2012 (3) TMI 143 - AT - Income Tax

Rectification of mistake - Time Period - order not passed within the period of three month from the date of hearing - Held That - when the assessee has not brought on record anything to establish prima facie that any material fact or contention was left without considering by the Tribunal while passing the impugned order. Accordingly, we do not agree with the contentions of the learned counsel for the assessee on this point. Order Signed by different member and Pronounced by different member - Held That - the order was signed by both the Members who have heard the appeal in question. Since one of the Members was already transferred was not available at Mumbai, therefore, another Accountant Member Shri R.S.Syal was nominated to substitute D.K.Shrivastava, AM who was transferred, therefore, there is no illegality or defect in the process of pronouncement of the impugned order. Rectification of order of Tribunal - granted tenancy to the clients even though the same is termed as cabin space - Held That - Tribunal has duly considered al l the contentions and the decision relied upon by the ld. Sr.Counsel for the assessee. Therefore, once the findings given on merits, after considering the relevant records as well as facts then even if the said findings of this Tribunal is not sustainable would not bring the case under the scope of section 254(2) of the Income Tax Act, 1961.

Summary

Issues Involved:
1. Delay in pronouncement of the order.
2. Pronouncement of the order by a different member.
3. Alleged erroneous findings by the Tribunal.

Issue-wise Detailed Analysis:

1. Delay in Pronouncement of the Order:
The assessee contended that the Tribunal's order was pronounced beyond the stipulated period of three months from the date of hearing, citing the decision in *Shivsagar Veg. Restaurant v/s ACIT (2009) 317 ITR 433 (Bom)*. The Tribunal acknowledged the delay but noted that Rule 34(5) of the Income Tax Appellate Rules, 1963, allows for flexibility in extraordinary circumstances. The delay was attributed to the transfer of one of the bench members, Shri D.K. Shrivastava, which constituted an exceptional circumstance. The Tribunal concluded that the delay did not render the order illegal or void, as there was no evidence that material facts or legal points were ignored due to the delay.

2. Pronouncement of the Order by a Different Member:
The assessee argued that the order was signed by the members who heard the matter but pronounced by a different member, questioning the legality of this process. The Tribunal clarified that the order was signed by both members who heard the appeal before one member was transferred. Rule 34(6) permits the pronouncement of the order by another member nominated by the President, Sr. Vice-President, or Vice-President if the original members are unavailable. The Tribunal found no illegality or defect in the process, as the proper procedure was followed.

3. Alleged Erroneous Findings by the Tribunal:
The assessee claimed that the Tribunal's findings were erroneous and contrary to the decisions cited during the hearing. The Tribunal reviewed the relevant material and noted that it had duly considered all contentions and decisions relied upon by the assessee. The Tribunal emphasized that section 254(2) of the Income Tax Act, 1961, does not permit reappreciation of facts or review of its earlier order. The Tribunal's findings were based on exclusive reasoning and detailed discussion of the facts and statutory provisions. Therefore, the Tribunal concluded that there was no merit in the Miscellaneous Application filed by the assessee.

Conclusion:
The Tribunal dismissed the Miscellaneous Petition filed by the assessee, stating that the delay in pronouncement was justified due to exceptional circumstances, the order was properly pronounced by a nominated member, and the findings were based on a thorough consideration of all relevant material. The Tribunal also noted that the assessee had filed an appeal against the order before the Hon'ble Jurisdictional High Court, making the Miscellaneous Application for fresh hearing not maintainable. The order was pronounced in open court on 4th January 2012.