2015 (5) TMI 577 - AT - Income Tax

Rectification of error - order was pronounced beyond the period of 60 days - Held that - Merely because, there is a delay due to some exceptional circumstances, would not render the decision of the Tribunal as illegal or void. The contention of the Ld. Counsel that since the order was pronounced beyond the period of 60 days from the date of hearing and hence, the same was barred by limitation has no force and as such is not tenable. We may point out here that the function of pronouncement or orders is not like of a nature such as an actionable legal claim which if not claimed within the period of 60 days or 90 days, can be said to have been barred by limitation. Further such a contention that the order was pronounced beyond the period of 60 days can not validly be raised in a petition u/s 254 of the Act, as the same can not be said to be an error apparent on record. If the assessee has any grievance against the impugned order, proper course to agitate the same is by filing an appeal before the next appellate authority but not with the present application under section 254(2) of the Income Tax Act. The Hon ble Bombay High Court in the case of Commissioner Of Income-Tax vs Ramesh Electric And Trading Co. 1993 (1992 (11) TMI 32 - BOMBAY High Court), while relying upon the decision of T. S. Balaram, ITO v. Volkart Brothers 1971 (8) TMI 3 - SUPREME Court and further relying upon the decisions of the various High Courts has categorically held that the power of rectification under section 254(2) of the Income-tax Act 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 by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment and under such circumstances the Tribunal has no jurisdiction under section 254(2) to pass the second order. - Decided against assessee.

Issues Involved:
1. Pronouncement of the order beyond the prescribed period of limitation.
2. Non-consideration of factual discrepancies by the ITAT.
3. Failure to adjudicate on specific grounds of appeal.
4. Reliance on the decision of Mak Data (P) Ltd. vs. CIT without prior notice.
5. Non-consideration of various decisions relied upon by the assessee.

Issue-wise Detailed Analysis:

1. Pronouncement of the Order Beyond the Prescribed Period of Limitation:
The applicant/assessee contended that the impugned order was pronounced after the prescribed period of limitation under Rule 34(5)(c) of the Income Tax (Appellate Tribunal) Rules, 1963. The Tribunal clarified that Rule 34(5) does not prescribe a strict limitation period but emphasizes that every effort should be made to pronounce the order within 60 days from the hearing date. If not practicable, the order can be pronounced within a further period of 30 days under exceptional circumstances. The Tribunal explained that the term "exceptional and extraordinary circumstances" includes factors like complexity of the matter, lengthy arguments, or unavailability of the adjudicating members. The Tribunal concluded that pronouncing the order beyond 60 or even 90 days does not invalidate the order or render it beyond the period of limitation. Therefore, the contention of the assessee was found to be misconceived and not tenable.

2. Non-consideration of Factual Discrepancies by the ITAT:
The assessee argued that the ITAT did not consider the factual discrepancies in the order of the Assessing Officer (A.O.), which were pointed out based on lease deeds and other details filed during the assessment proceedings. The Tribunal reviewed its order and found that the contentions regarding factual discrepancies had been thoroughly examined, dealt with, and discussed. Hence, this contention did not constitute an error apparent on record.

3. Failure to Adjudicate on Specific Grounds of Appeal:
The assessee claimed that the ITAT failed to adjudicate on Ground Nos. 4 and 5 of the grounds of appeal, which pertained to factual discrepancies and inaccuracies between the assessment order and the penalty order. The Tribunal noted that these issues had been addressed in the impugned order and therefore did not constitute an error apparent on record.

4. Reliance on the Decision of Mak Data (P) Ltd. vs. CIT Without Prior Notice:
The assessee contended that the ITAT relied on the decision of Mak Data (P) Ltd. vs. CIT, which was not cited by either party, and no opportunity of hearing was given regarding this case law. The Tribunal held that the decision of the Hon'ble Supreme Court is binding on all subordinate courts and Tribunals, and its application did not cause any prejudice to the assessee. The Tribunal found no merit in this contention.

5. Non-consideration of Various Decisions Relied Upon by the Assessee:
The assessee argued that the ITAT failed to consider various decisions relied upon by them. The Tribunal reviewed its order and found that all submissions and relevant decisions had been considered and addressed. The Tribunal emphasized that it does not have jurisdiction to recall or review its order on merits under section 254(2) of the Income Tax Act. Any grievance against the impugned order should be addressed by filing an appeal before the next appellate authority.

Conclusion:
The Tribunal dismissed the miscellaneous application, finding no merit in the contentions raised by the assessee. The order was pronounced in the open court on 15.04.2015.

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