TaxTMI 
TaxTMI 
2021 (7) TMI 403
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....ld. D.R., on the other hand, relies on the assessment order, as per which, notice under section 143(2) of the Act was issued on 28/8/2015 and was served on the assessee. 5. Heard. The Assessing Officer's record was summoned. It has been produced. Following is the notice issued on 28/8/2015 under section 143(2) of the Act [This is the notice referred to at page 1 of the assessment order]:- 6. As evident from the above notice, it was served not on the assessee, but on one Abdul Wahid. The Department has not been able to show this notice to have been served on either the assessee, or on his agent. Therefore, the assessee is correct in contending that no notice under section 143(2) of the Act was served on him. 7. In "Harsingar Gutkha (P.) Ltd. vs. CIT", 20 taxmann.com 713 (All.), it has been held by the Hon'ble jurisdictional High Court, as follows:- "A perusal of the provisions of Section 143 (2) of the Act shows that the service of the notice on the assessee within the period provided under the proviso is mandatory. In the absence of the notice being served within the stipulated period under section 143 (2) of the Act, the assessment proceeding comes to an end and is d....
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....essing Officer on 2.12.2015, proving the knowledge of the assessee about the assessment proceedings and also that the assessee had received the notices issued prior to 2.12.2015. (v) That the provisions of section 292BB of the Act have not been considered by the Tribunal. 6. Having considered these arguments of the Department, I find none of them to constitute any mistake apparent from the record. In the order dated 28.2.2019, the Tribunal noted the Department's reliance on the assessment order, wherein it was observed that the notice under section 143(2) of the Act was served on the assessee. As against such observation, reproducing the notice dated 28.8.2020, para 5, the Tribunal in para 6 of the order, held that "as evident from the above notice, it was served not on the assessee, but on one Abdul Wahid. The Department has not been able to show this notice to have been served on either the assessee, or on his agent. Therefore, the assessee is correct in contending that no notice under section 143(2) of the Act was served on him." 7. It is seen that at the time of arguments, none of the objections now sought to be raised, was taken by the Department. It is only by way of the ....
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....apparent on the face of the record". 10. In the case of 'CIT Vs. Suman Tea and Plywood Industries (P) Ltd.', 226 ITR 34 (Cal), their Lordships of the Hon'ble Calcutta High Court have expressed similar observations after holding that "under section 254(2) of the Income-tax Act, an order which has been passed by the Tribunal reaches finality the moment the same is passed and it cannot be touched thereafter. By section 254(2) of the Act, the Tribunal, however, has been authorized to rectify mistakes in its orders, which are apparent on the face of the record. The expression "mistake apparent on the record" means a mistake either clerical or grammatical or arithmetical or of like nature, which can be detected without there being any necessity to re-argue the matter or to re-appraise the facts as appearing from the records." In another case, 'CIT Vs. Golal Chand Agarwal', 202 ITR 14 (Cal), their Lordships of Hon'ble Calcutta High Court have also held that section 254(2) of the Income-tax Act, 1961 empowers the Tribunal to amend its order passed u/s 254(1) to rectify any mistake apparent from the record either suo motu or on an application. If in its order there is no mistake w....
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....uthorities should not act upon that statement without affording the assessee an opportunity to cross-examine the witness, but that is a matter not for rectification but it is a matter relating to the merits of the case as to whether the Tribunal has gone wrong in not considering the affidavit of a particular person and has acted upon the statement of the same person which was recorded by the ITO without being permitted to be cross examined by the assessee. This is not a matter in which the apparent error is involved but it is a matter more of merit and cannot be rectified within the scope of rectification. 14. The powers of the Tribunal while making a rectification were again examined by the Apex Court in the case of 'CIT Vs. Hero Cycles Pvt. Ltd.', 228 ITR 463 (SC) in which their Lordships have held that rectification can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from record. Rectification is not possible if the question is debatable. Moreover, a point which was not examined on facts or in law cannot be dealt with as mistake apparent from record. 15. In the case of 'ITO Vs. ITAT', 229 ITR 651 (Pat.), their Lord....