TaxTMI 
TaxTMI 
2021 (1) TMI 244
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....ve normally declined to interfere with the refusal to exercise discretion under Article 226; but for the fact that there is a divergence of opinion as to whether an appeal would lie from the rejection of an application for rectification. 2. Sri.Joseph Markose, learned Senior Counsel appearing for the appellant, relies on Chem Amit v. Assistant Commissioner of Income-Tax [(2005) 272 ITR 397], Viswas Promoters (P) Ltd. v. Income-Tax Appellate Tribunal and Another [(2010) 323 ITR 114] and Madhav Marbles and Granites v. Income-Tax Appellate Tribunal and Another [(2014) 362 ITR 647] of different High Courts. The learned Standing Counsel for the Revenue relies on L. Sohanraj v. Deputy Commissioner of Income-Tax and Another [(2003) 260 ITR 147 (Kar) ], a judgment of the High Court of Karnataka, which was approved by a Division Bench of that Court. 3. On the question of rectification, it is pointed out by the learned Senior Counsel that the Tribunal has refused to admit the additional ground for reason of non-production of evidence by the appellant/assessee. The additional ground raised is only with respect to the satisfaction required to be recorded under Section 153C, which could have ....
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.... sub-sections. Sub-section (1) of Section 254 provides that the Appellate Tribunal may pass such order on an appeal as it thinks fit after giving both the parties to the appeal an opportunity of being heard. Sub-section (2) of Section 254 permits the Tribunal to verify any mistake apparent from the record and amend any order passed under sub-section (1) within four years from the date of the order. The expression employed in Section 260A that provides for an appeal to the High Court is materially different from the expression used in Section 256 that empowers the assessee and the Revenue to require the Appellate Tribunal to refer to the High Court any question of law. As already noticed above, in Section 256 the expression used is "require the Appellate Tribunal to refer to the High Court any question of law arising out of an order passed under Section 254". However, in Section 260A, the Legislature has not provided an appeal to the High Court from every order passed under Section 254 but has confined it to the order passed in appeal by the Appellate Tribunal. This is made clear by the use of the expression, "an appeal shall lie to the High Court from every order passed in appeal....
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.... no appeal filed under Section 260A of the IT Act. The party to a statutory appeal cannot be without remedy from an order prejudicial to that party and definitely the writ jurisdiction could be invoked. 8. Deeksha Suri has very distinct and complex facts and relates to an assessment year prior to the introduction of Section 260A. Therein, one Lalit Suri, his wife and two minor children had foreign remittances in their accounts, which were claimed as gifts under a Scheme framed under a Statute. Since the declaration necessitated by the notified scheme was not produced, the Assessing Officer treated the deposits as unexplained cash credit under Section 68 of the I.T. Act. Before the First Appellate Authority an application was filed to accept additional evidence, which was rejected. In second appeal before the Tribunal, again an application was filed for acceptance of additional evidence under Rule 29. A Bench of the Tribunal recorded its opinion that first the application under Rule 29 would have to be disposed of. Later, another Bench, which heard the matter, rejected the appeals, but the application under Rule 29 was not disposed of. The assessees filed an application without an....
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....tification under section 254(2); that too an order rejecting the prayer for rectification which cannot be an 'order passed in appeal' by the Tribunal. In fact, the concurrent judgment in Deeksha Suri read with the Section 260A; which permits only appeals from an order passed in an appeal by the Tribunal, leans more in favour of the assessee than the Department, on the facts discernible from the present case at least on the maintainability of this writ petition. 12. Now we come to the question whether the ground is one possible of consideration under Section 254(2) as a rectification; an obvious and patent error, the establishment of which would not require a long drawn process of reasoning on points, which could give rise to more than one opinion [T.S. Balram,ITO v. Volkart Bros. (1971) 82 ITR 50 (SC)]. The additional ground raised before the Tribunal is essentially as to whether the Assessing Officer ought to have noticed that it is mandatory to record the satisfaction in the case of assessment of a connected person under Section 153C of the I.T. Act . The ground has been framed so, as is seen from paragraph 3.2 of the original order of the Tribunal : "3.2 The Assessing....
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....itional ground is directly linked to the examination of the original records by the Tribunal, the Tribunal considered the additional ground and observed that the additional ground cannot be admitted in the absence of bringing on record the additional evidence pertains to recording satisfaction so as to issue notice u/s 153A of the I.T. Act. The Tribunal considered every material fact, for and against the assessee, with due care and given a finding that the additional ground could not be admitted at that stage." 15. In the above circumstances, we have to find that the original order of the Tribunal itself is one refusing to permit the assessee to raise the additional ground. We notice that the Tribunal itself has quoted the decision of the Hon'ble Supreme Court in National Thermal Power Corporation Ltd. v. CIT [229 ITR 383] and one of the grounds on which the Tribunal could exercise discretion to admit an additional ground has been extracted, which is as follows: "b) If the Tribunal is required to consider only the question of law arising from the facts which are on record in the assessment proceedings. Such question should be allowed to be raised." Having found that the rec....