TaxTMI 
TaxTMI 
2020 (10) TMI 1052
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.....01.2020 filed by the applicant before the Tribunal. Therefore, we refer below the said written submission. It is stated that Circular No. 3 of 2018 dated 11.07.2018 issued by Central Board of Direct Taxes (CBDT) has conveyed that the Department shall not file appeal or challenge in appeal, cases before ITAT where tax-effect does not exceed Rs. 20,00,000/- ; in para 4 of the said Circular it is clarified that in case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against; further, in para 13 it is clarified that the said Circular will apply to SLPs/Appeals/Cross-objections/References to be filed henceforth in SC/HCs/Tribunal and it shall also apply retrospectively to pending SLPs/Appeals/Cross-objections/References ; the Circular mandates that pending appeals below the specified tax limits in said Para 3 may be withdrawn/not pressed. It is also stated that vide Circular No. 17 of 2019 dated 08.08.2019 issued by CBDT, the monetary limit (tax-effect) for filing of appeal by the Department before the Tribunal is increased to Rs. 50,00,000/-. The Ld. counsel explains that this Circular was issued by the CBDT after the....
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....n the basis of the above submissions, the Ld. counsel submits that the omission to apply the provisions of CBDT Circular No. 17 of 2019 dated 08.08.2019 is clearly an error and thus has given rise to a mistake apparent from the record and such mistake be rectified. II 3. On the other hand, the Ld. Departmental Representative (DR) submits that in the instant case, the Tribunal having discussed the facts in detail has restored the matter to the file of the Assessing Officer (AO) for a de novo order after giving reasonable opportunity of being heard to the assessee. Thus the Ld. DR submits that there is no mistake apparent from record in the impugned order passed by the Tribunal. He submits that the Tribunal has no power to review its order in the garb of section 254(2) of the Act. III 4. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. Briefly stated, the facts of the case are that the assessee-company filed its return of income for the assessment year (AY) 2004-05 on 31.10.2004 declaring total income of Rs. 5,45,17,923/-. The AO completed the assessment u/s 143(3) on 23.11.2006 at a total ....
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....-. 6. Regrouping in AY 2003-04, in Block of Factory Building has resulted in decrease in depreciation of Rs. 49,795/-. 7. Earlier claim includes Depreciation on R & D block which has not been claimed in the revised return of Rs. 48,319/-. During the course of assessment proceedings, the AO asked the assessee to file full details in respect of the above excess claim of depreciation. But the assessee failed to furnish the relevant documents on the above. In a situation like the present one, the assessee had to file the relevant documents/evidence from which the AO could have drawn correct inference. The assessee failed to do so. As a logical corollary, the burden cannot be shifted to the Department. The burden of proof rests with the assessee." In view of the above factual scenario, we held at para 8 the following : "8. We are of the considered view that the Ld. CIT(A) has overlooked the above facts while passing the order dated 02.03.2017. A fortiori, he has not considered the fact that consequent to withdrawal of appeal before ITAT for AYs 2004-05 and AY 2005-06, the assessee re-worked its claim of depreciation for AY 2007-08 to AY 2014-15 bef....
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....actual situation fits in with the factual situation of the decision on which reliance is placed. Also it was held therein that circumstantial flexibility, e.g. one additional or different fact, may make a world of difference between conclusions in two cases. In the instant case, the Tribunal has passed the order dated 18.10.2019 u/s 254(1) of the Act. The assessee has filed an MA u/s 254(2) of the Act. As mentioned earlier in Dinesh Madhavlal Patel (supra) the issue was not the order passed by the Tribunal u/s 254(1) of the Act. Therefore, the instant case is distinguishable from the above order of the Tribunal. 4.3 The question arises whether the appeal heard by the Tribunal on 23.07.2019 and order pronounced on 18.10.2019 could be rectified in view of the CBDT Circular No. 17 of 2019 dated 08.08.2019, which was neither referred nor cited before the Bench? Admittedly, during the course of hearing before the Bench on 23.07.2019, neither the Ld. counsel nor the Ld. DR made any mention of Circular No. 17 of 2019 dated 08.08.2019. In such a situation, whether the order dated 18.10.2019 passed u/s 254(1) by the Tribunal could be rectified? 4.4 It is pertinent to mention her....
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....ent from the record. This is merely a power of amending its order. In the present case, in the first order, there is no mistake which is apparent from the record at all. The Tribunal was required to decide whether the commission payment of Rs. 54,000 was deductible under s. 37. After examining the circumstances, the Tribunal came to a conclusion that it was not so deductible. The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. The Tribunal has, patently, far exceeded its jurisdiction under s. 254(2) in redeciding the entire dispute which was before it, in this fashion, and the Tribunal has committed a gross and inexplicable error. Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment." A perusal of the facts in the instant case clearly indicate that the applicant has not pointed out any mistake apparent f....
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.... to be dealt with therein. As a preposition 'pending' means while awaiting. As an adjective 'pending' means remaining undecided. As a phrase 'pending appeal' refers to the time before an appeal is taken, as well as to the period during which an appeal is in progress. In the instant case, before the Tribunal, the hearing was concluded on 23.07.2019; the order was passed on 18.10.2019. There is no merit in the contentions of the Ld. counsel that since the appeal was pending till the date of pronouncement of the order, the Circular No. 17 of 2019 dated 18.08.2019 would apply. A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. Admittedly, during the course of hearing before the Bench on 23.07.2019, neither the Ld. counsel nor the Ld. DR made any mention of Circular No. 17 of 2019 dated 18.08.2019. As mentioned earlier, it is not a stand-alone Circular; it is to be read in conjunction with CBDT Circular No. 3 of 2018. Circular No. 3 of 2018 dated 11.07.2018 a....