2019 (12) TMI 300 - AT - Income Tax

Rectification of mistake - error apparent on the face of record - Validity of remanding the matter - whether this Tribunal erred in remanding the matter to the file of CIT(A) for his fresh consideration in the facts and circumstances of the case? - HELD THAT - The sub-Section (2) of Section 254 of the Act provides jurisdiction to Tribunal to rectify any mistake apparent in the record, amend any order passed by it under sub-section (1) of section 254 of the Act. It is an established principle that this Tribunal does not have any power to review its own power under the provisions of the Act. The only power which the Tribunal processes is to rectify any mistake in its own order which is apparent from the record. In the present case after examining the record, the Tribunal came to the conclusion that it was not possible to decide the additional ground without there being any relevant material evidence on record. The Tribunal cannot exercise its power of rectification taking into consideration any other circumstances which would support or not support its conclusion so arrived at - The power of rectification U/s 254(2) of the Act can be exercised only when the mistake which is sought to be rectified as an obvious and patent mistake which is apparent on record and not a mistake requires to be on record. Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, it may be an error of judgement - there was no opportunity for the respondent Revenue to file its submissions along with the relevant evidence involving the legal ground - miscellaneous application filed by the assessee fails and it is dismissed.

Summary

Issues:
Whether the Tribunal erred in remanding the matter to the file of CIT(A) for fresh consideration?

Analysis:
The appellant filed a miscellaneous application to recall the Tribunal's order dated 30.08.2017 in ITA No.2341/Kol/2016. The main contention was whether the Tribunal was wrong in remanding the matter to CIT(A) for fresh consideration. The appellant argued that the Tribunal heard the appeal extensively on additional grounds raised, which were purely legal and required no fresh investigation of facts. Citing the case of Zuari Leasing & Finance Ltd., the appellant contended that remanding the matter was unnecessary when all relevant material was on record. However, the Tribunal found that the additional ground questioning the jurisdiction of the Tax Recovery Officer was not raised before CIT(A), and the appellant remained absent during the first appellate proceedings, leading to an ex-parte decision by CIT(A) confirming the AO's order.

The appellant also referenced various legal cases to support their argument against the remand. In the case of United Commercial Bank vs CIT, it was noted that the Tribunal's power to remand should be sparingly used when basic facts are already on record, which was not the case here. Similarly, in the case of Maharani Kanak Kumari Sahiba, the High Court of Patna emphasized that remand should only be made in rare cases when a just order cannot be made based on existing evidence. The appellant's reliance on these cases was deemed irrelevant to the present issue due to the lack of evidence supporting the additional ground raised.

Furthermore, the appellant cited the decision in the case of Tin Yuan India Pvt. Ltd., where remanding the matter for verification of basic facts was considered unnecessary when such facts were already available. The Tribunal found that in the present case, there were no basic facts essential for adjudicating the additional ground, justifying the remand. The appellant also referred to the case of Vishu Impex Pvt. Ltd., emphasizing the need for proper procedure and evidence when adjudicating legal issues. However, in this case, there was a lack of such evidence before both the Tribunal and CIT(A).

Ultimately, the Tribunal held that the power of rectification under Section 254(2) of the Act could only be exercised for obvious and patent mistakes apparent on record, not for matters requiring further evidence or investigation. As there was no relevant material evidence to decide the additional ground, the Tribunal dismissed the appellant's miscellaneous application, concluding that there was no opportunity for the respondent Revenue to present its submissions on the legal ground raised. The application was thus dismissed, upholding the Tribunal's decision to remand the matter to CIT(A) for fresh consideration.