Ninaidevi Shikshan Prasarak Mandal, Sangli V. Income-tax Officer, (Exemption), Ward, Kolhapur

MA 88/PUN/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3483 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-07-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 20-09-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 133(6); 254(2); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER MA No.88/PUN/2021 Arising out of ITA No.1787/PUN/2019 Assessment Year : 2016-17 Ninaidevi Shikshan Prasarak Mandal, At/Post – Kokrud, Taluka – Shirala, Dist. – Sangli – 415405 PAN : AAATN8537D Applicant बनाम / V/s. ITO, Exemption Ward, Kolhapur ......प्रत्यथी / Respondent Applicant by : Shri Girish Dave Revenue by : Shri M.G. Jasnani सुनवाई की तारीख / Date of Hearing : 15-07-2022 घोषणा की तारीख / Date of Pronouncement : 20-07-2022 आदेश / ORDER PER INTURI RAMA RAO, AM: The present Miscellaneous Application is filed by the applicant society stating that certain errors had crept in the order passed by this Tribunal in ITA No.1787/PUN/2019 for assessment year 2016-17 on 24.06.2021 warranting recall of the order. 2. It is pointed out that the following typographical errors had occurred in para 3 at page 3 of impugned order: 2 MA No.88/PUN/2021 Arising out of ITA No.1787/PUN/2019 a) The Tribunal observed that the Assessing Officer brought to tax a sum of Rs.2,17,75,000/- as anonymous donation as against correct figure of Rs.2,17,30,000/-. b) In para 8 of page 5 of the order the Tribunal noted that during the year under consideration the appellant trust had received donations aggregating to Rs.2,17,30,000/- from total of 4851 persons an identical amount of Rs.4501/- was received from each person. It is stated that this finding recorded by the Tribunal is incorrect inasmuch as total donations received of Rs.2,17,75,000/-. c) The observations made by the Tribunal that the AO had attempted to verify the genuineness of donations received by issuing notice u/s 133(6) to 26 persons on random basis is incorrect as against the fact that the AO made enquiries only with 20 persons. d) Finally, it is stated that the Tribunal had completely ignored the remand report of the AO through whom enquiry was caused to be made by the Tribunal in terms of rule 28 of the Income Tax (Appellate Tribunal), Rules, 1963. It is further stated that as a result of the above alleged mistakes / errors / omissions prejudice is caused to the applicant society and therefore, it is bounden duty of the Tribunal to amend the order passed by this Tribunal by recalling in its entirety based on the principle that no 3 MA No.88/PUN/2021 Arising out of ITA No.1787/PUN/2019 prejudice can be caused on account of acts, mistakes committed by any Court. Reliance was also placed on the decision of Hon’ble Apex Court in the case of CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC). During the course of hearing of Miscellaneous Application, learned counsel for the appellant society while reiterating the averments made in the Miscellaneous Application, submits that it is incumbent upon the Tribunal to rectify the mistakes committed by the CIT(A), as the order of CIT(A) is impugned before the Tribunal and the remand report submitted by the AO cannot be ignored totally and he also submitted that the doctrine of ex debito justitiae is squarely applicable to the facts of the case. Thus, it is pleaded the matter be recalled in entirety in order to render full justice in the matter. 3. On the other hand, learned Sr.DR vehemently opposed the submissions made on behalf of applicant society and submits that the Miscellaneous Application moved by the appellant society is in the nature of review petition and the Tribunal after recording the submissions and facts of the case, rendered a finding on merits and thus, it is pleaded that there are no mistakes which are capable of being rectified in exercise of power vested with the Tribunal under the provisions of section 254(2). 4. We have heard the rival contentions and perused the material on record. The issue in the present Miscellaneous Application is having regard 4 MA No.88/PUN/2021 Arising out of ITA No.1787/PUN/2019 to averments made in the present petition is - can the Tribunal recall its own order passed in ITA No.1787/PUN/2019 on 24.06.2021?. We have carefully noted the submissions made on behalf of the applicant society. We are of the considered opinion that the clerical / typographical mistakes mentioned in sub paras a, b and c of para 6 of the petition are in the nature of clerical / typographical errors which may be corrected by way of corrigendum. Accordingly, the corrigendum to this effect is passed as under: (i) “The figure of amount appearing in para 3 at page 3 of Tribunal’s order may be read as Rs.2,17,30,000/- instead of Rs.2,17,75,000/- as “anonymous donations. (ii) The figure of amount appearing in para 8 at page 5 of Tribunal’s order may be read as Rs.2,17,75,000/- instead of Rs.2,17,30,000/-. (iii) The number of persons on whom enquiries made by the Assessing Officer may be read as 20 persons instead of 26 persons as mentioned in Tribunal’s order.” 5. We are also of the considered opinion that on account of these clerical / typographical errors, the final outcome of the order would not change and therefore, on account of these clerical / typographical errors, no prejudice is caused to the petitioner society, as it would not lead in enhancement of assessed income. Such typographical errors are not fatal enough for recalling the order in entirety. 5 MA No.88/PUN/2021 Arising out of ITA No.1787/PUN/2019 6. As regards to the averments made in sub-para d of para 6 of the present Miscellaneous Application that the Tribunal totally ignored the remand report, constituting the mistake apparent from the record, on perusal of para 12 of the impugned order, it would be clear that the Tribunal had noted the dichotomy in the findings of the Assessing Officer in remand report and therefore, consciously had chosen not to give any credence to the remand report. This would clearly show that the Tribunal had not totally ignored the remand report but considered and took view that no credence can be given to the remand report, in view of the inconsistencies in the remand report. Thus, the submission that the Tribunal had totally ignored the remand port is completely erroneous and wrong. In the light of all the above findings, it cannot be said that prejudice had been caused to the applicant on account of mistakes committed by this Tribunal in the order dated 24.06.2021. Therefore, the doctrine of ex debito justitiae relied upon by the learned Counsel for the applicant has no application to the facts of the present case. The error that had crept (if any) in the order of CIT(Appeals) does not give rise to mistakes apparent from record capable of being rectified in exercise of power vested with us under provisions of section 254(2) of the Act. We are of the considered opinion that the applicant had failed to point out the mistakes apparent from the record in the order passed by this Tribunal, which are capable of being rectified in the exercise of power vested with us u/s 254(2) of the Act and therefore, the Miscellaneous Application is devoid 6 MA No.88/PUN/2021 Arising out of ITA No.1787/PUN/2019 of any merits. Accordingly, the Miscellaneous Application stands dismissed. 7. In the result, Miscellaneous Application of applicant is dismissed. Order pronounced in the open court on 20 th July, 2022. Sd/- Sd/- S.S.VISWANETHRA RAVI INTURI RAMA RAO JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ददनाांक / Dated : 20 th July, 2022. GCVSR आदेश की प्रतततितप अग्रेतषत / Copy of the Order forwarded to : 1. The Applicant. 2. The Respondent. 3. The CIT(A)-2, Kolhapur 4. The Pr.CIT-2, Kolhapur 5. DR, ITAT, “A” Bench, Pune. 6. गार्ड फ़ाइि / Guard File. //True Copy// आदेशानुसार / BY ORDER, वरिष्ठ निजी सनिव / Sr. Private Secretary आयकि अपीलीय अनिकिण ,पुणे / ITAT, Pune