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TMI Blog2022 (2) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Saurashtra Kutch Stock Exchange Ltd., [ 2008 (9) TMI 11 - SUPREME COURT] is of no assistance to the assessee. The scope of rectification is confined to mistake apparent on the face of the record and not a mistake with regard to debatable questions, where a conscious decision has been taken. Reference may be made to the judgment of Hon ble Supreme Court in the case of Deva Metal Powders (P.) Ltd. v. Commissioner, Trade of Tax, U.P., [ 2007 (12) TMI 221 - SUPREME COURT] In the present case, a reading of the application itself shows that instead of pointing out a mistake apparent on record, the ld. AR attempts to argue out a case for review or re-writing of the order of the Tribunal. The entire arguments of the ld. AR was not to point out any obvious or patent mistake to be rectified, but to make out a case for re-argument, which cannot be permitted u/s. 254(2) - Decided against assessee. - M.P. No.2/Bang/2022 [in ITA No. 304/Bang/2018] - - - Dated:- 8-2-2022 - Shri Chandra Poojari, Accountant Member And Smt. Beena Pillai, Judicial Member For the Appellant : Shri Ravi Shankar, Advocate For the Respondent : None ORDER PER CHANDRA POOJARI, ACCOUNTAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by issuing of the notice under Section 148 of the Act were supplied to the appellant assessee. It is also admitted position that the appellant assessee after receipt of such reasons raised objections. It is also undisputed position that the Assessing Officer did not dispose of the objections prior to proceeding with the assessment further and proceeded to pass the order for assessment. Under the circumstances, it can be said that the mandatory procedure of disposal of the objection by Assessing Officer before proceeding with the assessment has not been followed and exercise of power can be said as not only vitiated, but the order of assessment cannot be sustained .(emphasis supplied) 12. If the decision of the Assessing Officer is illegal on the face of it, in our view, it would fall in the exceptional category of making departure from the normal principles of self impose limitation of not to interfere in a matter where there is existence of alternative statutory remedy. 13. In view of the aforesaid, the impugned order passed by the learned Single Judge is set aside . The impugned order of assessment is also set aside . It is observed that the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner submits that a fair opportunity for making submissions in respect of the above grounds be given to the assessee-appellant / Respondent, since the assessee-appellant / Respondent was not put to notice about the decisions relied upon by this Tribunal in the interest of justice and equity. 10. The petitioner places reliance upon the decision of the Apex court in ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., reported in 305 ITR 227, in which case the Apex Court as well as the High Court of Gujarat, regarding a recall of an order, which was passed without appreciating a binding decision of the jurisdictional High Court, as being a mistake apparent on record to attract section 254(2) of the income Tax Act, 1961 which held as below:- 40. The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a mistake apparent from the record ? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a mistake apparent from the record which could be rectified under section 254(2). 47 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e speaking order instead of disposing the petition in the assessment order itself. That would not lead to the nullity of the order. Now the contention of the ld. AR is that this finding of the Tribunal is incorrect in view of the judgment of the jurisdictional High Court in the case of Deepak Extrusions (P.) Ltd . (supra) . In the case of Deepak Extrusions (P.) Ltd . (supra) , jurisdictional High Court quashed the reassessment order on the reason that the AO did not dispose of the objections prior to the assessment proceedings and he proceeded to pass the assessment order. This is evident from para 11 of that judgment. For clarity, we reproduce the same hereinbelow:- 11. If the facts of the present case are examined in the light of aforesaid legal position, it is an admitted position that the reasons for re-opening of the assessment by issuing of the notice under Section 148 of the Act were supplied to the appellant assessee. It is also admitted position that the appellant assessee after receipt of such reasons raised objections. It is also undisputed position that the Assessing Officer did not dispose of the objections prior to proceeding with the assessment further and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case. Such an exercise of power under section 254(2) of the Act amounts to review of its earlier order on merits but not 'rectification of mistake apparent from the record' and such review would certainly be beyond the scope of section 254(2) of the Income-tax Act. Therefore, we are of the considered view that by passing the impugned order dated 23-10-2002 on the said miscellaneous petition of the assessee-company, the Tribunal, in exercise of its power under section 254(2) of the Income-tax Act, whereunder it reviewed its earlier order dated 25-9-2000 and reversed its findings recorded under it. As such, the impugned order deserves to be set aside by allowing this appeal. Therefore, substantial question of law that has emerged in this appeal for our consideration and decision is answered in the 'negative' and in favour of the appellant-revenue. 16. Since we have observed that the judgment relied on by the ld. counsel for the assessee in the case of Deepak Extrusions (P.) Ltd . (supra) is not applicable to the facts of the assessee s case, the Supreme Court judgment in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., reported in 305 ITR 227 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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