TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 316
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....timation u/s. 143(1) was passed by the CPC. Thus Tribunal was factually incorrect in quashing the 143(1) proceedings for not following the first and second proviso to section 143(1)(a) of the Act and which is apparent mistake on record and requested to recall the order and decide the case on merits. 3. The above M.A. was listed for hearing on 23.12.2022. We do not found the so called communication dated 03.09.2019 sent by CPC to the assessee. When the same was pointed out to the knowledge of Ld. D.R., he sought time to produce the same. Thus the M.A. was adjourned to 20.01.2013. Again in the said hearings, the Ld. D.R. has not produced the so called communication dated 03.09.2019, hence the M.A. is adjourned to 03.02.2023. In the meanwhile, the Ld. D.R. vide its letter dated 23.01.2023 filed the communication dated 03.09.2019 by CPC proposing to make adjustments u/s. 143(1)(a) of the Act to the assessee, namely late payment of PF and ESIC contribution. Thus the ld. D.R. appearing for the Revenue stated the Revenue though could not produce the communication by CPC during the course of hearing, the same is now produced by the Revenue in this Miscellaneous Application and requested t....
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.... Rule 18(6) makes it clear that "notice dated 03.09.2019" is not forming "part of record of the Tribunal". Thus while passing the order, the Hon'ble Tribunal has not committed any mistake or error ad relied upon the following judgments: * ITO vs. Iraisaa Hotels P. Ltd. - (2018) 173 ITD 30 (Mum); * Paresh Dhanji Chedda vs. DCIT - (2016) 160 ITD 656 (Hyd.); * Sesa Goa Ltd. vs. ACIT - (2015) 55 taxmann.com 28 (Panaji). 4.3. The Ld. Counsel further submitted that the "scope of rectification of order u/s. 254(2) of the Act" is extremely limited and it does not extend to correcting the errors of law or "re-appreciating the factual findings". Thus, if the assessee or revenue is of the opinion that the order passed by the Hon'ble ITAT is erroneous, "either on facts or in law", the only remedy to the aggrieved party is to prefer "Tax Appeal" u/s. 260A of the Act before the Hon'ble High Court concerned and also placed on record, the following decisions: * CIT vs. Reliance Telecom Ltd. - 440ITR 1 (SC). * Vrundavan Ginning and Oil Mills vs. AR - 434 ITR 583 (Guj); 4.4. Thus the ld. Counsel in view of the factual position as well as the legal position submitted that the present Misc....
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.... order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case." 5.3. The Hon'ble Jurisdictional Gujarat High Court in the case of Vrundava Ginning and Oil Mill vs. Assistant Registrar reported in [2021] 126 taxmann.com 227 after considering elaborately the powers u/s. 254(2) which has examined by the Delhi High Court judgment in the case of CIT vs. ITAT held as follows: "......13. The contours of the jurisdiction under section 254 (2) were examined by the Delhi High Court in CIT v Income-tax Appellate Tribunal [2005] 204 CTR 349. It was held that: "6. It is evident from the above that the power available to the Tribunal is not in the nature of a review as is understood in legal parlance. The power is limited to correction of mistakes apparent from the record What is significant is that the section envisages amendment of the original order of the Tribunal....
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....ground the order passed by the Tribunal is indefensible." ............................... 19. Having regard to the materials on record, we find it difficult to take the view that the ground No. 3, which the writ applicant is talking about, has not been dealt with at all by the Appellate Tribunal. The Appellate Tribunal, in its own way, has discussed the said issue and recorded a particular finding. If the writ applicant is dissatisfied, then it is always open for him to prefer an appeal under section 260A of the Act before this High Court and in the course of the appeal, it can be pointed out to the Court as regards the ground No. 3 and if the Court is convinced, then it may remit the matter to the Tribunal for fresh consideration of the ground No. 3 which the writ applicant is talking about. The power to rectify an order under section 254(2) of the Act is extremely limited, as observed by the Delhi High Court in the case of CIT v. Maruti Insurance Distribution Services Ltd. [2012] 26 taxmann.com 68/[2013] 212 Taxman 123. It does not extend to correcting the error of law or re-appreciating the factual findings. Those properly fall within the appellate review of an order of Cour....
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....o decide whether the Assessee is eligible for deduction u/s 10B, From the submission of the Revenue it is apparent that the material and information on which the Revenue relied by putting up the miscellaneous application has been procured subsequent to the passing of the order not only by the Hon'ble Tribunal but also after dismissing the various questions by the Hon'ble High Court vide its order dt. 23.9.2013. Rule 18(6) of the Appellate Tribunal Rules explicitly mentions that only the documents that are referred to and relied upon by the parties during the course of the argument shall alone be treated to be part of the record of the Tribunal. ........................... 13. Sec. 254(2) empowers the Tribunal to rectify mistake which is apparent on record within 4 years from the date of the order suo moto or on application by the Assessee or Revenue. The provisions of Sec. 254(2) can not be construed in a manner that produces an anomaly or otherwise produces irrational or illogical result. The Id. DR even though vehemently argued, but could not bring to our knowledge that this Tribunal failed to consider the case law as cited before the Tribunal or the Tribunal has not ....