TaxTMI 
TaxTMI 
2022 (8) TMI 1458
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....T(SS)A No. 206/ Ahd/2019 , M.A. Nos. 49 & 50/ Ahd/2021 In IT(SS)A Nos. 204 & 205/Ahd/2019 , M.A. Nos. 51 to 56/ Ahd/2021 In IT(SS)A Nos. 124 to 129/Ahd/2019 , M.A. Nos. 57 to 63/ Ahd/2019 In ITA No. 805/Ahd/2019 & in IT(SS)A Nos. 235 to 240/Ahd/2019 , M.A. Nos. 64 & 65/Ahd2021 in IT(SS)A Nos. 278 and 279/ Ahd/2019, M.A. Nos. 66 to 70/Ahd/ 2021 In IT(SS)A Nos. 280 to 284/Ahd/2019 , M.A. Nos. 71 to 73/Ahd/ 2021 In IT(SS)A Nos. 834 to 836 /Ahd/2019, M.A. Nos. 74 to 80/Ahd/ 2021 In IT(SS)A Nos. 228 to 234/Ahd/2019 , M.A. Nos. 81 & 82/ Ahd/2021 In IT(SS)A Nos. 109 and 110/ Ahd/2019 , M.A. Nos. 83 to 89/Ahd/ 2021 In IT(SS)A Nos. 102 to 108/Ahd/2019 , M.A. Nos. 98 to 105/Ahd/2021 In ITA No. 456/Ahd/2019 & IT(SS)A Nos. 94 to 104/Ahd/2019 , M.A. Nos. 90 to 97/Ahd/ 2021 In ITA No. 457/Ahd/2019 & In IT(SS)A Nos. 95 to 101/Ahd/2019 SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR AND SHRI WASEEM AHMED, ACCOUNTANT MEMEBR For the Revenue by : Shri Abhimanyu Singh Yadav, Sr.DR & Shri Atul Pandey Sr. D.R. For the Assessee by : Shri Tushar Hemani, Sr. Advocate & Shri Parimalsinh. B. Parmar, & Shri Vijay Govani, A.Rs. ORDER PER WASEEM AHMED, ACCOUTANT MEMBER: This bunch of 94 M.A's i....
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....ings u/s 147 of the Act based on which the reasons to believe were recorded. As such, the addition of Rs. 55,54,940/- made on account of transaction of personal nature includes an amount of Rs. 6,86,100/- based on reason to believe recorded for escapement of income. Thus, there is factual error committed by the Hon'ble bench of Tribunal. Therefore, the ld. DR before us prayed that the order needs to be recalled under the provisions of section 254(2) of the Act. 7. On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon'ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 8. We have duly considered the rival contentions and gone through the records carefully. The provision of sub....
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....t has laid down following proposition while concluding the judgment: "(a) The Tribunal has power to rectify a mistake apparent from the record on its own motion or on an application by a party under s. 254(2) of the Act; (b) An order on appeal would consist of an order made under s. 254(1) of the Act or it could be an order made under sub-s. (1) as amended by an order under sub-s. (2) of s. 254 of the Act; (c) The power of rectification is to be exercised to remove an error or correct a mistake and not for disturbing finality, the fundamental principle being that power of rectification is for justice and fair play; (d) That power of rectification can be exercised even if a mistake is committed by the Tribunal or even if a mistake has occurred at the instance of party to the appeal; (e) A mistake apparent from record should be self-evident, should not be a debatable issue, but this test might break down because judicial opinions differ and what is a mistake apparent from the record cannot be defined precisely and must be left to be determined judicially on the facts of each case; (f) Non-consideration of a judgment of the jurisdictional High Court would always const....
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....2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in ....
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....ase." 8.5 It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon'ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 8.6 In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore, we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 9. In the result all the M.A's in this segment filed by the Revenue are hereby dismissed. 10. Coming to the next set/ segment of M.A's having common issues are as under: S. No. M.A. Nos. In IT(SS) Nos. A.Y. In case of Assessee 1-7 M.A No. 13 to 19/Ahd/2021 IT(SS) No. 111 to 117/Ahd/2019 2009-10 to 2015-16 Deepak Budharmal Vaswani 8-14 M.A No. 21 to 27/Ahd/2021 IT(SS) No. 248 to 254/Ahd/2019 2009-10 to 2015-16 Deepak Budharmal Vaswani 15-21 M.A No. 29 & 35/Ahd/2021 IT(SS) NO 241 & 247/Ahd/2019 2009-10 to 2015-16 Ashok Sundardas Vaswani 22-28 M.A No. 99 & 105/Ahd/2021 IT(SS) NO 88 & 9....
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....month of May 2015 whereas the ITAT inadvertently has taken the same as March 2015 for calculating the Limitation period of passing the assessment order. iv. The locker No. 58, in the name of Shri Deepak Vaswani, maintained with bank of Maharashtra, SG Highway, wherefrom unaccounted jewellery of Rs. 2,48,400.00 was recovered. But the ITAT inadvertently has given a finding that such locker was not in the name of the assessee. 12.1 In view of the above, the learned DR before us contended that the order of the ITAT suffers from apparent mistakes and therefore, the same needs to be recalled within the provisions of section 254(2) of the Act. 12.2 On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon'ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts an....
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.... last date of panchnama drawn in March 2015 instead May 2015 which is in contrast to the decision of Hon'ble Supreme Court in case of VLS Finance Ltd(supra). The ITAT further erred in holding that the locker against which prohibitory order under section 132(2) was passed was not belonging to assessee. 15. Again it is noted that the ITAT has considered all the materials available on record and the ITAT also analyses the decision of Hon'ble SC in case of VLS Finance Ltd (supra) and after making reference to other judgment of Hon'ble High Court held that principles laid down by the Hon'ble SC are not applicable to the facts on the hand. Thus, in our considered view, there is no mistake apparent in the order of the ITAT. At the this juncture we again feel pertinent to refer the judgment of Hon'ble Supreme Court in case of CIT vs. Reliance Telecom Ltd (supra) where it was held that even if the order passed by the ITAT is erroneous on merit, the only remedy available to the aggrieved party is to prefer an appeal before Hon'ble High Court. The relevant observation of the Hon'ble Supreme Court (supra) extracted as under: "Even the observations that the merits might have been decided err....
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....mentioned MA Numbers falling under this segment. 21. The Revenue in these miscellaneous applications have pointed out certain errors in the order of the ITAT which are apparent from record as detailed below: It was submitted by the Revenue that the ITAT has erred in holding that the documents seized from the search premises were not belonging to the assessee. On the contrary, the satisfaction note clearly records that the seized documents show the payment against the purchase of the land. In fact the land was purchased by the assessee and the payment for the same was also made through the banking channel which can be verified from the bank statement of the assessee. In view of the above, the learned DR before us contended that the order of the ITAT suffers from apparent mistakes and therefore, the same needs to be recalled within the provisions of section 254(2) of the Act. 22. On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which ....
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....is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon'ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. (supra). 23.3 It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon'ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 23.4 In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 24. In the result, all the M.A's in this segment filed by the Revenue are hereby dismissed. 25. Coming to the next set of M.A's having common issue are as under:....
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.... before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon'ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 30. We have heard the rival contentions of both the parties and perused the materials available on record. It is settled position of law that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. In this regard, an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A's. 3....