2022 (12) TMI 1007 - AT - Income Tax

Tribunal recalls order, cites legal issues, allows rehearing under Income Tax Act

The Tribunal recalled the common order for assessment years 2010-11 and 2011-12, specifically addressing the non-issuance of notice under section 143(2) ... Rectification of mistake u/s 254 - mistake apparent from record - non-consideration of the decision of jurisdictional High Court or of Supreme Court - submitted that ground raised by the assessee challenging the non-issuance of notice under 143(2) was not adjudicated by the coordinate bench of the Tribunal - HELD THAT:- We find that the Hon’ble Supreme Court in NTPC [1996 (12) TMI 7 - SUPREME COURT] held that legal issue can be raised for the first time before the Tribunal, so long as the relevant facts are on record in the assessment proceedings for that issue. It is evident that the aforesaid decision of the Hon’ble Supreme Court was not taken into consideration by the coordinate bench while rendering decision in respect of ground No. 1 raised by the assessee. In ACIT vs Saurashtra Kutch Stock Exchange Ltd.[2008 (9) TMI 11 - SUPREME COURT] held that non-consideration of the decision of jurisdictional High Court or of Supreme Court can be said to be a ‘mistake apparent from record’, which could be rectified under section 254(2) - Therefore, respectfully following the aforesaid decision in Saurashtra Kutch Stock Exchange Ltd. (supra), we deem it appropriate to recall the findings rendered by the coordinate bench of the Tribunal, in respect of ground No. 1, in the exercise of the power conferred under section 254(2) of the Act. Miscellaneous Applications by the assessee are allowed. Issues:Recall of common order under section 254(1) for assessment years 2010-11 and 2011-12 regarding non-issuance of notice under section 143(2) of the Income Tax Act, 1961.Analysis:The assessee filed Miscellaneous Applications seeking the recall of the common order passed by the Tribunal for assessment years 2010-11 and 2011-12, specifically challenging the non-adjudication of ground No. 1 related to the non-issuance of notice under section 143(2) of the Income Tax Act, 1961. The learned Authorised Representative argued that the legal issue could be raised at any stage, citing the NTPC case. However, the coordinate bench had not considered this argument, leading to a mistake apparent from the record. The Departmental Representative opposed the recall of the order concerning ground No. 1.Upon reviewing the submissions and the Tribunal's findings in the common order, it was noted that the assessee had not raised the specific ground regarding the non-issuance of notice under section 143(2) before the first appellate authority. The Tribunal observed that the assessee did not make any substantive argument on the issue, as mentioned in the appellate order. Considering the factual position and the lack of specific grounds raised earlier, the Tribunal dismissed ground No. 1 in both appeals. However, the Hon'ble Supreme Court's decision in NTPC emphasized that legal issues can be raised before the Tribunal if relevant facts are on record, a point not considered by the coordinate bench. Citing the ACIT vs. Saurashtra Kutch Stock Exchange Ltd. case, the Tribunal acknowledged that non-consideration of decisions by higher courts could be a mistake apparent from the record, allowing for rectification under section 254(2) of the Act.In light of the above, the Tribunal decided to recall the findings related to ground No. 1 for assessment years 2010-11 and 2011-12, exercising the power conferred under section 254(2) of the Act. The appeals were directed to be fixed for hearing on this specific ground after due notice to the parties. Consequently, the Miscellaneous Applications by the assessee were allowed, and the order was pronounced in open court on 14/12/2022.