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TMI Blog2018 (12) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 of the Act does not suffer any illegality or irregularity and it does not warrant any interference by this Tribunal. We, therefore, uphold the order of the learned CIT(A) in quashing the order u/s 154. The assessee does not stand to gain by withdrawal of the appeal and getting it dismissed as withdrawn, simply because the result in the appeal preferred against the order u/s 154/143(3) does not wipe out the liability of the assessee under the order u/s 143(3) of the Act. Further when the technical consideration is pitted against the delivery of substantial justice, it is a settled principle of law that the former must give way to the latter. Above all, by affording an opportunity to the assessee, the highest that would happen is that a cause could be decided on merits. Since the learned CIT(A) had not considered the case of the assessee on merits, we are of the considered opinion that it is a fit case to set aside the impugned order and remand the matter back to the file of the learned CIT(A) for disposing it off on merits. - ITA No.1252/Del/2016, ITA No.1724/Del/2016 - - - Dated:- 29-11-2018 - Shri Prashant Maharishi, Accountant Member And Shri K.Narasimha Chary, Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activities of the assessee remained the as was in the earlier and such a question of the nature of the activities of the assessee was considered in the earlier years also by the appellate authorities and by the Tribunal in ITA Nos.2824, 4720/1971-72, 3179 3180/72-73 where the issue was held in favour of the assessee. 5. Further, it was submitted by the assessee that the applicability of the provision to Section 2(15) is dependent upon the settlement of the issue as to whether proviso to Section 2(15) is an amendment of law or merely a declaratory of the law that was in force earlier. Further, it was submitted that the applicability of the proviso to the entire activities of the assessee is a debatable issue and in view of the judgment of the Hon ble Madras High Court in the case of CIT vs. A.G. Granites (P) Ltd.{Tax Case(Appeal) No.946 of 2007} is not available to be dealt with u/s 154 of the Act. Assessee placed reliance on the decision of the Hon ble Supreme Court in the case of T.S. Balram, ITO vs. Volkart Bros., 82 ITR 50 for the principle that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mistake apparent from record must be an obvious and patent mistake. It should not be such which can be established by a long drawn process of reasoning on points in which there may be conceivably two opinions. He further held that a mistake can be regarded as apparent only when it is glaring, obvious or self evident and at the same time free from a question which is debatable. While holding so, learned CIT(A) allowed the appeal and quashed the order passed u/s 154 of the Act. Revenue is, therefore, aggrieved by such order and challenged the same in ITA No.1252/2016 by stating that the learned CIT(A) ignored the fact that in view of amended proviso to Section 2(15) has been attracted in this case, the AO considered it a clear case of mistake apparent from record which needs to be rectified and accordingly AO did so. 10. It is the argument of the learned DR that learned AO in the assessment order dated 14.3.2013 clearly held in the penultimate paragraph that the assessee fails to qualify as an organization for charitable purpose and also as a mutual associate and, therefore, the assessee s assessment was complete by invoking proviso to Section 2(15) of the Act in view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for quite some time and the same may be followed. 14. In respect of the order u/s 154, it is submitted that the order itself speaks that it is the result of long drawn process. It is submitted that it could be seen from the order u/s 143(3) of the Act that the learned AO did not discuss the activities of the all the units of the assessee to fall within the mischief of Section 2(15) of the Act and he discussed the activities of CIRT, Pune alone to drew the inference that the surplus amount of ₹ 63,15,340/- was to be taxed. It is only an after thought and change of opinion of the learned AO that resulted in the order u/s 154 of the Act. 15. Learned AR placed reliance on the decision reported in the case of CIT vs. A.G. Granite Ltd. (supra) wherein after referring to the catena of decisions on the aspects, the court reached the conclusion that a debatable issue would not fall within the purview of Section 154 of the Act. He further submitted that in view of the decision of the Hon ble Supreme Court in the case of India Trade Promotion Organization vs DIG (Exemption), 371 ITR 333, ICAI vs DGIT(E) (2012) 374 ITR 99; and ICAI vs DGIT(E) (2013) 358 ITR 91, Business Trade or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be only one appeal for one assessment year. Obviously, it is a mistaken incorrect statement because the appeals were preferred against two separate orders operating in two different domains. Even assuming for a while that the assessee withdrew the appeal, there is nothing for us at this stage not to believe the statement of the assessee that such an act of withdrawal by the Authorized Representative is without instruction. As a matter of fact, the assessee does not stand to gain by withdrawal of the appeal and getting it dismissed as withdrawn, simply because the result in the appeal preferred against the order u/s 154/143(3) does not wipe out the liability of the assessee under the order u/s 143(3) of the Act. Further when the technical consideration is pitted against the delivery of substantial justice, it is a settled principle of law that the former must give way to the latter. Above all, by affording an opportunity to the assessee, the highest that would happen is that a cause could be decided on merits. 18. Since the learned CIT(A) had not considered the case of the assessee on merits, we are of the considered opinion that it is a fit case to set aside the impugned order a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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