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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 ..... e provisions of section 254(2). Further, the prayer of the department to re-call, reinstitute and rehear the present matter would equate to review, which is absolutely not within the purview / powers of Tribunal conferred upon it by the provisions of section 254(2). Regarding the mandate of law which allows the tribunal to deal with miscellaneous application of the appellant, it is to be appreciated that the tribunal is having limited powers to rectify any apparent and glaring mistake on the face of records. The tribunal is not expected to re-hear the entire case on merits or to revisit its earlier order and to deal with the merits on the basis of arguments by the appellant. We reject the MA filed by the department, wherein a request has been made for rehearing / review of the earlier order of the tribunal in the garb of rectification of mistake by way of long drawn process of reasonings and arguments which is neither permissible nor allowed under the provisions of Act. Since the department has squarely failed in point out any mistake apparent from records which calls for rectification within the provisions of section 254(2) in the impugned order of tribunal, thus, in absence of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The impugned assessment order was treated to be erroneous as it was prejudicial to the interest of revenue. Accordingly, in exercise of powers vested under section 263 of the Act, the case was referred for review. 3- In compliance to the direction of the Hon'ble Member, ITAT Bench, Raipur, the applicability of the conditions as defined under the Circular No. 10/2021 (F.NO. 282/22/2012-IT(lnv.V)] dated 31.12.2012 and Rule 112F of the Income Tax Rules, 1962, vis- -vis the grounds of filing Miscellaneous Application, it is found that the provisions of Rule 112F read with the Sub-Rule (i) and (ii) are very much applicable in the assessee s case since the assessee belongs to 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 since the assesee is covered under the conditions as laid down under Sub-Rule (i) and (ii) to Rule 112F of the Income Tax Rules, 1962. 3.A- As regards Sub-Rule (i) to Rule 112F which reads as under : Whereas a result of a search under sub section (1) of section 132 of the Act or a requisition made under section 132A of the Act, a person is found to be in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted u/s 132 or requisition made u/s 132A and cash or other assets are seized during the election period, generally on a single warrant, and no evidence is available, or investigation required, for any assessment year other than the assessment year relevant to the previous year in which search is conducted or requisition is made. In such cases, the officer investigating the case, with the approval of the Director General of Income Tax, shall certify that - (i) the search is conducted under section 132 or the requisition is made under section 132A of the Act in the territorial area of an assembly or parliamentary constituency in respect of which a notification has been issued under section 30, read with section 56 of the Representation of the People Act, 1951; or (ii) the assets seized or requisitioned are connected in any manner to the ongoing election process in an assembly or parliamentary constituency; and (iii) no evidence is available or investigation is required for any assessment year other than the assessment year relevant to the previous year in which search is conducted or requisition is made. The certificate of the investigating officer shall be communicated to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Addl. Commissioner of Income Tax, Range-I, Bhilai for favor of kind information. Income Tax Officer -1, Rajnandgaon 3. On the basis of aforesaid submissions, Ld. Sr. DR placed the contention that the issue involved in the present case, which was deliberated upon by the tribunal in its order was that, whether the assessment in a case wherein requisition has been made u/s 132A of the Act, the jurisdiction to complete the assessment is to be governed by the provisions of section 153A of the Act? Before ITAT, It was also the claim of the assessee that provisions of assessment u/s 143(3) of the Act would not apply in the case where action has been taken either u/s 132 of the Act or u/s 132A of the Act. It is further assailed that that the tribunal has decided the issue expressing that the assessment has been wrongly framed with the aid of section 143(3) under the normal provisions of the Act. Ld. Sr. DR argued that, while passing the order there was an apparent error in the order of tribunal, wherein the applicability of conditions as defined under the CBDT s circular no. 10/2012 dated 31.12.2012 (supra) are not taken into consideration. Also, the provisions of Rule 112F introduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustive submission. We herein may observe that such lengthy contention which needs to be looked into and dealt with under a long-drawn deliberation and debate, therefore, such arguments does not suggest a mistake apparent from record that can be pointed out for rectification invoking the provisions of section 254(2). Further, the prayer of the department to re-call, reinstitute and rehear the present matter would equate to review, which is absolutely not within the purview / powers of Tribunal conferred upon it by the provisions of section 254(2). 6. Regarding the mandate of law which allows the tribunal to deal with miscellaneous application of the appellant, it is to be appreciated that the tribunal is having limited powers to rectify any apparent and glaring mistake on the face of records. The tribunal is not expected to re-hear the entire case on merits or to revisit its earlier order and to deal with the merits on the basis of arguments by the appellant. 7. In this respect, the principle of law laid down by Hon ble Apex Court in the case of Commissioner of Income Tax (IT-4), Mumbai v. Reliance Telecom Limited dated December 3, 2021, in Civil Appeal No. 7110 of 2021 reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Sri Madireddy Venkat Reddy v. Additional Commissioner of Income-tax, Range -11, Hyderabad reported in [2013] 38 taxmann.com 60 (Hyderabad - Trib.) has dealt in detail and has observed as under: 9. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under s. 254(1) is the effective order so far as the appeal is concerned. Any order passed under s. 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining unamended is the effective order for all practical purposes. An order under s. 254(2) does not have existence de hors the order under s. 254(1). Recalling of the order is not permissible under s. 254(2). Recalling of an order automatically necessitates rehearing and read-judication of the entire subject matter of appeal. The dispute no longer remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rectifying its mistake. The rule of precedent is an important aspect of legal certainty in the rule of law and that principle is not obliterated by s. 254(2) of the Act and non-consideration of precedent by the Tribunal causes a prejudice to the assessee. (c) Thirdly, power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. (d) Fourthly, under s. 254(2) an oversight of a fact cannot constitute an apparent mistake rectifiable under the section. (e) Fifthly, failure on the part of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgment. (f) Sixthly, even if on the basis of a wrong conclusion the Tribunal has not allowed a claim of the party it will not be a ground for moving an application under s. 254(2) of the Act. (g) Lastly, in the garb of an application for rectification under s. 254(2) the assessee cannot be permitted to reopen and reargue the whole matter as the same is beyond the scope of s. 254(2) of the IT Act. 13. Further, the order of the Tribunal is to be read in a whole and not in a piecemeal manner. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of a High Court under article 226 of the Constitution ruled that an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record see Sidhramappa Andannappa Manvi v. Commissioner of Income-tax [1952] 21 ITR 333 (Bom.). The power of the officers mentioned in section 154 of the Income-tax Act, 1961, to correct any mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an error apparent on the face of the record. In this case it is not necessary for us to spell out the distinction between the expressions error apparent on the face of the record and mistake apparent from the record . But suffice it to say that the Income-tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent. II. CIT vs. HERO CYCLES (P) LTD etc. (1997)228 ITR 463(SC) Civil Appeal No.7665/96 2. The High Court declined to call for a reference under s. 256(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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