Appeal details
Counselvise Citation
[2022] 104 COUNSELVISE.COM (IT) 4856 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
05-04-2022
Appeal Filed By
Assessee
Order Result
DismissedShriVivekGurnani,AdvocateonbehalfofShriZohebHossain,SeniorStandingCounsel
Bench Allotted
F
Assessment Year
misc
Appeal Filed On
20-10-2022
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI ‘FRIDAY’ BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MA No. 96/DEL/2021 [A/o ITA No. 1185/DEL/2020(A.Y 2015-16)] Globus Construction Pvt Ltd Vs. The A.C.I.T H. No. 107, Vill. Hazipur Circle - 1 Sector 104, Opp. Community Centre Ghaziabad Noida. PAN : AAECG 8128 L MA No. 97/DEL/2021 [A/o ITA No. 6614/DEL/2020(A.Y 2009-10)] Shri Praveen Bidhuri Vs. The Income-tax Officer 304, Tukhlakabad Ward -2(4) New Delhi Noida PAN: AIRTP 9741 P MA No. 98/DEL/2021 [A/o ITA No. 1228/DEL/2020(A.Y 2010-11)] Shri Om Prakash Sharma Vs. The Income-tax Officer 65, Habibpur PO Kulsera Ward -2(3) Gutam Budh Nagar Noida PAN: ATYPP 8017 D 2 MA No. 99/DEL/2021 [A/o ITA No. 1187/DEL/2020 (A.Y 2010-11)] Shri Sandeep Kumar Aggarwal Vs. The Income-tax Officer B – 221, Sector 105 Ward - 3(3) Noida Noida PAN: AGNPA 1430 H MA No. 100/DEL/2021 [A/o ITA No. 1179/DEL/2020 (A.Y 2010-11)] Shri Jaiveer Singh Vs. The Income-tax Officer H. No. 16, Amritpuram Ward - 1(5) Gama – I, Greater Noida Noida Gautam Budh Nagar PAN: BESPS 4506 L MA No. 101/DEL/2021 [A/o ITA No. 6823/DEL/2019 (A.Y 2015-16)] & MA No. 148/DEL/2021 [A/o ITA No. 6823/DEL/2019 (A.Y 2015-16)] Ms. Rama Gupta Vs. The Income-tax Officer RDC – 131, Raj Nagar Ward - 2(2) Ghaziabad Ghaziabad PAN: ACHPG 6302 Q MA No. 102/DEL/2021 [A/o ITA No. 6945/DEL/2019 (A.Y 2009-10)] Shri Dharam Singh Vs. The Income-tax Officer H. No. 132, By Pass Road Ward - 1(2) Jatav Mohalla, Village Dhundahera Ghaziabad Ghaziabad PAN: EKEPS 6792 D 3 MA No. 103/DEL/2021 [A/o ITA No. 6837/DEL/2019 (A.Y 2015-16)] & MA No. 147/DEL/2021 [A/o ITA No. 6837/DEL/2019 (A.Y 2015-16)] Shri Vikas Mittal Vs. The Income-tax Officer 25, Mohalla, Mahajanam Ward - 2(5) Sarna Vali Gali, Muradnagar Ghaziabad Ghaziabad PAN: AKKPM 6751 A MA No. 104/DEL/2021 [A/o ITA No. 1146/DEL/2020 (A.Y 2010-11)] ShriJahangir Alam Vs. The Income-tax Officer C/o R.K. Gupta Ward - 1(5) Gali No. 1, Niranjanpuri Ghaziabad Ramghat Road, Aligarh PAN: AMXPA 94 67 A (Applicant) (Respondent) Assessee By : Shri S.K. Gupta, Adv Shri S.K. Srivastava, IRS [Retd] Ms. Shubhi Srivastava, Adv Ms. A. Singh, Adv Shri K.P. Garg, CA Department By : Shri Zoheb Hossain, Sr. Standing Counsel Date of Hearing : 25.03.2022 Date of Pronouncement : 06.04.2022 4 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER: The applicant has made out the captioned Miscellaneous Applications as under: “BEFORE THE HON'BLE ITAT, DELHI BENCHES ‘F’ BENCH, DELHI AT NEW DELHI Miscellaneous Application No.96-102/DEL of 2021 IN ITA No.ll85/Del/2020, A.Y.:2015-16 [Alongwith 8 others M.A. Nos.97 to 104/DEL/2021 in ITAs Nos. 6614, 1215 1187 & 1179/DEL/2020 & ITAs Nos.6823, 6945, 6837 & 1146/DEL/2019] IN THE MATTER OF : ACIT, CIRCLE 1, GHAZAIABAD Appellant Vs. GLOBUS CONSTRUCTION PVT. LTD., NOIDA Respondent AND IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) ............... Applicant Vs. ACIT, CIRCLE 1, GHAZIABAD ................... Appellant 5 IN THE MATTER OF : ITO WARD 2(4), NOIDA ..................... APPELLANT Vs. PRAVEEN BIDHURI ......................... RESPONDENT AND IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) ............... Applicant Vs. ITO WARD 2(4), NOIDA ............................. Appellant IN THE MATTER OF : ITO WARD 2(3), NOIDA ..................... APPELLANT Vs. OM PRAKASH SHARMA .................. RESPONDENT AND IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) ............... Applicant Vs. ITO WARD 2(3), NOIDA ............................. Appellant IN THE MATTER OF . ITO WARD 3(3), NOIDA ..................... APPELLANT Vs. SANDEEP KUMAR AGRAWAL RESPONDENT IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) ............... Applicant Vs. ITO WARD 3(3), NOIDA ............................. Appellant 6 THE MATTER OF : ITO WARD 1(5), NOIDA ...................... APPELLANT Vs. JAIVEER SINGH, G.B. NAGAR RESPONDENT AND IN _ -THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) ............... Applicant Vs. ITO WARD 1(5), NOIDA ............................. Appellant IN THE MATTER OF : ITO no WARD 1(5), NOIDA . APPELLANT Vs. JAHANGIR ALAM .............. RESPONDENT AND IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) Applicant Vs. ITO WARD 1(5), NOIDA ...... Appellant IN THE MATTER OF : ITO WARD 1(2), GHAZIABAD APPELLANT Vs. DHARAM SINGH ................ RESPONDENT AND IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) Applicant Vs. ITO WARD 1(2), GHAZIABAD Appellant IN THE MATTER OF : ITO WARD 2(2), GHAZIABAD APPELLANT Vs. RAMA GUFTA ....................... RESPONDENT AND IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) Applicant Vs. ITO WARD 2(2), GHAZIABAD Appellant IN THE MATTER OF: ITO WARD 2(5), GHAZIABAD APPELLANT Vs. VIKAS MITTAL RESPONDENT 7 AND IN THE MATTER OF : S.K. SRIVASTAVA, IRS (RETD.) Applicant Vs. ITO WARD 2(5), GHAZIABAD Appellant 2. The captioned Miscellaneous Applications by the applicant have been directed towards the captioned order of this Tribunal dated 08.01.2021. 3. The applicant contends that the Revenue has obtained the orders by fraud, deceit, mischief and forgery of record of Government in breach of principles of natural justice without jurisdiction available to the Income tax Appellate Tribunal and prays for adjudication of the matter after impleading the applicant in dispute raised by the applicant/respondents before this Tribunal in terms of provisions of Order 1 Rule 10 of the Code of Civil Procedure, 1908 [CPC] and after hearing the applicant on merits. 4. The applicant has raised the following grounds: “29. That the applicant herein seeks the recall of the impugned Orders dated 08.01.2021 that was pronounced in open Court on 16 th December, 2020 by this Hon'ble Tribunal on following grounds among many others- 8 A. BECAUSE, the impugned Orders dated 08.01.2021 could not have been passed by this Tribunal after pronouncement of Orders in open Court on 16 th December, 2020 as recorded by this Hon'ble Tribunal in its Orders on page 13 below para 13 having become functus officio. B. BECAUSE, this Hon'ble Tribunal has jurisdiction to admit, adjudicate & allow present application & applicant relies on law laid down by the Hon'ble Apex Court in Grindlays Bank Ltd. Vs. Central Govt. Industrial Tribunal & Others. 