2019 (4) TMI 91 - AT - Income Tax

Rectification of mistake u/s. 254(2) - review v/s rectification - HELD THAT - Revenue want us to sit in judgment over the tribunal s order on the issue of jurisdiction adjudicated in that order. As this will be a review of order not permissible u/s. 254(2) this is not sustainable. It is settled law that review of the order of the tribunal u/s. 254(2) in the garb of the rectification of mistake is not permissible.

Issues: Rectification of mistake apparent from the record in the order of the tribunal in ITA Nos. 3275 & 3276/Mum/2015 for AY 2003-04 and 2004-05.

Issue 1: Rectification of Mistake in Tribunal's Order

The Revenue filed miscellaneous applications (M.A.) seeking rectification of a mistake apparent from the record in the tribunal's order dated 23.08.2016 for AY 2003-04 and 2004-05. The Revenue contended that the order dated 16.04.2018, passed by the single member bench, did not consider the earlier order of 23.08.2016 where the appeals filed by the assessee were held defective and dismissed as un-admitted. The Revenue argued that without recalling the first order, a fresh order could not be passed. However, the tribunal noted that the order dated 23.08.2016 was subsequently recalled by a Division bench in the interest of justice, and the Revenue was duly represented during the appeal hearing. The tribunal criticized the Revenue's approach as irresponsible and cavalier, emphasizing that the appellate order must be based on the grounds or questions raised. The tribunal dismissed the Revenue's insinuation that the order was passed in oblivion to the facts and antecedents of the appeal.

Issue 2: Allegation of Invalid Assessment

The Revenue alleged that the assessment made under section 143(3) r.w.s 147 was invalid as the Assessing Officer (AO) had initiated proceedings under section 153C but proceeded with assessment under section 143(3) r.w.s 147 without complying with the earlier proceedings. The Revenue argued that the assessee's objections to the 153C proceedings were acknowledged by the AO, leading to the conclusion that section 153C did not apply. The tribunal noted that the Revenue's request to sit in judgment over the tribunal's order on jurisdiction was not permissible under section 254(2) of the Act. It held that a review of the tribunal's order in the guise of rectification of mistake was not sustainable. Consequently, the tribunal dismissed the miscellaneous applications filed by the Revenue, without imposing any costs.

In conclusion, the appellate tribunal dismissed the Revenue's miscellaneous applications seeking rectification of a mistake apparent from the record in the order dated 16.04.2018 for AY 2003-04 and 2004-05. The tribunal clarified that the earlier order of 23.08.2016, which dismissed the appeals as defective, was duly recalled in the interest of justice, and the Revenue was represented during subsequent appeal hearings. The tribunal criticized the Revenue's approach as irresponsible and cavalier, emphasizing the necessity for appellate orders to be based on the grounds raised. Additionally, the tribunal rejected the Revenue's request to review the order on jurisdiction, stating that such a review was not permissible under the relevant Act.

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