2020 (12) TMI 1083 - HC - Income Tax

Rectification application u/s 254 - Admissibility and consider the additional evidence furnished by the appellant under Rule 29 of the ITAT Rules - HELD THAT - This Court would not entertain an appeal under Section 260A of the Act if an application for rectification under Section 254(2) of the Act is pending consideration as there is some overlap and if the order is recalled by the Tribunal, then the initial appeal would become infructuous. But in the present case, as the last date for availing the benefit of amnesty scheme being Vivad se Vishwas Scheme is 31st December, 2020 and despite all efforts, the Tribunal is not deciding the application for rectification under Section 254(2) of the Act and learned counsel for respondent has stoutly opposed passing of any order in the present appeal to expedite disposal of the application filed by the appellant under section 254(2) before the Tribunal, this Court is of the opinion that if the present appeal is not entertained, it would gravely prejudice the appellant. As far as the argument that the appellant s application under Rule 29 of ITAT Rules is liable to be dismissed as the conditions mentioned therein are not attracted, this Court is of the view that it cannot second guess what order the Tribunal would pass as it is not for this Court but for the Tribunal to decide the said application. In fact, it has been so held by the Supreme Court in the case of Jyotsna Suri 1998 (10) TMI 552 - SC ORDER This Court is not impressed by the submission of learned standing counsel for the respondent that the additional evidence filed by the appellant had in all probability been considered by the Tribunal. In the impugned order passed by the Tribunal, there is no reference to either the additional documents placed on record by the appellant or to the written submissions/synopsis filed by the appellant. To hold that the additional evidence filed by the appellant had been considered by the Tribunal would be to presume and assume certain facts which are not apparent from the record. This Court is further of the opinion that as the appellant had admittedly filed an application for admission of additional evidence in terms of Rule 29 of the ITAT Rules prior to the date of final hearing, it was incumbent upon the Tribunal to consider the said application before proceeding ahead with the final hearing. The present appeal is allowed and the order of the Tribunal dated 28th February, 2019 is set aside; the appeal of the appellant is restored to the file of the Tribunal for de novo hearing.

Issues Involved:
1. Whether the Tribunal erred in law by not adjudicating upon the admissibility and considering the additional evidence furnished by the appellant under Rule 29 of the ITAT Rules.
2. Whether the delay in filing the appeal should be condoned.
3. The scope and difference between Sections 254(2) and 260A of the Income Tax Act, 1961.
4. Whether the additional evidence filed by the appellant was considered by the Tribunal.

Detailed Analysis:

1. Tribunal's Error in Considering Additional Evidence:
The appellant filed an application for admission of additional evidence under Rule 29 of the ITAT Rules before the final hearing. The Tribunal concluded the hearing without addressing this application and subsequently passed an order on 28th February 2019. The appellant argued that the Tribunal erred by not considering the additional evidence, which led to a self-contradictory reasoning in the impugned order. The Court noted that it was incumbent upon the Tribunal to consider the application for additional evidence before proceeding with the final hearing, as mandated by the Supreme Court in Jyotsna Suri Vs. ITAT.

2. Condonation of Delay:
The appeal was delayed by 498 days because the appellant was awaiting the Tribunal's decision on a rectification application filed under Section 254(2) of the Act. The appellant filed the present appeal to avail benefits under the 'Vivad se Vishwas Scheme'. The Court condoned the delay, citing settled law that in the absence of mala fide or deliberate delay, the Court should promote substantial justice. The Court referenced Collector, Land Acquisition, Anantnag & Anr v. Mst. Katiji and Others and N. Balakrishnan Vs. M. Krishnamurthy to support this reasoning.

3. Scope of Sections 254(2) and 260A:
The Court agreed with the appellant that Sections 254(2) and 260A of the Act are distinct and independent remedies. The Court clarified that invoking Section 254(2) does not bar a party from invoking Section 260A. The Court noted that while it would typically avoid entertaining an appeal under Section 260A if a rectification application under Section 254(2) was pending, the unique circumstances of the case justified hearing the appeal to prevent prejudice to the appellant.

4. Consideration of Additional Evidence by the Tribunal:
The respondent argued that the Tribunal likely considered the additional evidence as it was referenced in the written submissions. However, the Court found no indication in the Tribunal's order that the additional evidence or written submissions were considered. The Court emphasized that assuming the Tribunal considered the additional evidence without explicit reference would be speculative.

Court's Reasoning and Relief:
The Court highlighted that it is not for the Court but for the Tribunal to decide the application for additional evidence. The Court set aside the Tribunal's order dated 28th February 2019 and restored the appellant's appeal to the Tribunal for de novo hearing, following the Supreme Court's directive in Jyotsna Suri Vs. ITAT. The Court clarified that it did not express any opinion on the merits of the appellant's application under the 'Vivad se Vishwas Scheme'. The original record of ITAT was ordered to be sent back.

Conclusion:
The appeal was allowed, the delay in filing was condoned, and the Tribunal's order was set aside for reconsideration of the additional evidence application. The Court emphasized the importance of promoting substantial justice and the distinct scopes of Sections 254(2) and 260A of the Act.

← Previous Next →