1981 AIR 606 whereby this Hon'ble Tribunal has jurisdiction to review its Orders inflicted with error/s of procedure, & as Orders dated 08.01.2021 is inflicted with errors of procedure & have seriously prejudiced the applicant without hearing applicant & behind the back of applicant based upon frauds played by appellants. C. BECAUSE, Order on page 4 records date of Order as "08.01.2021" and that is corroborated by “Daily Cause List" for Friday, 8th of January, 2021 of this Hon'ble Tribunal [as available on its website] and wherein all 10 subject cases [8 appeals & two cross objections were listed for pronouncement of order by F bench of this Hon'ble Tribunal at Delhi D. BECAUSE, impugned Orders dated 08.01.2021 is liable to be recalled as an Order passed on 08.01.2021 could not have been pronounced in open Court on 16.12.2020 even before the Order was passed by this Hon’ble Tribunal while conversely, an Order already pronounced in the open Court on 16.12.2020 could not have been passed again on 08.12.2021 by this Hon’ble Tribunal having become functus officio & Orders dated 08.12.2021 already pronounced in open Court on 16 th December, 2020 is ab-initio ex- 9 facie bad in law having no legal status in the eyes of law, liable to be recalled by this Hon’ble Tribunal. E. BECAUSE, judicial Order, decree or judgment, etc., obtained by fraud is nullity, & any Court or Tribunal can take cognizance of the same in any proceeding including even in collateral proceedings, & impugned Orders dated 08.01.2021 that stood pronounced in open Court on 16 th December, 2020 having been obtained by playing fraud upon this Hon’ble Tribunal is liable to be recalled by this Tribunal being "non est ab-initio" as Appellants/Respondents have lied before this Hon’ble Court that applicant while working as CIT(AJ-I, NOIDA & CIT (A)-ll, NOIDA did not have jurisdiction over subject cases that was played upon this Hon’ble Tribunal by forgery & falsification of record. F. BECAUSE, this Hon’ble Tribunal has inalienable inherent jurisdiction to review its Order if there is or has been an error or errors of procedure in passing any order by the Tribunal as has been laid down by Hon’ble Apex Court in the case of "Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal & Others, 1981 AIR 606 & material paras of the judgment of the Hon’ble Apex Court is extracted under- 'The question whether a party must be heard before it is proceeded against is one of procedure & not of power in the sense in which the words are used in s. 11. The answer to the question is, therefore, to be found in sub-s. (1) of s. 11 & not in sub- s. (3) of s. 11. Furthermore, different considerations arise on review. Expression review' is used in two distinct senses, 10 namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, & (2) a review on merits when the error sought to be corrected is one of law & is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, inadvertent error committed by Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, & such power inheres in every court or Tribunal." G. BECAUSE, this Hon'ble Tribunal has been conferred jurisdiction by & under the Income Tax Act, 1961 alone besides enabling procedural authority under the CPC, 1908 & has not been conferred substantive jurisdiction under the Cr.P.C., 1973 & therefore, the jurisdiction of this Hon'ble Tribunal could not have been invoked for adjudication of issues which could have been adjudicated by Court under jurisdiction conferred by the Cr.P.C., 1973 alone & no issue that was not covered by Income Tax Act, 1961 could be raised before this Hon'ble Tribunal. H. BECAUSE, judicial Order obtained without there being the enabling jurisdiction to adjudicate the lis is nullity ab-initio & bad in law & the Orders dated 08.01.2021 having adjudicated issues that fell strictly under the domain of IPC, 1860 & not under the Income Tax Act, 1961 is without jurisdiction & therefore, is bad in law liable to be recalled. 11 I. BECAUSE, section 21 of the CPC, 1908 applies to adjudication under Income Tax Act, 1961 & challenge to availability of jurisdiction has to be raised at the earliest & not as afterthought, & substantial failure of justice is to be proved by anyone claiming to be prejudiced by alleged want of jurisdiction but Appellants/Respondents concealed facts from this Hon'ble Tribunal & got orders dated 08.01.2021 [pronounced in open Court on 16.12.2020] by their fraud upon this Hon'ble Tribunal. J. BECAUSE, Court prejudices none, & no order could be sought from the Court behind the back of a person sought to be prejudiced, nor be issued by the Court behind the back of a person prejudiced, & this inherent & inalienable proposition of procedural law applies to this Hon'ble Tribunal as well rendering the impug.ied order liable to be recalled as applicant has been seriously & incurably prejudiced by the impugned Orders dated 08.01.2021 as Order has returned findings of fact against applicant falling in the domain of the IPC, 1860 & under the jurisdiction of the Court of Ld. Special Judge, Anti-corruption, CBI, Ghaziabad but behind the back of the applicant, without hearing the applicant, without taking any evidence material in the controversy, & based solely upon the fraud played by the Appellants/Respondents & their ulterior agenda & malafide motives which is contrary to the law. K. BECAUSE, Ld. Counsel [Sri Ravi Prakash, Advocate] who canvassed titles as "S.K. Srivastava arguing that applicant has made certain remarks against Sri Rajeev Chandola, Dy.S.P., CBI & Sri R.N. Mishra, S.P., CBI in his C.M.P.(Crl.) before that 12 Hon'ble Court & Hon'ble Delhi High Court was pleased to ask him either to withdraw C.M.P.(Crl.) or implead the persons against whom applicant made allegations & applicant withdrew C.M.Ps.(CrL) & Appellants/Respondents could not prejudice him behind his back. L. BECAUSE, Appellants have misrepresented before this Hon'ble Court, & played grave fraud, mischief & forgeries counterfeiting their own records & documents & the admitted records & documents of CBI & records of Court of Ld. Special Judge, Anti- corruption, CBI, Ghaziabad. M. BECAUSE, Appellants/Respondents lied & misrepresented before this Hon'ble Court falsifying their records, & concealing material records & documents & fact that as on 14.02.2020 CBI filed Chargesheet in CBI RC 1202019A004 dated 04.07.2019 in which want of jurisdiction was alleged only in the cases of following appeals & not the other appeals. N. That the allegation that applicant while working as CIT(A)-I, NOIDA & CIT(A)-II, NOIDA did not have jurisdiction over appeals of M/s Globus Construction Pvt. Ltd., Sri Pravin Bidhuri, Sri Om Prakash Gupta, Sri Sandip Kumar Agrawal, Sri Jai Veer Singh, Sri Jahangir Alam & Sri Dharam Singh is not alleged by CBI in Chargesheet dated 14.02.2020 & Supplementary Chargesheet dated 28.01.2021 & this material fact has been deceitfully concealed by Appellants/Respondents from this Hon'ble Tribunal & also the fact that necessary contesting party 13 being officers of Revenue never & at no point of time raised the issue of lack of jurisdiction even when they stood already served with appropriate notices by offices of CIT(A)-I, NOIDA & CIT(A)-II, NOIDA & raised those issues before this Hon'ble Tribunal as afterthought, & in furtherance of a conspiracy hatched by bribe-taking officers of Deptt. of Revenue & the CBI to cover up "Rs. 5,000 Crores NDTV-Chidambaram Scam". O. BECAUSE, to fabricate false & mischievous case against applicant that while working as CIT(A)-I, NOIDA & CIT(A)-II, NOIDA he did not have jurisdiction over 13 cases Appellants/Respondents have fraudulently placed before this Hon'ble Court only Orders dated 15.11.2014 & to mislead this Hon'ble Tribunal & play