Inder Singh, New Delhi V. ITO, New Delhi

MA 791/DEL/2018

AI Insights

The case involves a miscellaneous application filed by Inder Singh against the order of the Income Tax Appellate Tribunal dated 23.08.2018, concerning the assessment year 2009-10. The application contended that the Tribunal had not addressed a specific ground related to the non-business income and the maintenance of books of account, and that the written submissions were also overlooked. The Revenue opposed the application, arguing that the Tribunal had indeed considered all submissions and that the application sought a review rather than rectification of an apparent mistake, which is not allowed under the Income Tax Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 116112 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-09-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2018
• Other Referred Cases: Ras Bihari Bansal vs. CIT, P.T. Manuel & Sons vs. CIT, CIT vs Reliance Telecom Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘C’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SH. YOGESH KUMAR US, JUDICIAL MEMBER MA No.791/Del/2018 In ITA No.3727/Del/2016 (Assessment Year 2009-10) Inder Singh, S/O Sh. Ram Singh, 94, Goyala Khurd, Delhi PIN 110071 PAN No. BCRPS3678G Vs. ITO Ward 43(3), New Delhi (APPELLANT) (RESPONDENT) Assessee by Shri P.C Yadav, Advocate Shri Morh Mukut Yadav, Advocate Revenue by Shri Shankar Gupta, Sr. D.R. Date of hearing: 06.01.2023 Date of Pronouncement: 12.01.2023 PER ANIL CHATURVEDI, AM : The present Miscellaneous Application (MA) is filed by the assessee against the order of Tribunal dated 23.08.2018 in respect of appeal in ITA No.3727/DEL/2016 for A.Y. 2009-10. 2. In the Miscellaneous Application assessee has inter alia stated that assessee had raised ground no. 2.2 which stated that that "The Ld CIT-A failed to appreciate the fact that the assessee has income only from "other sources"-bank interest and agricultural- and the assessee has no business and therefore the assessee is neither required under law nor is maintaining books of account and therefore addition us 68 of MA No.791/Del/2018 Inder Singh Page 2 of 5 the Act is bad in law and without prejudice the deposit in bank a/c cannot be added u/s. 68 of the Act.” but Hon’ble ITAT has not decided the aforesaid ground. It is the further contention of the assessee that assessee had made written submissions which were also not considered while passing the order. It is therefore submitted that the order be passed by recalling the entire order and/or suitably modify the subject order. 3. Before us Ld. AR took us through the miscellaneous application and from therein he pointed that ground no. 2.2 which was raised by the assessee but according to Ld. AR the same has not been disposed of and thus it is mistake apparent from record contemplated u/s. 254(2) of the Act. He further submitted that the assessee’s submissions that were filed in the paper book were also not considered and thus it is a mistake apparent from record. To support his contentions of the aforesaid being mistake apparent from record he placed reliance on the various decisions cited in the miscellaneous application. He therefore submitted that the order be recalled or modified. 4. Ld. DR on the other hand submitted that the plea of the assessee that the ground no. 2.2 being not adjudicated is factually incorrect. He submitted that the grievance of the assessee in ground no. 2 and the sub grounds was with respect to the addition of Rs. 1,29,15,000/- made u/s. 68 of the Act, on account of cash deposits in bank which is treated as unexplained by AO. He pointed to the para 7 to 10 of the Tribunal order (from page no 5 to 12) and submitted that the Hon’ble Tribunal after considering the MA No.791/Del/2018 Inder Singh Page 3 of 5 submissions made by the assessee and after placing reliance on the case laws cited therein has decided the issue and the grounds and the sub grounds were disposed off together. He submitted that there is no apparent mistake in the order of Tribunal as contemplated u/s. 254(2) of the Act. He further stated that through this miscellaneous application assessee is seeking a review of the order passed by the Tribunal which is not permissible under the Act. He therefore submitted that there is no merit in the miscellaneous application filed by the assessee and the same deserves to be dismissed. 5. We have heard the rival submissions and perused the material on record. The alleged grievance of the assessee in the miscellaneous application is that ground no. 2.2 raised by the assessee has not been adjudicated and the written submissions filed by the assessee have not been considered while passing the order. We find that the Tribunal had decided the ground no. 2 and its sub grounds by dealing extensively the issue and the submissions of both the sides vide para no 7 to 11 (at page no. 5 to 12) of the orders. In such a situation we find no merit in the alleged grievance of the assessee. 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 in to 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 MA No.791/Del/2018 Inder Singh Page 4 of 5 itself. We find that Hon’ble Delhi High Court in the case of Ras Bihari Bansal vs. CIT (2007) 293 ITR 365 Delhi has held that an oversight of a fact cannot constitute an apparent mistake rectifiable u/s. 254(2) of the Act. It has further held that failure of the Tribunal to consider the argument advanced by either party for arriving at a conclusion, is not an error apparent from record, although it may be an error of judgment. It has further held that in the grab of an application for rectification it is not permissible to the parties to reopen and reargue the whole matter. We further find the Hon’ble Kerala High Court in the case of P.T. Manuel & Sons (2021) 434 ITR 416, has held that the power of rectification is not akin to that an appeal or even a review and that merely because there is wrong or erroneous order or wrong appreciation of facts the same cannot be grounds for rectification though they could be grounds for appeal. The Hon’ble Apex Court in the case of CIT vs Reliance Telecom Ltd. (2021) 133 Taxmann.com 41 (SC) has held that while considering the application u/s. 254(2), the Tribunal is not required to revisit its earlier order and to go into detail on merits. The power u/s. 254(2) are only to rectify/correct any mistake apparent from the record. It has further held that 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. 6. In view of the aforesaid facts and following the decisions cited hereinabove, we are of the view that since the assessee has failed to point out any mistake apparent from record as contemplated u/s. 254(2) of the Act, we are not inclined to recall the order in ITA MA No.791/Del/2018 Inder Singh Page 5 of 5 No.3727/DEL/2016 and thus the miscellaneous application of the assessee dismissed. 4. In the result, the miscellaneous application of the assessee is dismissed. Order pronounced in the open court on 12.01.2023 Sd/- Sd/- (YOGESH KUMAR US) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 12.01.2023 NV* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI