2017 (1) TMI 1052 - HC - Income Tax

Rectification of mistake - case law referred to in paperbook not considered - Held that - It is settled position in law that statement of fact recorded in the order of the Court/Tribunal has to be accepted as correct and conclusive. It cannot be contradicted by affidavit or otherwise In this case, the Tribunal has categorically recorded in the impugned order, that the decision of Manilal Tarachand (2001 (9) TMI 57 - GUJARAT High Court) was not one of the decisions referred to during the course of hearing of 9th September, 2015 as it states cases referred to have been dealt with. Thus, the aforesaid case laws would not apply to the facts of the present case. In the present facts, as pointed out hereinabove, the Tribunal has categorically recorded that all the decisions which were referred to and relied upon by the petitioner on the date of hearing on 9th September, 2015 have been dealt with.

Summary

Issues:
Challenge to ITAT order for rectification of order dated 14th September, 2015 under Section 254(1) of the Income Tax Act, 1961.

Analysis:
The petitioner challenged the ITAT order dated 28th September, 2016, which dismissed the Miscellaneous Application for rectification of the order dated 14th September, 2015. The petitioner contended that a legal paperbook was filed during the hearing, citing a decision of the Gujarat High Court, which was not considered in the ITAT's order. The petitioner argued that this was a mistake apparent on the face of the record and warranted rectification. The rectification application was filed after 7 months, raising grounds such as the non-consideration of the Gujarat High Court decision and a vague notice under the Income Tax Act.

The main issue raised by the petitioner was the non-consideration of the Gujarat High Court decision during the hearing. The petitioner claimed that the decision applied to their case and was in their favor. However, the ITAT's order negated this claim by stating that all cases referred to during the hearing had been dealt with, including the decision in question. The Court emphasized that statements of fact in the tribunal's order are conclusive and cannot be contradicted by affidavit. It was noted that the petitioner should have raised this issue promptly after the hearing to ensure it was fresh in the tribunal's mind.

The petitioner relied on legal precedents to support their argument that if a tribunal omits to consider a relevant decision cited during the hearing, the application for rectification should be allowed. However, the Court found that in this case, the ITAT explicitly stated that the decision in question was not referred to during the hearing. Therefore, the precedents cited by the petitioner did not apply to the present situation. The Court concluded that since all decisions cited during the hearing had been addressed by the ITAT, there was no basis to interfere with the ITAT's order. The Court did not delve into other observations in the ITAT's order regarding the scope of a rectification application under Section 254(2) of the Act, deeming it academic in the context of the present case. Ultimately, the petition was dismissed, and no costs were awarded.