fraud upon it concealed their own records being letters dated 16.08.2019, dated 21.08.2019, dated 14.11.2019, dated 16.11.2019, dated 27.12.2019, dated 30.12.2019 being official correspondence between the Ministry of Finance, Govt, of India & CBI over alleged want of jurisdiction & filed by CBI before the Court of Ld. Special Judge, Anti-corruption, CBI from where applicant got Certified True Copies which conclusively & categorically declared, & informed CBI that he as CIT(A)-I, NOIDA & CIT (A)-ll, NOIDA had jurisdiction over not only those 13 cases but also cases of Ghaziabad, Bulandshahar & Hapur during 13.04.2016 to 14.06.2019 [para E, page 3 of Office Letter dated 30.12.2019 to CBI] 14 CIT (Al) Position ID Descripti on of post Linked to jurisdictional Assessing Officer 51200029 CIT (Appeals) , Ghaziaba d DCIT/ACIT GEM/GIR, Ghaziabad; Exemption Charge, Ghaziabad; Exemption Ward, Ghaziabad; Circle (Central), Ghaziabad; Ward (TDS), G.B. Nagar; Ward (TDS), Ghaziabad 51200060 CIT (Appeals) -I, G.B. Nagar [N0IDA] Circle 2(f)(1), Ghaziabad; Old IT0 (TDS), Ghaziabad; Old Ward 2(4), Ghaziabad; Old Ward 2(2)(2), Ghaziabad; Old Ward 2(2)(2) at Hapur; Circle 2(3) (1), Bulandshahar; Old TDS Ward, Ghaziabad; Ward 2(1)(1), Ghaziabad; Ward 2(2)(3), Ghaziabad; Ward 2(3)(5) at Hapur; Circle 2(2)(1), Ghaziabad; Old TDS Ward, Hapur; Ward 2(1 )(2), Ghaziabad; Ward 2(2)(4), Ghaziabad; Old IT0 (TDS), Hapur; Old Ward 3, G.B. Nagar; Ward 2(1 )(3), Ghaziabad; Ward 2(1 )(5), Ghaziabad; Old ACIT (Central), Ghaziabad; Old Ward 4 G.B. Magar; Ward 2(1)4 1), Ghaziabad; Ward 2(3)(5), Bulandshahar; Old AC Circle, G.B. Nagar; Old Ward, 1 G.B. Nagar; Ward 2(1 )(5), Ghaziabad; Ward 2(2)(2), Bulandshahar; Old Circle TDS Ward, MOIDA; Old Ward 2, G.B. Nagar; Ward 2(2)(1), Ghaziabad; Ward 2(2)(3), Bulandshahar P. BECAUSE, the Ministry of Finance, Deptt. of Revenue, Govt, of India CBDT, O/o Pr. DGIT (Systems) being competent authority under the provisions of the Income Tax Act, 1961 to assign jurisdiction to CIT (Appeals) has categorically declared & conclusively informed the CBI that applicant while working as CIT(A)-I, NOIDA & CIT(A)-II, NOIDA had the jurisdiction 15 over 13 cases & also had jurisdiction over cases from Ghaziabad, Bulandshahar & Hapur & Appellants/ Respondents have concealed this material fact from this Hon’ble Tribunal to mislead & deceive this Hon’ble Tribunal & obtain Orders fraudulently. Q. BECAUSE, Appellants/Respondents have played fraud on this Hon’ble Tribunal to say that the applicant had backdated his judicial Orders as all such allegations though fraudulently made in CBI FIR has been dropped by prosecution & the CBI dropping section 468 of IPC, 1860 [pressed initially in FIR] & illegal addition of section 467 of IPC, 1860 by CBI to FIR having been rejected by the Court of Ld. Special Judge, Anti-corruption, CBI, Ghaziabad after fraudulent acts of CBI were out by applicant to the Hon’ble Special Judge on its merits, by finality between parties. R. BECAUSE, all 13 appeals disposed NOIDA were strictly as per law as because of non-prescription jurisdictional CIT(A) by Assessing Officers in Demand Notice in terms of section 156 of I.T. Act, 1961 r.w. rule 15 of I.T. Rules, 1962 in para 6 of Form No.7; ITBA permitted appellants to choose CIT(A) & mapped those appeals to CIT(A)-I, NOIDA & CIT(A)-II, NOIDA which being done by CBDT under enabling authority u/s 119(1) of the Income Tax Act, 1961 was lawful assigning of jurisdiction to CIT(A)-I, NOIDA & CIT(A)-II, NOIDA & allegation of “lack of jurisdiction" in those 13 cases is mischievous, fraudulent, fabricated & manufactured for extraneous agenda & which is hit by bar enjoined in section 21 of the CPC, 1908. 16 S. BECAUSE, vested interests in CBDT & Deptt. of Revenue who were paid bribe by scamsters to cannibalize applicant had fabricated false & forged records & documents to falsely allege that applicant did not have jurisdiction to attend to those 13 appeals & CBI despite having been correctly advised by O/o Pr.DGIT(System), CBDT about mapping of those 13 appeals to CIT (A)-l, NOIDA being the applicant in lieu of bribe paid to its officers through the conduit of touts & intermediaries from within the Deptt. of Revenue, Govt, of India has concealed the material facts from the Court but has fabricated & forged the false records to arrest applicant, & then to file Chargesheet against him. T. BECAUSE, Appellants have concealed from this Hon'ble Court that Ld. Counsel instructed by them to canvass their cases [Sri Ravi Prakash, Advocate] was peculiarly interested having sought the indulgence of Hon'ble Delhi High Court to be impleaded as a Respondent under Order I, Rule 10 of the CPC, 1908 in the matter of alleged want of jurisdiction of CIT(A)-I, NOIDA & CIT(A)-II, NOIDA & which is being adjudicated by Hon'ble Delhi High Court [W.P.(Crl.) No. 3493 of 2019 titles as "S.K. Srivastava Vs. CVC & Anr."] & therefore, was barred by the provisions of Rule 9 of the Bar Council of India Rules, Chapter II as framed u/s 49( 1 )(c) of the Advocates Act, 1961 & he is to be peculiarly affected by the outcome of the adjudication of the appeals before this Hon'ble Tribunal & has thus played fraud upon this Hon'ble Tribunal. 17 U. BECAUSE, Appellants/Respondents have concealed from this Hon'ble Court that conduct of applicant as CIT(A)-I, NOIDA & CIT(A)-II, NOIDA was protected by "The Central Board of Direct Taxes (Validation of Proceedings] Act 1971" having overriding effect upon the rights of parties to disputes under the Income tax Act, 1961 under provisions of section 2 of that law and would not have allowed the Appellants/Respondents to claim that the judicial Orders passed were non est ab-initio for want of jurisdiction as those Orders even if without jurisdiction, though not to be so were protected by the law. 31. That the applicant declares that he has not filed any other similar application before any other judicial authority including the Supreme Court of India & prays for following relief from this Hon'ble Tribunal- P R A Y E R This Hon'ble Court may graciously be pleased:- (i) . To allow the instant M.A. as filed in the instant adjudication. (ii) To recall the impugned Orders dated 08.01.2021 passed by the F Bench of Delhi Benches of this Hon'ble Tribunal & thereafter, to adjudicate the case after hearing the applicant on all issues. (iii) To implead applicant as a new/additional plaintiff/defendant/ Respondent in ITA No.1185/Del/2020, A.Y..2015-16 & let him enter appearance & cross-examine witnesses & to lead evidence over false & mischievous claims of the Appellants/Respondents. 18 (iv) To pass such other & further order as this Hon'ble Court may deem fit & proper in the facts & circumstances of case. AND FOR THIS ACT OF ITS KINDNESS, THE PETITIONER SHALL, AS DUTY BOUND, FOREVER PRAY TO THE LDMTAT Sd/ NEW DELHI DATED : 01.04.2021. APPLICANT Through (S.K. Gupta) Advocate VERIFICATION I, S.K. Srivastava, IRS (Retd.) aged about 57 years, S/o Late B.S. Bhaskar, R/o 1282, Pocket 1, Sector C, Vasant Kunj, New Delhi- 110003, the above named applicant, do hereby verify that contents of Paras 1 to 31 of the above Miscellaneous Application is true & correct to the best of my knowledge & belief & nothing material has been concealed by me therefrom. Verified at Delhi on this day of the 1 st of April, 2021 APPLICANT” 5. The applicant Shri S.K. Srivastava, IRS [Retd.], Advocate Shri S.K. Gupta, Authorized Representative, Ms. Shubhi Srivastava, Adv, Ms. A. Singh, Adv Shri Akhilesh, Adv and the Senior Standing Counsel Shri Zoheb Hossain representing the department were heard at length on various dates as per the order sheet entries. 19 6. We have carefully perused the contents of the application of Shri S.K. Srivastava. We have also gone through the order of this Tribunal dated 08.01.2021, which order is the subject of present application. The relevant findings of this Tribunal, which is under consideration, read as under: “5. Undisputedly Sri S.K. Srivastava Ld. CIT(A)-1 Noida was having jurisdiction over appeals filed under Income Tax Act pertaining to Noida-1 and Noida-2; it is also not in dispute that CIT(A)-1, Noida was having no jurisdiction over the appeals pertaining to Ghaziabad Jurisdiction. 6. It is also not in dispute that Sri S.K. Srivastava got compulsorily retired with effect from 11.06.2019. It is also not in dispute that on the complaint filed by Ms. Anuja Sarangi, Directorate General of Income Tax (DGIT-Vigilance) FIR bearing no. RC 1202019A0004 dated 04.07.2019 was registered by Central Bureau of Investigation (CBI), Anti Corruption Branch (ACB), Ghaziabad against Sh. S.K.Srivastava then CIT(A)- 1 and 2 Noida u/s 120–B, 420, 468 IPC and Section-7 of the Prevention of Corruption Act, 1988 (as amended in 2018) for having indulged in Acts of Omission and Commission adversarial to the interest of revenue. It is also one of the allegation in the FIR that Sri S.K. Srivastava claimed to have passed 104 orders as CIT(A)-1 and CIT(A)-2, Noida during December, 2018 but prima facie passed in the Month of June, 2019. In the 20 backdrop of the aforesaid facts and circumstances of the captioned cases the sole question arises for determination in this cases is : “as to whether impugned orders passed by Ld. CIT(A)-1 and 2 Noida are illegal, bad in law and non-est having been passed without jurisdiction in violation of CBDT notification and after his compulsory retirement (with effect from 11.06.2019?). 7. So far as appeals bearing ITA No. 1185/Del/2020, A.Y. 2015-16, CO No. 49/Del/2020, A.Y. 2010-11, 6623/Del/2019, A.Y. 2015-16, ITA No. 6945/Del/20, A.Y. 2009-10, CO No. 152/Del/2019, A.Y. 2009-10 are concerned they are pertaining to Ghaziabad jurisdiction and only CIT(A)- Kanpur is having the jurisdiction to try and entertain the same as per CBDT notification no. 66/2014 dated 13/11/2014 read with order no. C.C IT/CCA, Kanpur-III. It is beyond comprehension as to how and under what circumstances CIT(A)-1 Noida has dealt with and disposed of these appeals pertaining to Ghaziabad which are apparently beyond his jurisdiction. 8. From the copy of notification dated 13 th November, 2014 issued by Central Board of Direct Taxes (CBDT) copy of order dated 15.11.2014 passed by the Chief Commissioner of Income Tax, Kanpur specifying the jurisdiction of CIT(A)s, copy of FIR No. RC 1202019A0004 dated 04.07.2019 and report on the basis of vigilance inspection qua the work and conduct of Sh.S.K. 21 Srivastava CIT(A)-1 Noida conducted by D.G.I.T(Vigilance), New Delhi, it is proved on record that Sri S.K.Srivastava CIT(A)-1, Noida who was compulsorily retired w.e.f 11.06.2019 and vigilance team of Income Tax conducted vigilance inspection qua his work and conduct found following illegalities and irregularities committed by him :- “a. Sh.Sanjay Kumar Srivastava, IRS (Retd.) (87052) while posted as / CIT(A)-, Noida with additional charge of CIT(A)-2, Noida, prior to his compulsory retirement w.e.f 11.6,2019 indulged in acts of omission and commission adversarial to the interest of revenue. b. Orders reported to have been passed by Sh.Srivastava in the month of December, 2018, were prima-facie passed in the month of June, 2019. c. All these orders liable 10 have been uploaded on ITBA system were uploaded between 11 lh June to i3 lh June, 2019, after his demitting the office. d. There are also indications of falsification of records to allude towards dispatch of these orders on 7 th June, 2019, whereas they were dispatched on 14 th June, 2019. e. Sh.Sanjay Kumar Srivastava passed 13 orders which were outside his jurisdiction. 22 f. It was claimed that 104 orders were passed by Sh.Sanjay Kumar Srivastava during December, 2018, however many of them were uploaded to the central server using his RSA token only after his retirement. g. It is apprehended that either the orders were not passed by Sh.Sanjay Kumar Srivastava during December, 2018, or if the orders were indeed passed during . December, 2018, then the possibility of undue financial gains by delaying the issue of orders cannot be ruled out, h. It is apprehended that role of private players like contractual engages/outsourced staff in the above activities was very evident and requires in depth investigation.” 9. From the aforesaid illegalities and irregularities brought on record by the Vigilance Inspection Team of Income Tax Department qua the work and conduct of CIT(A)-Noida it has come on record CIT(A)-I, Noida has decided Income Tax Appeals referred to in preceding para no. 7 pertaining to Ghaziabad Jurisdiction over which he has no jurisdiction purportedly on 31.12.2018 whereas it is proved on record that all these appeals were disposed of in the month of June, 2019 after his compulsory retirement. It is also proved on record that all the impugned orders have been uploaded on ITBA system between 11 th June to 13 th June, 2019 after his demitting the office by Sri S.K.Srivastava, CIT(A)-1 and2 Noida. It is also proved that he has uploaded the impugned orders to the Central Server using his RSA token only after his retirement. All these 23 facts to go to prove that the impugned orders have been passed by Sri S.K.Srivastava, CIT(A)-1 and 2 Noida after his compulsory retirement with effect from 11.06.2019, because the moment he ceases to hold his office he has become functus officio.” 7. Basis the aforementioned findings, the impugned orders passed in the captioned appeals by the ld. CIT(A)-1 and ld. CIT(A) –II, Noida were set aside to the file of the respective jurisdictional ld. CIT(A)-1 and ld. CIT(A)-II, Noida and the ld. CIT(A), Ghaziabad to be decided afresh in accordance with law by providing an opportunity of being heard to the Assessee /Revenue. 8. It would be pertinent to mention here that the facts considered by this Tribunal in its order [supra] have not been dismissed by any court of competent jurisdiction and, therefore, still hold good. 9. After giving thoughtful consideration to the application, we find that the same has been filed by the applicant seeking to invoke the following provisions: 24 i) Section 151 of the CPC, 1908 ii) Order 1 Rule 10 of CPC, 1908 iii) Section 253(1) of the I.T. Act, 1961 iv) Section 255(5) of the I.T. Act, 1961 v) Rule 30 and 31 of the Income Tax Appellate Tribunal Rules, 1963. 