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TMI Blog2024 (9) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... T-ITAT/RPR/REQ/2023-24 dated 08.08.2023 on the above subject. A detailed report is submitted hereunder on the miscellaneous petition filed before the Hon'ble Court as called for by the Hon'ble I TAT Bench, Raipur. 2- In view of the observation made by the Hon'ble Court on the issue of non-issuance of notice u/s 153A in respect of a.y. 2017-18, a brief fact of the case is submitted. In the wake of Municipal Elections in the various parts of Vidharbha, the District Administration of various district had formed Static Surveillance (SST) to check the movement of cash liquor, etc. I The designated ITOs were appointed as the verification officer. The ITO-I, Gondia on the information of Resident Deputy District Collector, Gondia initiated an action under the provisions of section 132A of the income tax Act on 15.LL,2016. the action was concluded on 28.12.2016 seizing a cash of Rs. 20 lakhs from the possession of Shri Piyush Choubey. It is pertinent to mention here that the assessee, Shri Piyush Choubey could not offer any satisfactory explanation or supporting documents to prove the genuine source of cash found. Accordingly, the cash was seized after drawing a panchnama. Lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the impugned search was conducted by virtue of Requisition made u/s 132A in the territorial area of an assembly or Parliamentary constituency during the Municipal Elections held in various parts of Vidharbha which in turn is covered under section 30 read with section 56 of the Representation of the People Act, 1951. The assessee failed to explain the source of such cash deposits amounting to Rs. seized by SST-FS team on 15.11.2016 from the possession of the assessee, Shri Piyush Kumar Choubey. 4. Further, as regards the CBDT's circular No. 10/2012 F.No. 282/22/2012/- IT(INV.VI) dtd 31.12.2012, which reads as under : In consequence of the powers conferred by clauses (64) and (66) of the Finance Act, 2012 the Central Government amended the Income Tax Rules, 1962, to insert a new Rule 112F after the existing Rule 112E, specifying the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made. The aforesaid amendment was introduced with a vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. No satisfactory explanations as well as supporting documents which could prove the source of the cash found in the possession of the assessee were produced [Chapter 4 of the Appraisal Report]. Statement of the assessee, Shri Piyush Kumar Choubey was recorded l' under section 131 on 28/11/2016. The assessee is engaged in the business of trading in agricultural seeds. During the course of his statement, the assessee accepted that the cash seized by the SST-FS team of the district administration was not accounted for in his regular books of account and offered the amount as his additional income for the financial year 2016-17 relevant to the assessment year 2017-18 [Chapter 5 of the Appraisal Report]. The certificate of the Investigating officer has been communicated to the Principal Commissioner of Income Tax -1, Raipur and the jurisdictional Assessing Officer i.e., the Income Tax Officer-I, Rajnandgaon vide the confidential letter F.NO. dated 15.054.2017 having territorial jurisdiction over the case of the assessee. Encl: (i) Appraisal Report (ii) Confidential Letter of DDIT (Inv)II, Nagpur (iii) Other relevant papers. Yours faithfully, ( Sujit Bhattacharjee ) Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, wherein any apparent, obvious, patent mistake which is to be rectified could not be pointed out by the revenue, but the request is made to raise the issue again by way of recalling of the order of tribunal. Such action would necessitate to reconsider the entire matter again by reinstitution and rehearing of the appeal on merits. Such recalling is nothing but rehearing of the case again which is already decided, this process shall lead the issue to be dealt with following a long-drawn discussion. Such rehearing of the matter is not permissible under the provisions of section 254. Under such facts and circumstances, Ld. AR requested that the present MA of the department is not within the scope of provisions of section 254(2), thus, the same is not maintainable and accordingly, liable to be rejected. 5. We have considered the rival submissions, perused the material available on record and provisions of law along with CBDT's circular referred to by the department. Admittedly, in the present case, on perusal of the order of tribunal it is discernible that the tribunal had considered the submissions of both the parties and have expressed a positive view on the legal contention rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 9. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163/159 Taxman 122 (Delhi), their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as under: "Under s. 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain that the power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. Rectification is a species of the larger concept of review. Although it is possible that the pre-requisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly could not be allowed to be done indirectly. 11. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163/159 Taxman 122 (Delhi), their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as under: "Under s. 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain that the power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. Rectification is a species of the larger concept of review. Although it is possible that the pre-requisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall and review of the order sought to be rectified." 12. Thus the scope and ambit of application u/s. 254(2) is as follows: "(a) Firstly, the scope and ambit of application of s. 254(2) of IT Act is restricted to rectification of the mistakes apparent from the record. (b) Secondly, that no party appearing before the Tribunal should suffer on account of any mistake committed by the Tribunal and if the prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts, as if that were a magic formula; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. 14. In view of the above discussion, we find no merit in the argument of the assessee's counsel. The Tribunal cannot review its own order and the remedy lies elsewhere. We do not find any mistake apparent on record which warrants rectification of Tribunal's order. 15. In the result, the MA filed by assessees is dismissed. 11. Regarding a mistake apparent from record there are landmark judgments wherein it has been explicitly explained and ruled that what should be categorized as a mistake apparent on record. For the sake of clarity, the three relevant judgments by Hon'ble Apex Court are extracted as under: I. T.S. Balaram, ITO v. Volkart Brothers*[1971] 82 ITR 50 (SC)DB "A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal was in error in upholding the assessee's claim for weighted deductions. There is no point in sending the matter to the High Court to deal with the question raised at this stage. We treat the question as referred to this Court and answer the question in the negative and in favour of the Revenue. There will be no order as to costs. The appeal is allowed. III. ACIT v. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC) DB 37. 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 apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need a long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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