2018 (10) TMI 1889 - AT - Service Tax

Rectification of mistake - error apparent on the face of record - consideration of decisions mentioned - HELD THAT - From the record it is noticed that Ld. AR had submitted a paper book of decisions in support of the appeal and cited the decisions at Sr. No. 9 to 11 in support of his arguments. The said decisions cited at Sr. No 9 to 11 could not be considered and because of oversight they were missed in the order while dismissing ground no. 2 of the appeal filed by the assessee. The decisions at Sr. No. 9 to 11 of the paper book of the decisions submitted by the assessee in support of ground no. 2 of the appeal though were cited before us but because of oversight it could not be considered or distinguished in the order while dismissing ground no. 2 of the appeal filed by the assessee - thus there is mistake apparent from record therefore we recall our decision on ground no. 2 of the appeal in order dated 19.03.18 and direct the Registry to fix the matter for re-hearing on ground no. 2 and as such this ground of appeal will be heard afresh on merits. Application allowed.

Summary

Issues involved: Rectification of mistake apparent from record in the order of the Tribunal regarding indexation and decisions cited by the Authorised Representative.

Issue 1: Rectification of mistake apparent from record regarding indexation

The assessee filed a Miscellaneous Application seeking rectification of a mistake apparent from the record in the order of the Tribunal dated 19.03.2018. The mistake in question pertained to the treatment of indexation on the basis of the date of the first payment rather than in accordance with the schedule of payment. The Authorised Representative argued that indexed cost of acquisition should be based on the asset's cost as on the date of acquisition, regardless of payment dates, emphasizing that each installment payment constitutes only a part of the asset's cost. The Tribunal, in its initial order, failed to acknowledge the contentions raised by the Authorised Representative and the decisions cited, leading to the need for rectification.

Issue 2: Rectification of mistake apparent from record regarding decisions cited

The Tribunal, in its original order, overlooked considering certain decisions cited by the Authorised Representative in support of the appeal ground. These decisions, numbered 9 to 11 in the paper book submitted, were crucial for the arguments presented. The failure to address these decisions led to an incomplete assessment of the appeal ground and necessitated rectification to ensure a fair consideration of all relevant legal precedents.

Analysis and Conclusion

Upon hearing the arguments from both sides, the Tribunal acknowledged the oversight in not considering the decisions cited and the importance of rectifying such mistakes to prevent prejudice to any party. Referring to legal precedents, including the case of ACIT v. Saurashtra Kutch Stock Exchange Ltd., the Tribunal recognized that non-consideration of a decision of the jurisdictional Court or the Supreme Court amounts to a mistake apparent from the record. Additionally, the judgment in Honda Siel Power Products Ltd. v. CIT highlighted the significance of rectifying mistakes to avoid causing prejudice to the parties involved.

In light of the legal principles established by the Supreme Court in the aforementioned cases, the Tribunal concluded that there was a mistake apparent from the record regarding the non-consideration of the decisions cited by the Authorised Representative. As a result, the Tribunal decided to recall its decision on the relevant appeal ground, directing a re-hearing on the matter to ensure a fair and comprehensive assessment. It was clarified that no opinion was expressed on the merits of the case, and the regular Bench of the Tribunal would independently evaluate the appeal ground without influence from previous observations. The Miscellaneous Application filed by the assessee was allowed, and the matter was scheduled for re-hearing on ground no. 2.

In summary, the judgment by the Appellate Tribunal at ITAT Mumbai addressed the rectification of mistakes apparent from the record in the initial order regarding indexation and decisions cited by the Authorised Representative. The Tribunal, guided by legal precedents, emphasized the importance of rectifying oversights to uphold fairness and prevent prejudice. The decision to recall the initial order and schedule a re-hearing on the relevant appeal ground demonstrated the Tribunal's commitment to ensuring a thorough and unbiased assessment of the case.