10. We are of the considered view that none of the aforementioned provisions that the applicant is seeking to invoke prescribe any procedure or power wherein a non-party can seek a review of an order passed by this Hon'ble Tribunal. 11. Section 254(2) of the Act read as under: 2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed] with a view to rectifying any mistake apparent from the record 97 , amend any order passed by it under sub-section (1), and shall make such amendment 97 if the mistake is brought to its notice by the assessee or the 98 [Assessing] Officer : Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub- 25 section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard : 99 [ Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]” 12. We are of the considered view that the quasi-judicial/judicial authority, which passed the order, which is then a subject matter of appeal before the appellate forum, is neither a necessary nor a proper party in such appellate proceedings. Therefore, in our considered opinion, the applicant has absolutely no locus standi to maintain the present Miscellaneous Application, since it purports to have acted in a quasi-judicial capacity in passing the said order. 13. On a perusal of the impugned order of this Tribunal, we find that the Revenue approached this Tribunal on a limited point that while exercising such quasi-judicial powers as a CIT(A), the concerned ld. CIT(A) did not have jurisdiction. This Tribunal, vide order-sheet entry dated 26.11.2021 directed the respondent as under: 26 “On the last date of hearing, we have heard Shri S.K. Gupta, Advocate - counsel for the applicant, Shri S.K. Srivastava. Before proceeding further to hear the arguments of the Respondents, we are of the considered view that certain factual clarifications need to be brought on record by the Respondent/Central Board of Direct Taxes (CBDT) to decide the issue qua jurisdiction of CIT (A) concerned. So, we direct the Respondent to file an affidavit by the CBDT with supporting orders/circulars/clarifications qua the following queries:- (i) to bring on record orders, instructions & directions issued by the Board to other Income-tax Authorities conferring power on CIT(A), Noida - 1 & 2, applicable to the date of entertaining and deciding the appeals by CIT (A), Noida-1 & 2 which are subject matter of the aforesaid misc. applications u/s 119 of the Income- tax Act, 1961 with supporting orders/circulars/ clarifications; (ii) to bring on record the facts qua the date, month and year of passing appellate orders by Id. CIT (A) in the appeals which are subject matter of the misc. applications under consideration along with supporting documents; (iii) to bring on record rules/orders/circulars passed by the CBDT to upload the orders passed by the CIT(A)s in general and qua appeals, which are subject matter of MAs under consideration in particular; 27 (iv) to bring on record the facts as to the date of uploading and posting of the appellate orders to the assessee on its website by way of affidavits of the concerned officials/officer who have uploaded/posted the orders passed in the appeals which are subject matter of misc. applications under consideration. Aforesaid queries be furnished in tabulated form by way of affidavit by the CBDT by 10.12.2021 and copy thereof be supplied to the opposite parties well in advance .” 14. In compliance to the afore-stated query, following affidavit was filed by the authorized person of the Central Board of Direct Taxes : “I, Ramesh Chander S/o Late Sh. Ishwar Singh aged about 56 years, presently posted as Commissioner of Income Tax (Judicial), New Delhi having office at New Delhi, have read and understood the contents of the petition and having gone through the records of the case do hereby solemnly affirm and state as under: 1. That, I am authorized on behalf of the Central Board of Direct Taxes in the aforesaid case, and as such I am well conversant with the facts and circumstances of the case. 2. That the present affidavit is being filed in compliance with the order dated 26.11.2021 passed by this Hon'ble Tribunal wherein the answering respondent was directed to file an affidavit qua the following queries: 28 To bring on record orders, instructions & directions issued by the Board to other Income-tax Authorities conferring power on CIT(A), Noida- l &2, applicable to the date of entertaining and deciding the appeals by CIT(A), Noida-1 & 2 which are subject matter of the aforesaid misc. applications u/s 119 of the Income-tax Act, 1961 with supporting orders/ circulars/clarifications; (ii) To bring on record the facts qua the date, month and year passing appellate orders by Id. CIT(A) in the appeals which are subject matter of the misc. applications under consideration along with supporting documents; (iii) To bring on record rules/orders/circulars passed by the CBDT to upload the orders passed by the ClT(A)s in general and qua appeals, which are subject matter of Mas under consideration in particular; (iv) To bring on record the facts as to the date of uploading and posting of the appellate orders to the assessee on its website by way of affidavits of the concerned officials/officer who have uploaded/posted the orders passed in the appeals which are subject matter of misc. applications under consideration. A True Copy of the order dated 26.11.2021 passed by this Hon’ble Tribunal in the present case is annexed herewith and marked as Annexure A-l. Re: Query No. (i) - 29 3. That with respect to the abovementioned query no. (i), it is submitted that vide Notification No. 66/2014 dated 13.11.2014, the Central Board of Direct Taxes (“CBDT”) authorised the Principal Chief Commissioners of Income Tax (“Pr. CCIT”) specified in the column (2) of the Schedule therein, to issue orders in writing for exercise of the powers and performance of the functions by all or any of the income-tax authorities specified in the corresponding entries in column (4) of the ed therein, in respect of such territorial areas or of such persons etc. as may d in such order. It can be seen that at SI. No. 17 of the said notification. Pr. CCIT, U.P. (West) and Uttarakhand has been assigned jurisdiction over CIT(A) Ghaziabad and CIT(A), Noida-l&2. A True Copy of the Notification No. 66/2014 dated 13.11.2014 is annexed herewith and marked as Annexure A-2. 4. That further, Pr. CCIT U.P. (West) and Uttarakhand, vide Order dated 15.11.2014bearing No. G-03/2014-15, directed that the Commissioner of Income Tax (CIT) specified in column (2) of the Schedule therein, shall exercise the powers and perform the functions in respect of any appeal filed by or cases or class of cases of persons specified in column (3) and falling within the jurisdiction of the Income Tax authorities specified in column (4) therein. It can be seen at SI. No.(8) of the said order that CIT(A), Noida-1 was assigned the charge over all cases falling within the jurisdiction of Pr. CIT/CIT, Noida and all cases pertaining to TDS and Exemption falling within the territorial 30 jurisdiction of Pr. CIT/CIT, Noida. Further at SI. No.(9) of the said order CIT(A), Noida-2 was assigned all cases of Range 3(2), Noida and Range 3(3), Dehradun falling under the jurisdiction of CIT (International Taxation)-3, Delhi. 