2021 (12) TMI 1347 - AT - Income Tax

Tribunal grants misc. app, orders fresh hearing for appeal in the interest of justice. Decision via video 21.12.2021.

Girdhar Gopal Rastogi Versus Income Tax Officer, Ward-III (1), Mirzapur, U.P.

Girdhar Gopal Rastogi Versus Income Tax Officer, Ward-III (1), Mirzapur, U.P. - TMI Issues Involved:Rectification of mistake/recalling of order regarding validity of selecting case under compulsory scrutiny based on incomplete survey dated 06.01.2021 without proper authorization and criteria.Analysis:1. The assessee filed a misc. application seeking rectification of a mistake/recalling of the order passed by the Tribunal. The additional ground raised challenged the validity of selecting the case under compulsory scrutiny based on an incomplete survey. The AR argued that the Assessing Officer was not authorized to carry out the survey under section 133A, as per the authorization letter filed by the assessee.2. The learned DR contended that there was no apparent mistake in the Tribunal's order, as it was decided on merits. The DR argued that the Tribunal cannot review its own order passed on merits. Additionally, the DR stated that the assessee cannot challenge the jurisdiction of the Assessing Officer post-assessment if no objection was raised during the assessment proceedings as per the provisions of the Income Tax Act.3. The Tribunal considered the statement recorded under section 131 on 27.01.2012 as part of the survey proceedings, presuming the Assessing Officer conducted the survey. However, it was revealed that the Assessing Officer was not authorized for the survey. The Tribunal failed to consider the CBDT instructions for selecting cases under compulsory scrutiny without prior approval. The Tribunal recalled the order to decide the appeal afresh due to the mistake in presuming incorrect facts.4. The Tribunal's scope under section 254(2) is limited to rectifying a mistake apparent from the record. Failure to consider crucial facts or contentions raised during the hearing constitutes a mistake apparent from the record. The Tribunal's decision to recall the order was based on the importance of the unconsidered facts that could influence the decision. The DR's reliance on jurisdiction issues was deemed irrelevant to the validity of initiating compulsory scrutiny.5. The Tribunal allowed the misc. application, recalling the order for fresh adjudication in the interest of justice. The appeal was scheduled for a fresh hearing on a specified date. The decision was pronounced in the open court through video conferencing on 21.12.2021.