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TMI Blog2024 (1) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities. On perusal of the assessment order, it is apparent that case of the assessee was taken up for scrutiny assessment u/s 143(3) on the basis of statement of Shri Virendra Pandey, the complainant which were recorded on oath u/s 131 of the IT Act, wherein certain transactions pertaining to assessee were unearthed and, therefore, the assessee was requested to present facts and evidences in support of his case in absence of which the Assessing Officer was at liberty to treat the amount of Rs. 45 Lakh as undisclosed Income of the assessee. In the later part of the assessment order, it has been emerged that the inspector of Income Tax ward 2(1) was deputed for the purpose of procuring the information from CBI, who after going through the documents including statements provided to him by CBI has furnished a detailed speaking report dated 15/12/2006. It is also noted by the Ld. AO that the assessee was not able to produce any evidence specially any documentary evidence in support of his claim that there is no force in the case in the CBI case and that the CBI as an investigation agency has not found anything against him. On perusal of such facts, it is evident that there was certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal challenging the legality and propriety of the order passed by the appellate authority. The learned Tribunal has dismissed the appeal vide order dated 17.01.2019 and observed in paragraph No. 5 as under :- "5. We have heard the rival submissions and perused the material available on record. On perusing the grounds of appeal raised by the Revenue, we find that Revenue is aggrieved by the order of Id. CIT(A) in respect of the relief given by him. As per the recent announcement of Central Board of Direct Taxes (CBDT) dated 11.07.2018 (Circular No. 3 of 2018), no Department appeals are to be filed against relief given by ld. CIT(A) before the Income Tax Appellate Tribunal unless the tax effect, excluding interest, exceeds Rs. 20 lakhs and it further states that the instructions will apply retrospectively to the pending appeals also. In the present case, since it is an undisputed fact that on the additions which are in dispute, the tax effect is less than Rs. 20 lakhs and in the absence of any material placed on record by the Revenue to demonstrate that the issue in the present appeal is covered by exceptions provided in para 10 of the aforesaid CBDT Circular, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue is incorrect facts as there is no equiry being initiated as alleged by the Revenue. Thus he would pray for quashing of the impugned order as bad in law and on facts. To substantiate his submission he would rely upon the judgment passed by the Hon'ble Supreme Court in case of Commissioner of Income Tax (IT- 4), Mumbai vs Reliance Telecom Limited {2021 SCC Online SC 1170) wherein Hon'ble Supreme Court in para No. 10 has held as under :- 10. Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has reheard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not Section 254(2) but a reference proceeding under Section 256. 7. Learned counsel for the Revenue opposes the submission and would submit that the circular No. 3/2018 dated 11th July, 2018 (Annexure P/5) was amended subsequently by the Central Government, Director of Central Board of Direct Tax vide circular dated 20th August, 2018 amending para 10 of the circular No. 3/2018 and following Clause 10(e) has been inserted :- 10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is not tax effect :- (e) Where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ED/DRI/SFIO/Directorate General of GST Intelligence (DGGI). 8. Thus, he would submit that assessment order for addition of additional undisclosed income of 45,00,000/- has been passed on the basis of information received from the CBI and the appeal filed by the Revenue has been dismissed on 17.01.2019, prior to passing of the judgment by the Tribunal, the amendment in the circular was already brought on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inserted which clearly provides that if addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ED/DRI/SFIO/Directorate General of G.S.T. Intelligence (DGGI). The adverse judgment relating to the said issues will be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect. The assessment order passed by the Assessing Authority dated 29.12.2006 clearly provides that the undisclosed income belonging to the assessee is as per the investigation of C.B.I. thus, the learned Tribunal has not committed any illegality or irregularity in allowing the Miscellaneous Application filed by the Revenue. 13. The order passed by the Income Tax Tribunal allowing the application is in accordance with the judgment passed by the Hon'ble Supreme Court in case of T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay vs M/s Vokart Brothers, Bombay {(1971) 2 SCC 526: 1971 (82) ITR 50 SC} as the mistake in the order is apparent in the face of the record, the Hon'ble Supreme Court has held in paragraph 5 as under:- 5.....A mistake apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s envisaged under Order XLVII Rule 1 of the Code of Civil Procedure stating: "The learned Judges of the High Court seem to have fallen into an error in equating the language and scope of s. 35 of the Act with that of O.47, r.1, Civil Procedure Code. The language of the two is different because according to s. 35 of the Act which provides for rectification of mistakes the power is given to the various income-tax authorities within four years from the date of any assessment passed by them to rectify any mistake "apparent from the record" and in the Civil Procedure Code the words are "an error apparent on the face of the record" and the two provisions do not mean the same thing." 16. Hon'ble Supreme Court in case of Assistant Commissioner Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange Ltd. {(2008) 14 SCC 171: 2008 (305) ITR 227 SC} has held in paragraph 26, 27, 28 and 30 as under:- 26. In view of settled legal position, if the submission of the learned counsel for the Revenue is correct that the Tribunal has exercised power of review, the order passed by the Tribunal must be set aside. But, if the Tribunal has merely rectified a mistake apparent from the record as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated". (emphasis supplied) 28. In Satyanarayan Laxminarayan Hegde & Ors. v. Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890, this Court referring to Batuk K. Vyas and Hari Vishnu Kamath stated as to what cannot be said to be an error apparent on the face of the record. The Court observed; "17....An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ". 30. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles {(1961) 41 ITR 732} that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 18. From the above stated factual and legal position it is quite vivid that the learned Tribunal has not committed any illegality in allowing the Miscellaneous Application vide its order dated 19.10.2023 as there is apparent on the face of the record which can very well be rectified by the Tribunal while exercising the power under Section 254(2) of the Income Tax Act. The judgment cited by the learned counsel for the petitioner in case of Reliance Telecom Ltd. (supra) the Hon'ble Supreme Court has held that the power conferred under Section 254(2) of the Act is akin to the Order 47 Rule 1 of the C.P.C. while considering the application under Section 254(2) the learned Tribunal is not required to revisit the earlier order and go into the details of merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. Thus, there is no merit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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