5. .That further, it can also be seen from SI. No. (7) of the said order that the CIT(A), Ghaziabad was assigned the charge over all cases falling within the territorial jurisdiction of Pr. CIT/CIT. Ghaziabad. A True Copy of the Order dated 15.11.2014bearing No. G- 03/2014-15 is annexed herewith and marked as Annexure A-3. 6. That the Pr. CCITU.P. (West) and Uttarakhand issued order dated 15.11.2014 bearing No. G-04/2014-15. Allocating the Ranges/ Circles/Wards and offices of Tax ery Officers as mentioned in Column 2 of the schedule given therein. Pr. CIT, ad appears at SI. No. 5 of this order and Pr. CIT, Noida at SI. No. 8. A True Copy of the order dated 15.11.2014 bearing No. G- 04/2014-15 is annexed herewith and marked as Annexure A-4. 7. That further the Addl./Joint CIT. Ghaziabad, Range-1 and Range-2 respectively issued orders dated 01.06.2015 assigning jurisdictions to various assessing officers on territories as mention in column no. 3 therein. It is clear from a perusal of the 31 said orders that the area of Ghaziabad, Hapur, and Bulandshahr was assigned to PCIT. Ghaziabad and CIT(A), Ghaziabad. True Copies of orders dated 01.06.2015 bearing nos. 1/2015-16 are attached herewith and marked as Annexure A-5 (colly). That further, the Pr. CCIT U.P. (West) and Uttarakhand issued anOrder dated 03.08.2017bearing No. 06/KNP/2017- 18transferring appeals from CIT (A), Ghaziabad to inter-alia CIT(A) -1, Noida and CIT (A) -II Noida. However, it can be seen from the said order that the cases which are subject matter of the present M.A.s do not find mention in the said order and were not transferred to CIT(A), Noida-I or II. A True Copy of the order dated 03.08.2017 bearing No. 06/KNP/2017-18 is annexed herewith and marked as Annexure A-6. Re: Query' No. (ii) – That as per the vigilance Inspection Report of DGIT(Vig.) and CVO. CBDT the date, month and year of passing of the appellate order by the CIT(A) in the appeals which are subject matter of the Misc. Applications under consideration was 31.12.2018. A Table depicting the date, month and year of passing of appellate orders in cases which are subject matter of present MAs is attached herewith and marked as 32 Re: uery No. (iii) 10. That with respect to query no. (iii) raised by this Hon’ble Tribunal, it is submitted that the CBDT issued an Instruction dated 23.12.2003 wherein it was stated that, "The Board desires that appellate orders by Commissioner of Income Tax (Appeals) should be issued within 15 days of the last hearing. Any lapse on this account shall be viewed adversely. ” A True Copy of the CBDT Instruction dated 23.12.2003 is annexed herewith and marked as Annexure A-8. 11. That the CBDT issued a further Instruction dated 19.06.2015 wherein it was requested that strict compliance be ensured of the earlier instruction dated 23.12.2003. A True Copy of the CBDT Instruction dated 19.06.2015 is annexed herewith and marked as Annexure A-9. 12. That the CBDT issued an Instruction dated 07.12.2018 regarding clarification on time-limit for issue of appellate order by CIT(A) after introduction of ITBA wherein it was stated that, “in view of introduction of ITBA functionality for uploading of orders by CIT(A) subsequent to last letter of Board on the issue. I am directed to that issuance of order as per Instructions 20 of 2003 includes uploading the 1 in CIT(A) 33 module of ITBA. within 15 days of the last hearing. " True Copy of the order CBDT Instruction dated 07.12.2018 is annexed herewith and marked as Annexure A-10. Re: Query No. (iv) 13. That with respect to query no. (iv), it was noticed from the Vigilance Inspection Report of the DGIT (Vig.) and CVO CBDT in respect of Vigilance Inspection conducted on 19.06.2019 that an enquiry showed that one Sh. Neeraj, Sr. T.A. had uploaded 91 orders out of the 104 orders shown as disposed of in the month of December 2018 and the said orders were given to him only on 10.06.2019. Hence, as directed by this Hon’ble Tribunal, a True Copy of the affidavit of Mr. Neeraj Kumar, Sr.T.A. in the office of CIT(A)-1. Noida i.e. the officer who had uploaded the orders passed in the appeals which are subject matter of the Misc. Applications under consideration, bringing on record the facts as to the date of uploading and posting of the said orders is attached herewith and marked as Annexure A-ll . A True Copy of the Vigilance Inspection Report in respect of Vigilance Inspection conduction on 19.06.2019 is annexed herewith and marked as Annexure A-12. 14. That based upon the above submissions, the answering Respondent humbly submits that there is no merit in the case of the applicant and the instant application is liable to be dismissed. 34 DEPONENT VERIFICATION Verified at Delhi on the day of 09. Dec. 2021 that the averments and submissions made above are true to the best of my knowledge, which is based on the records of the case which are under my charge and nothing material has been concealed there from.” 15. Averments made in the afore-mentioned affidavit have not been controverted by the applicant. In the afore-stated affidavit, it has been specifically clarified that the applicant did not have any jurisdiction over the captioned appeals. 16. The applicant has referred to various judicial decisions in support of his contention. But none of the decisions have been rendered in light of the provisions of section 254(2) of the Act and every judgment has to be read in the context in which it has been delivered. 17. We further find that further rebutting to the averments made by the applicant in his application, the Revenue filed the following affidavits: 35 AFFIDAVIT DATED 25.11.2021 I, Gulshan Dhall, W/o Jatindcr Singh Oberoi. aged about 57 years, currently working as Income Tax Officer, Ward-2(2)(l), Ghaziabad, have read and understood the contents of the petition and having gone through the records of the case do hereby solemnly affirm and state as under: 1. That I am authorized on behalf of the Revenue in the aforesaid case and as such I am well conversant with the facts and circumstances of the case. I say that the answering Respondent has read and understood the contents mentioned in the said M.A. and in reply thereto at the very threshold denies each and every allegation made in the M.A. except those which arc specifically admitted hereinafter. 2 That, the Respondent herein is filing the present short affidavit limited to the issue of whether the applicant was vested with jurisdiction over the cases of Ghaziabad during the period of 13.04.2016 to 14.06.2019 and reserves its right to file a detailed reply at a later date with the permission of this Hon’ble Tribunal, if required, for the proper adjudication of the present matter. 3. That the applicant has falsely stated in his application that while working as CIT(A)- 1, N01DA & CIT(A)-II, NOIDA was vested with jurisdiction over cases of Ghaziabad, Bulandshahar & Hapur during the period of 13.04.2016 to 14.06.2019. 