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2016 (3) TMI 1345 - AT - Income TaxRectification petition u/s 254 - as submitted the Hon ble Bench has inadvertently remanded the order appeal against by the revenue to the file of the learned CIT(A) whereas after the conclusion of hearing on 16.10.2014 it had pronounced its order dismissing the revenue s appeal - addition u/s 68 - HELD THAT - Application has no merit and deserves to be dismissed. We find from the record that the basic submission of the assessee that the order under challenge is inadvertently at variance with the pronounced order is wrong on facts as we find on consulting the records that no pronouncement dismissing the appeal of the Revenue was made. Further we find no such recording on record that the revenue s appeal is dismissed on merits. The hearing in the present case as is admitted by all concerned stood concluded on 25.06.2014 when no pronouncement was made. However while considering the fact that the ld. Sr. Advocate had submitted that consistently the issue has been decided in its favour by the ITAT this submission was found to be factually incorrect and contrary to record. Accordingly the appeal was listed for clarification on 22.08.2014 and the hearing was finally concluded on 16.10.2014. In view of the above order dated 22.08.2014 the parties were heard on 16.10.2014 in respect of the above clarification. The ld. Sr. Advocate had addressed the correct factual position on the said date by clarifying on query that the identical issue in 2005-06 and 2006-07 assessment years had been restored by the ITAT to the CIT(A) in the two immediately preceding assessment year. Hence contrary to the submission made earlier on behalf of the assessee that the issue stood concluded consistently in assessee s favour by the ITAT it was submitted on clarification that infact the issue did not stand concluded in assessee s favour by consistent orders of the ITAT in the earlier years. Consequently this fact stands addressed in para 6.1 of the order of the ITAT leading to the conclusion drawn requiring that the issue should be restored back to the file of the CIT(A) in para 8 & 8.1. The present case is squarely covered by the exception carved out by the decision of the Hon ble Supreme Court in Vinod Kumar Singh vs BHU 1987 (11) TMI 385 - SUPREME COURT as there was no pronouncement that the Revenue s appeal is being dismissed and there was no order dictated in the open Court dismissing the Revenue s appeal. Further the exceptional feature why the case itself was required to be re-heard is evident from the order sheet dated 22.08.2014 on which date the clarification was addressed the merits of which have not been touched upon in the M.A filed by the assessee. Accordingly on consideration of the peculiar facts and circumstances of the case we find that by filing the M.A. the assessee is infact seeking a Review of the order dated 12.12.2014 as is evident from the arguments advanced on merit and reliance placed on CIT vs Kamdhenu 2011 (12) TMI 394 - DELHI HIGH COURT in the context of proposition of law in regard to addition u/s 68 of the Income Tax Act. The assessee having failed to point any error apparent on the face of the record the M.A filed is dismissed. - Decided against assessee.
Issues Involved:
1. Request for recall of the ITAT order dated 12.12.2014. 2. Alleged mistake in the ITAT order contrary to the pronouncement made in open court. 3. Applicability of Rule 34(5)(a) of the Income Tax Tribunal Rules, 1963. 4. Examination of legal precedents cited by the assessee. 5. Examination of the merits of the case and facts presented. Detailed Analysis: 1. Request for Recall of the ITAT Order Dated 12.12.2014: The assessee filed a Miscellaneous Application (M.A.) requesting the recall of the ITAT order dated 12.12.2014, arguing that the order suffered from a mistake apparent on record. The assessee contended that the ITAT had inadvertently remanded the order back to the CIT(A) instead of dismissing the revenue's appeal, which was pronounced in open court on 16.10.2014. 2. Alleged Mistake in the ITAT Order Contrary to the Pronouncement Made in Open Court: The assessee claimed that the ITAT's written order dated 12.12.2014 was at variance with the pronouncement made on 16.10.2014, which dismissed the revenue's appeal. The affidavits submitted by the counsels supported this claim. However, upon reviewing the records, the ITAT found no evidence of such pronouncement dismissing the revenue's appeal on 16.10.2014. The ITAT clarified that the hearing concluded on 25.06.2014 without any pronouncement, and the case was listed for clarification on 22.08.2014, with the final hearing on 16.10.2014. 3. Applicability of Rule 34(5)(a) of the Income Tax Tribunal Rules, 1963: The ITAT examined Rule 34(5)(a), which allows for immediate pronouncement of the order upon conclusion of the hearing. However, the ITAT noted that no pronouncement dismissing the revenue's appeal was made on 16.10.2014. The ITAT emphasized that the date of pronouncement is when the order is dated and signed by both Members or Judges. 4. Examination of Legal Precedents Cited by the Assessee: The assessee relied on the case of CIT vs G. Sagar Suri & Sons, where the ITAT had rectified an order that was at variance with its pronouncement. However, the ITAT found that this precedent did not apply to the present case, as no pronouncement dismissing the revenue's appeal was made. The ITAT also referenced other legal precedents, including the Supreme Court's decision in Vinod Kumar Singh vs Banaras Hindu University, which emphasized that a judgment becomes operative upon pronouncement in open court, provided it is subsequently signed. 5. Examination of the Merits of the Case and Facts Presented: The ITAT reviewed the merits of the case, noting that the CIT(A) had not considered all material facts in the order under challenge. The ITAT found that the CIT(A) had been swayed by past legal positions without verifying the specific facts of the case. The ITAT restored the issue back to the CIT(A) for a thorough examination of all necessary evidence. The ITAT concluded that the assessee's M.A. was essentially a device to reargue the appeal on merits, which is not permissible. Conclusion: The ITAT dismissed the assessee's M.A., finding no merit in the claim of an error apparent on the face of the record. The ITAT emphasized that the written order dated 12.12.2014 was consistent with the facts and legal principles, and no pronouncement dismissing the revenue's appeal was made on 16.10.2014. The ITAT reiterated that the power of review is not available to it, and the petition was an attempt to reargue the appeal on merits. The order was pronounced in the open court on 14th March 2016.
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