 2(4), Meerut. PAN No. AIGPG9447G 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 seeks to recall the order of the Tribunal in ITA No.50/Del/2018 dated 29.10.2018 for the AY 2009-10 stating that the Tribunal has not considered the arguments and decided the case without assessment record. 2. Ld. Counsel submits that the Tribunal had passed the order without considering the arguments and the various evidences furnished by the assessee in the course of hearing and, therefore, MA.No.703/Del/2018 2 there is a mistake apparent on record and requested for recalling the order. 3. Ld. DR opposed for recalling the order stating that there is no mistake apparent on record. 4. On perusal of the miscellaneous application, it is noticed that the assessee wanted the Tribunal to recall its order and passed a fresh order on merits which amount to reviewing the earlier order. On reading of the order of the Tribunal it is observed that the Tribunal decided the issue on merits on appreciation of facts on record 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: “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 MA.No.703/Del/2018 3 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 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 MA.No.703/Del/2018 4 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 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 MA.No.703/Del/2018 5 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