2019 (10) TMI 854 - AT - Income Tax

Rectification of mistake u/s 254 - 1st fold of contention of the Revenue that the ITAT has not provided sufficient opportunity for the additional ground raised by the assessee - HELD THAT - On perusal of the application filed by the assessee for filing the additional ground of appeal dated 04.06.2019, we note that the copy of the additional ground was also forwarded to the departmental representative. DR was present on the date of filing the additional ground of appeal as well as on the date of hearing i.e. 06.06.2019 and 11.06.2019 respectively. Moreover, there was no objection raised by the learned departmental representative on the date of hearing seeking time for the preparation of the case on the additional ground of appeal. It is inferred that there was consent of the learned departmental representative at the time of hearing of the appeal and no objection of whatsoever was raised for seeking the adjournment. In the impugned case was the stay granted matter and the assessee in the stay order was directed not to seek any adjournment without just cause. Had there been any objection from the side of the revenue on day of hearing of the case, the learned DR was to move an application for the same. But we find that there was no such application moved by the revenue. Appeal filed by the assessee was adjudicated on technical ground raised by the assessee holding that there was no satisfaction recorded by the AO before initiating the proceedings u/s 153C - such issue was raised by the assessee in ground No. 3 as well as additional ground of appeal filed in the letter dated 4 June 2019. Thus, it is clear that the grievance of the revenue that there was not provided sufficient opportunity to the revenue does not appear to be correct in the given facts and circumstances. We hold that there is no mistake apparent from the record in the order of the ITAT on account of non-granting of the opportunity to the revenue. Initiating the proceedings u/s 153C - ITAT in his order 2019 (7) TMI 1525 - ITAT AHMEDABAD after considering the materials available on record including the information obtained under RTI decided the appeal of the assessee. Moreover, we note that there was the circular No. 24/2015 issued by the CBDT dated 31 December 2015 requiring the AO to record the satisfaction under the provisions of section 153C of the Act even if the AO of such person and the other person is one and the same Moreover, we note that the revenue has not pointed out any specific defect in the order passed by the ITAT. As we have already held that, the scope of the rectification under section 254(2) of the Act is very limited to the extent of mistake apparent from record for which 2 views are not possible. Thus we hold that the ITAT has taken a conscious decision after due application of mind. Thus the order of the tribunal does not suffer from any infirmity which is apparent from record. In view of the above discussions and finding, we are of the view of that there is no merit in the Misc. Application filed by the Revenue, which is accordingly dismissed.

Summary

Issues Involved:
1. Whether the ITAT provided sufficient opportunity to the Revenue regarding the additional ground of appeal.
2. Whether the proceedings under Section 153C of the Act were initiated after complying with the provisions of law and recording the necessary satisfaction.

Detailed Analysis:

1. Sufficient Opportunity to the Revenue:
The Revenue contended that the ITAT admitted an additional ground of appeal from the assessee without providing sufficient opportunity for the Revenue to respond. The additional ground was filed on 04.06.2019, and the hearing was held on 11.06.2019, providing only seven days for the Revenue to prepare. The ITAT noted that the departmental representative was present on the dates of filing and hearing of the additional ground and did not raise any objections or seek an adjournment. The ITAT concluded that there was consent from the departmental representative for the hearing and no mistake apparent from the record regarding the opportunity provided to the Revenue.

2. Compliance with Section 153C Provisions:
The Revenue argued that the proceedings under Section 153C were initiated after recording the required satisfaction, which was also admitted by the assessee in statements. The ITAT reviewed the materials on record, including information obtained under RTI, and noted the CBDT circular No. 24/2015, which mandates recording satisfaction even if the AO of the searched person and the other person is the same. The ITAT held that the Revenue did not point out any specific defect in its order and that the scope of rectification under Section 254(2) is limited to mistakes apparent from the record. The ITAT concluded that its conscious decision did not suffer from any infirmity apparent from the record.

Conclusion:
The ITAT dismissed the Miscellaneous Application filed by the Revenue, holding that there was no mistake apparent from the record in its order regarding the opportunity provided to the Revenue and the compliance with the provisions of Section 153C. The ITAT emphasized that non-adjudication of the issue on merit does not constitute a mistake in its order. The Miscellaneous Application of the Revenue was dismissed, and the order was pronounced in open court on 11/10/2019.