36 4. That in this regard it is submitted that firstly, an order dated 15.11.2014 was issued by the office of the Principal Chief Commissioner of Income Tax, U.P. (West) & Uttarakhand Region, Kanpur, wherein it was specifically stated that the Commissioner of Income Tax (Appeals), Ghaziabad shall exercise the powers and perform the functions in respect of cases falling within the jurisdiction of (i) Principal Commissioner/Commissioner of Income Tax, Ghaziabad, (ii) Commissioner of Income Tax (TDS), Kanpur and (iii) Commissioner of Income Tax (Exemption), Lucknow, It was further stated in this order that the Commissioner of Income Tax), Noida-1 shall exercise the powers and perform the functions in respect of falling within the jurisdiction of (i) Principal of Commissioner I Commissioner Tax, Noida, (ii) Commissioner of Income Tax (TDS), Kanpur and of Income Tax (Exemption), Lucknow and that the Commissioner of Tax (Appeals), Noida-2 shall exercise the powers and perform the functions respect of cases falling within the jurisdiction of Commissioner of Income Tax (International Taxation)-3, Delhi. A True Copy of the order dated 15.11.2014 issued by the office of the Principal Chief Commissioner of Income Tax, U.P. (West) & Uttarakhand Region. Kanpur is annexed herewith and marked as Annexure A-1 5. That it is hence clear from a reading of the abovementioned order dated 15,11.2014 that the applicant i.e. erstwhile CIT(A)- Noida I and II was not vested with jurisdiction over cases pertaining to Ghaziabad, Bulandshahar or Hapur and the said averment of the applicant is incorrect. 37 6. That further, it can also be seen from the order dated 15.11.2014 u/s 120 of the Income Tax Act, 1961 issued by the office of the Commissioner of Income Tax, CGO Complex-I, Hapur, Chungi, Ghaziabad that, the Commissioner of Income Tax, Ghaziabad held jurisdiction over cases pertaining to the territorial area of Ghaziabad, Bulandshahar and Hapur and hence the averment of the applicant that the jurisdiction over these territories were vested on him while working as CIT(A), Noida-I and II during the period of 13.04.2016 to 14.06.2019 is false. A True Copy of the order dated 15.11.2014 u/s 120 of the Income Tax Act, 1961 issued by the office of the Commissioner of Income Tax, CGO Complex-I, Hapur, Chungi, Ghaziabad is attached herewith and marked as Annexure A-2. 7. That it is submitted that from 25.05.2014 to 05.08.2016 one Sh. Ranjeet Singh (91009) Nxras posted as CIT (A) Ghaziabad and was transferred to Rajkot vide Order No. v-) 3 5/2016 dated 20.07.2016. A copy of the posting profile of Sh. Ranjeet Singh from wwwirsofficcrsonline.gov.in) is attached herewith and marked as Annexure A-3. 8. That further one Smt. Renuka Jain Gupta (92013) was posted as CIT (A)Ghaziabad from 05.08.2016 to 13.01.2020 and was transferred to Delhi vide Order No. 259/2019 dated 16.12.2019. A copy of the posting profile of Smt. Renuka Jain Gupta from www.irsofficersonline.gov.in is attached herewith and marked as Annexure A-4. 38 9. That from the official records, it is seen that the charge of CIT (A) Ghaziabad was given on additional charge basis to the applicant Sh. S.K. Srivastava for 22 days from to 25.06.2018 (Prefix - 2 & 3.6.2018) and for 5 days from 07.01.2019 to 11.01.2019 (Prefix - 5 & 6.01.2019 and suffix - 12 & 13.01.2019) when Smt. Renuka Jain Gupta was on earned leave. True and Translated copies of the order dated 01.06.2018 and 03.01.2019 are annexed herewith and marked as Annexure A-5. 10. That further on 03.08.2017, vide Order No. 06/KNP/2017- 18, 60 & 138 cases of C1T (A) Ghaziabad were assigned to CIT(A)-[ & CIT(A)-II, Noida respectively. However it can be seen from a perusal of the said order that the cases which are subject matter of the present appeals do not find mention in the cases which were assigned to CIT (A)-I and CIT (A)-II, Noida. A True Copy of the Order No. 06/KNP/2017-18 dated 03.08.2017 issued by the Principal Chief Commissioner of Income Tax, U.P. (West) & Uttarakhand Region, Kanpur, is annexed herewith and marked as Annexurc A-6 11. That in light of the above, it is clear that the averment of the applicant that while working as CIT(A)-1, NOIDA & CiT(A)- II, NOIDA was vested with jurisdiction over cases of Ghaziabad, Bulandshahar & Hapur during the period of 13.04.2016 to .14.06.2019 is absolutely incorrect and contrary to the record. It is submitted that at no point did the applicant 39 while working as CIT(A), Noida-I & II held charge over the cases which are subject matter of the present appeals and hence there is no reason to interfere-with the order dated 08.01.2021 passed by this Hon’ble Tribunal. That based upon the above submissions, die answering Respondent humbly submits ’that there is no merit in the case of the applicant and the instant application is liable to be dismissed.” VERIFICATION Verified at New Delhi on the day of November 2021 that submissions made above are true to the best of my knowledge, which is based on the records of the case which are under my charge and nothing material has been concealed there from. DEPONENT AFFIDAVIT DATED 09.12.2021 I/Ramesh Chander S/o Late Sh. Ishwar Singh, aged about 57 years, currently working as Commissioner of Income Tax (Judicial), New Delhi, have read and understood the contents of the petition and having gone through the records of the case do hereby solemnly affirm and state as under: 40 “13. That with respect to query no. (iv), it was noticed from the Vigilance Inspection report of the DGIT (Vig.) and CVO CBDT in respect of Vigilance Inspection conducted on 19.06.2019 that an enquiry showed that one Sh. Neeraj, Sr. T.A. had uploaded 91 orders out of the 104 orders shown as disposed of in the month of December 2018...” That the fact that the then CIT(A) had shown the date of disposal as December 2018 when in fact the orders were prima facie passed later is evident from a bare perusal of Vigilance Inspection Report at Annexure A-12 at Page 59 of the earlier Affidavit dated 09.12.2021, the relevant extracts of the Vigilance Inspection Report already on record in the earlier Affidavit dated 09.12.202lare as follows: “1.0 A Vigilance team consisting of Sh. Amitabh Shukla CIT(OSD)(V)&ADG(V)-3, Sh. Rajat Kapoor Addl. DIT(V) West-1, Sh. BP Gopalke ADIT(V) SE-3, Sh. Sujit Kumar ITO (V) SE-1 & 2, Sh. Bhupinder Kumar ITO (V) SE 3, Sh. Sandip Inspector of Income Tax and Sh. Arvind Inspector of Income Tax conducted inspection on 19.06.2019, in respect of the work carried out by Shri Sanjay Kumar Srivastva, IRS Retd. (87052) while being posted as CIT(A) 1 Noida with addl. Charge of CIT(A) 2 Noida prior to his compulsory retirement under FR 56 (j) w.e.f. 11/06/2019. 