SHIV KUMAR MISHRA,GHAZIABAD V. ITO 3(2), ETAH

MA 3/AGR/2025

AI Insights

The case involves Shiv Kumar Mishra, the applicant, who filed miscellaneous applications seeking rectification of ex parte orders related to income tax assessments for the years 2011-12 and 2012-13. The applications were filed under section 254(2) of the Income-tax Act, 1961, which allows for rectification of mistakes apparent from the record. The Tribunal had previously completed the assessments under section 147 read with section 144 due to non-compliance and lack of explanation regarding substantial cash deposits. Both the first appellate authority and the Tribunal had dismissed the appeals ex parte due to non-submission and non-responsiveness from the applicant. The Tribunal, in its decision, emphasized that the powers under section 254(2) are limited to rectifying obvious and patent mistakes and do not extend to re-evaluating the merits of the case or reviewing previous decisions.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 793354 (ITAT-AGRA)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 08-05-2025
• Other Referred Cases: Commissioner of Income Tax (IT-4) V M/s. Reliance Telecom Limited
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASSESSEE; REVENUE; ANIL KUMAR
• Assessee Lawyers: PRATAP GUPTA
• Keywords: Validity of assessment
• Section: 147; 144; 142(1)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI SUNIL KUMAR SINGH, JUDICIAL MEMBER MA Nos. 03 & 04/Agr/2025 (arising out of ITA Nos.27 & 73/Agr/2024 Assessment Years: 2011-12 & 2012-13 Shiv Kumar Mishra, CG-57, Aaditya Mall, Indirapuram, UP- 201012. Vs. Income-tax Officer, Ward 3(2), Etah. PAN : BAIPM8008D (Applicant) (Respondent) ORDER PER : SUNIL KUMAR SINGH, JUDICIAL MEMBER: MA No. 03/Agr/2025: This miscellaneous application has been moved u/s. 254(2) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) on behalf of the assessee for seeking rectification of the ex parte order dated 11.02.2025 passed in ITA No. 27/Agr/2024, on the ground that no whisper regarding adjournment application sent through email and Ld. AR’s oral submissions has been made in the said order nor has the paper book already filed in Assessee by Sh. Pratap Gupta, Advocate Department by Sh. Anil Kumar Sr. DR Date of hearing 22.08.2025 Date of pronouncement 26.09.2025 Printed from counselvise.com MA Nos. 03 & 04/Agr/2025ITA No. 2 | P a g e aforesaid appeal been considered by the tribunal, while disposing of the said appeal. 2. Perused the records and heard the ld. Representative for assessee and ld. DR for revenue. 3. A perusal of the records reveals that the assessee admittedly failed to file a return of income for the assessment year under consideration, despite substantial cash deposits, having been made in multiple bank accounts. The assessment in this case was, therefore, completed under section 147 read with section 144 of the Act, due to the assessee’s non-compliance of various statutory notices and failure to offer any explanation regarding the nature and source of the said cash deposits. The first appellate authority also passed an ex parte order, but on merits, owing to the absence of any submissions on behalf of the assessee. A similar pattern of non- responsiveness continued before this Tribunal during the hearing of the second appeal. Although the assessee’s persistent lackadaisical, non- cooperative, and indifferent conduct at all three stages of the proceedings is highly unbecoming, the Tribunal, in the interest of justice, deemed it fit to remand the matter back to the learned Commissioner of Income-tax (Appeals) for fresh adjudication, within three effective opportunities of hearing at the appellant’s risk and responsibility in consequential proceedings. The assessee has already been granted an opportunity to Printed from counselvise.com MA Nos. 03 & 04/Agr/2025ITA No. 3 | P a g e present his case afresh—both on legal and factual grounds—before the CIT(A). 4. Upon examination of the present miscellaneous application, which spans five pages, it is evident that the applicant seeks a re-adjudication of the appeal on merits and, in effect, a review of the Tribunal’s order dated 11.02.2025. It is settled law that such a request does not fall within the ambit of section 254(2) of the Act, which permits rectification of only such mistakes, which are apparent from the record. The remedy sought by the assessee, therefore, does not constitute a mistake apparent on the face of the record that is rectifiable under the said provision. 5. The scope of section 254(2) of the Act has been examined by Hon’ble Bombay High Court, vide order dated 06.11.1992 passed in Commissioner of Income Tax (IT-4) V M/s. Reliance Telecom Limited, reported in [1993] 203 ITR, wherein Hon’ble High Court has held as under: “ Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, \"with a view to rectifying any mistake apparent from the record\", amend any order passed by it under sub-section (1) within the time prescribed therein. It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record. This is merely a power of amending its order. The power of rectification under section 254(2) can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error Printed from counselvise.com MA Nos. 03 & 04/Agr/2025ITA No. 4 | P a g e apparent on the record, although it may be an error of judgment. The Tribunal cannot, in the exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion” 6. Hon’ble Supreme court, vide order dated 03.12.2021 passed in Civil Appeal No. 7110 of 2021, Commissioner of Income Tax (IT-4) V M/s. Reliance Telecom Limited, vide para 3.2 and 6 has held as under: “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. 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 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 Printed from counselvise.com MA Nos. 03 & 04/Agr/2025ITA No. 5 | P a g e High Court, but later on the Assessee withdrew the same in the instant case.” 7. In our considered view, the direction issued by the tribunal’s said order adequately addresses the grievances that the assessee may have had in the present case. The miscellaneous application is thus devoid of merit and is accordingly dismissed. MA No. 04/Agr/2025: 8. This miscellaneous application has been moved u/s. 254(2) of the Act on behalf of the assessee with the prayer to recall the ex parte order dated 11.02.2025 passed in ITA No. 73/Agr/2024, on the ground that no proper opportunity of hearing was afforded to the assessee before deciding the said appeal ex parte and that the facts of the present application are similar to MA No. 03/Agr/2025, discussed above. 9. A perusal of the record shows that in the instant case too, assessment u/s. 147 r/w section 144 of the Act due to the assessee’s non- compliance of various statutory notices u/s. 142(1) and show cause notice u/s. 144 of the Act and failure to offer any explanation regarding the nature and source of the cash deposits, amounting to Rs.20,46,400/-. Assessee’s first appeal also stood dismissed for want of submission on his behalf and assessee further remained absent during the course of hearing in second appeal before the Tribunal. Printed from counselvise.com MA Nos. 03 & 04/Agr/2025ITA No. 6 | P a g e 10. We notice that the assessee had raised seven effective grounds and each and every ground contains the grievance of assessee that no proper opportunity was afforded by learned CIT(Appeals) before confirming the validity of assessment order. Keeping these grounds of appeal in view, the tribunal, in the interest of justice, deemed it fit to remand the matter to the learned Commissioner of Income-tax (Appeals) for fresh adjudication. In view of our discussion made in MA No. 03/Agr/2025, we find no mistake in the order dated 11.02.2025, which may be apparent on the face of record and rectifiable u/s. 254(2) of the Act. Accordingly, the assessee’s present miscellaneous application is also liable to be dismissed. 11. In the result, both the miscellaneous applications No. 03 & 04/Agr/2025 are dismissed. Order pronounced in the open court on 26.09.2025. Sd/- Sd/- (S. RIFAUR RAHMAN) (SUNIL KUMAR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 26.09.2025 *aks/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, Agra Printed from counselvise.com "