2.0 While being posted as CIT(A) 1 Noida, Shri Srivastava exercised jurisdiction over all appeals matters co-terminus to 41 the charge of PCIT Noida. In his additional charge of CIT(A) 2 Noida, he was having and data collected from DG systems reveals the following: 5.0 The inspection of the office of the ld. CIT(A) Noida and ld. CIT(A) -2 Noida and data collected from DG systems reveals the following ii) The appellate orders were passed by Shri Srivastava with delay. Shri Shrivastava orally gave figures of monthly disposal to its staff members without providing them the copy of such order or dispatch. The orders were given later (with delay) by Shri Shrivastava for making entry in Appeal Disposal Register, and issuance of the same to assessee/department. iii) The difference of 60 was noted in the number of disposals provided in the Monthly Disposal reports and Appeal Disposal Registers from April 2018 to January 2019. iv) A total number of 116 orders were shown to have been passed in the month of December 2018 as per MDR. It was revealed that only 104 orders were allegedly passed by Shri Shrivastava. v) It is evident from the dispatch register that aforesaid 104 orders were shown to be dispatched to assesses and/or departmental authorities on 07.6.2019. However, most of the aforesaid orders were handed over for actual dispatch to speed post authorities on 14.06.2019. (As per Annexure vi) it was also revealed that 91 orders out of the aforesaid 104 orders were uploaded on ITBA between 11.06.2019 to 13.06.2019 post compulsory retirement of Shri Shrivastava. (As 42 per Annexure X) vii) It was informed by DG systems that RSA Token of Shri Shrivastava was last logged in on 2:27 PM 13.06.2019. viii) The cases shown to have been disposed off in December 2018 were handed over by Shri Shrivastava to their staff in the month of May/June2019. ix) It was revealed that none of the abovementioned 104 orders allesedlv shown to have been passed in the month of December 2018 by Shri x) In an enquiry conducted on 26.06.2019, it was informed by Sh. Neeraj Sr. TA that he uploaded aforesaid 104 orders shown as disposed in the month of December, 2018 on ITBA from 11.06.2019 to 13.06.2019. He informed that he could not upload all the orders as the RSA token of Sh. Srivastava stop functioning on 13.06.2019. He informed that he got the RSA token of Sh. Srivastava stop functioning on 13.06.2019. He informed that he got the RSA token of Sh. Srivastava from the earlier Sr. TA posted in the office namely Sh. Sanjeev. He also informed that the said RSA token is still lying in the office in possession. It was conveyed that the aforesaid 104 order shown as disposed off in the month of December 2018 were given to him by Sh. T.N. Kapoor ITI on 10.06.2019. He also informed orally that one Sh. Akash a contractual engage was handed over appellate orders of a particular month, by Sh. Srivastava who used to give it to rest of the staff for works of dispatch, entry in Appeal Disposal Register, uploading etc. The work of 43 dispatch/hand delivery of orders including for the month of June 2019 was done by Sh. Akash only. xi) Orders were passed in 8 Appeals by Shri Shrivastava in the month of May 2019. The copies of the said 8 appellate orders were provided to the assessee. However, the entry of the same is not carried out in Appeal Disposal Register. Further, Monthly disposal report for the month of May 2019 was not prepared and sent to higher authorities as mandated. The copy of the said orders was also not sent to concerned AO’s. xii) Shri Shrivastava passed orders in 13 cases which were beyond his jurisdiction while working as CIT(A)-1, Noida and having additional charge as CIT(A)-2, Noida. xiii) It was found that Shri Shrivastava dismissed Appeal No. 255/2017- 18/Noida vide order dated 30.03.2018 while the said order bears the dated 30.03.2018 in the absence of power to do so, upon an application filed by the Assessee after imposing of Central Government vide order dated 31.12.2018. The Department is of the view that – i) That Sh. Sanjay Kumar Srivastava IRS (retd.) (87052) while posted as CIT(A) 1 Noida with addl. Charge of CIT(A) 2 Noida therein prior to his compulsory retirement w.e.f. 11/06/2019, has indulged in certain acts of omission and commission adversarial to the interests of revenue. 44 ii) It is alsoindicated that the orders reported to have been passed by Sh. Srivastava in the month of December 2018 were prima facie passed in the month of June 2019. iii) All theseorders liable to have been uploaded on ITBA system were uploadedbetween 11 th June to 13 th June 2019 after his demittins the office. iv) There are also indications of falsification of records to allude towards dispatch of these orders on 7 th June 2019 whereas they were dispatched on 14 th June 2019. vii) It appears that it was claimed that 104 orders were passed by Sh. SK Srivastava during December 2018. However, many of them were uploaded to the central server using his RSA token only after his retirement. ” 6. That moreover, after investigation by CBI, a chargesheet has also been filed by CBI dated 14.02.2020, in the Court of Ld. Special Judge, Anti-Corruption, CBI, Ghaziabad, against the applicant under Section 420, 120-B of the Indian Penal Code, 1860 and Section 7 of the Prevention of Corruption Act, 1988 (as amended in 2018). A supplementary chargesheet dated 28.01.2021 has also been filed by the CBI after further investigation in the Court of Ld. Special Judge, Anti-Corruption, CBI, Ghaziabad. The matter is subject matter of trial before the Ld. CBI Court and for the sake of completeness, the chargesheets of CBI is also being placed on record. 45 7. That a petition for quashing u/s 482 Cr.P.C. was also moved by the applicant before the Hon'ble Allahabad High Court, and the High Court having found prima facie evidence in support of the charges against the applicant, was pleased to dismiss the said petition. A Copy of the order dated 04.11.2020 passed by the Hon’ble Allahabad High Court in Application u/s 482 No. 13226 of 2020 is also being placed for the completeness of record and marked as Annexure 3. 8. That based upon the above submissions, the answering Respondent humbly submits that there is no merit in the case of the applicant and the instant application is liable to be dismissed. 18. Considering the contents of the application, in light of the affidavits filed by the Revenue [supra], we are of the considered view that the applicant does not have any locus standi in the present application made by him. In light of the specific averments made in the affidavits, the MA filed in the case of Shri Vikas Mittal and Ms. Rama Devi also do not have any merit. 19. It would be pertinent to refer to the decision of the Hon'ble Supreme Court in the case of Reliance Communications Limited in Civil Appeal Nos. 7110 & 7111 of 2021. Relevant findings of the Hon'ble Apex Court read as under: 46 “3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT 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 ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. 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 only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. 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. XXXX XXXX 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 47 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. 6. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored.” 20. In light of the aforementioned discussion, the captioned Miscellaneous Applications are dismissed. [SAKTIJIT DEY] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 06 th April 2022. VL/ 48 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr.PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr.PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order
