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2024 (9) TMI 1504
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.... Kind reference is drawn to letter F. NO. JCIT-ITAT/RPR/REQ/2023-24 dated 08.08.2023 on the above subject. A detailed report is submitted hereunder on the miscellaneous petition filed before the Hon'ble Court as called for by the Hon'ble I TAT Bench, Raipur. 2- In view of the observation made by the Hon'ble Court on the issue of non-issuance of notice u/s 153A in respect of a.y. 2017-18, a brief fact of the case is submitted. In the wake of Municipal Elections in the various parts of Vidharbha, the District Administration of various district had formed Static Surveillance (SST) to check the movement of cash liquor, etc. I The designated ITOs were appointed as the verification officer. The ITO-I, Gondia on the information of Resident Deputy District Collector, Gondia initiated an action under the provisions of section 132A of the income tax Act on 15.LL,2016. the action was concluded on 28.12.2016 seizing a cash of Rs. 20 lakhs from the possession of Shri Piyush Choubey. It is pertinent to mention here that the assessee, Shri Piyush Choubey could not offer any satisfactory explanation or supporting documents to prove the genuine source of cash found. Accor....
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....y." On going through the condition as laid down under sub-Rule (ii) of Rule 112F, it is found that the impugned search was conducted by virtue of Requisition made u/s 132A in the territorial area of an assembly or Parliamentary constituency during the Municipal Elections held in various parts of Vidharbha which in turn is covered under section 30 read with section 56 of the Representation of the People Act, 1951. The assessee failed to explain the source of such cash deposits amounting to Rs. seized by SST-FS team on 15.11.2016 from the possession of the assessee, Shri Piyush Kumar Choubey. 4. Further, as regards the CBDT's circular No. 10/2012 F.No. 282/22/2012/- IT(INV.VI) dtd 31.12.2012, which reads as under : In consequence of the powers conferred by clauses (64) and (66) of the Finance Act, 2012 the Central Government amended the Income Tax Rules, 1962, to insert a new Rule 112F after the existing Rule 112E, specifying the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the pre....
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....5). It is a testimony to the fact that a cash of Rs. 20 lakhs in old currency denomination was seized by SST-FS team of Gondia district administration on 15.11.2016. No satisfactory explanations as well as supporting documents which could prove the source of the cash found in the possession of the assessee were produced [Chapter 4 of the Appraisal Report]. Statement of the assessee, Shri Piyush Kumar Choubey was recorded l' under section 131 on 28/11/2016. The assessee is engaged in the business of trading in agricultural seeds. During the course of his statement, the assessee accepted that the cash seized by the SST-FS team of the district administration was not accounted for in his regular books of account and offered the amount as his additional income for the financial year 2016-17 relevant to the assessment year 2017-18 [Chapter 5 of the Appraisal Report]. The certificate of the Investigating officer has been communicated to the Principal Commissioner of Income Tax -1, Raipur and the jurisdictional Assessing Officer i.e., the Income Tax Officer-I, Rajnandgaon vide the confidential letter F.NO. dated 15.054.2017 having territorial jurisdiction over the case of the assessee.....
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.... contentions raised therein. Now the department has come up with lengthy submissions which are required to be looked into and deliberated upon, if such liberty by accepting the miscellaneous application of the department, wherein any apparent, obvious, patent mistake which is to be rectified could not be pointed out by the revenue, but the request is made to raise the issue again by way of recalling of the order of tribunal. Such action would necessitate to reconsider the entire matter again by reinstitution and rehearing of the appeal on merits. Such recalling is nothing but rehearing of the case again which is already decided, this process shall lead the issue to be dealt with following a long-drawn discussion. Such rehearing of the matter is not permissible under the provisions of section 254. Under such facts and circumstances, Ld. AR requested that the present MA of the department is not within the scope of provisions of section 254(2), thus, the same is not maintainable and accordingly, liable to be rejected. 5. We have considered the rival submissions, perused the material available on record and provisions of law along with CBDT's circular referred to by the department. ....
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....istake apparent from the record only. Therefore, the powers under section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2....
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....nder: "Held, that the Tribunal could not re adjudicate the matter under section 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 9. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163/159 Taxman 122 (Delhi), their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as under: "Under s. 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain that the power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rec....
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....n. That would amount to a review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake under s. 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be allowed to be done indirectly. 11. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163/159 Taxman 122 (Delhi), their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as under: "Under s. 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain that the power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. Rectification is a species of the larger concept of review. Although it is possible that the pre-requisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall and review of the order sought to be rectified." 12. Thus the scope and ambit of application u/s. 254....
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....asing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. 14. In view of the above discussion, we find no merit in the argument of the assessee's counsel. The Tribunal cannot review its own order and the remedy lies elsewhere. We do not find any mistake apparent on record which warrants rectification of Tribunal's order. 15. In the result, the MA filed by assessees is dismissed. 11. Regarding a mistake apparent from record there are landmark judgments wherein it has been explicitly explained and ruled that what should be categorized as a mistake apparent on record. For the sake of clarity, the three relevant judgments by Hon'ble Apex Court are extracted as under: ....
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....gn dealers visiting expenses. Rectification under s. 154 can only be made when glaring mistake of fact or law has been committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt as mistake apparent on the record. The dispute raised a mixed question of fact and law. The Tribunal was in error in upholding the assessee's claim for weighted deductions. There is no point in sending the matter to the High Court to deal with the question raised at this stage. We treat the question as referred to this Court and answer the question in the negative and in favour of the Revenue. There will be no order as to costs. The appeal is allowed. III. ACIT v. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC) DB 37. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error canno....
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....2017-18 I.T.ANo.53/RPR/2021 dated 11.10.2021 In this case, an appeal was filed by the assesse in ITA No.53/RPR/2021 for A.Y. 2017-18, which has been decided by the ITAT, RAIPUR BENCH, RAIPUR vide order dated 11/10/2021 in light of decision in CIT Vs Kalyan Solvent Extraction Ltd. (2005) 276 ITR 154(MP) and M/s Supersonic Technologies Pvt. Ltd. Vs PCIT ITA No.2269/Del/2017 order dated 10.12.2018., this M.A. is being filed in respect of this appellate order on the following Grounds: 1. Whether on the facts and in the circumstances of the case, the Hon'ble ITAT erred in quashing the appeal that the order should have been passed U/s 153A of the Act. 2. Whether on the facts and in the circumstances of the case, the Hon'ble ITAT erred in quashing the appeal as per the provisions of section 153A(b) of the Act, only assessment for the past 6 years be made u/s 153A and for the current year there is no need to assess U/s 153A. 3. On the facts and in the circumstances of the case, the Appeal No. ITA No. 53/RPR/202 linstituted deserves to be restored for fresh adjudication. PRAYER It is therefore, prayed that the The Assistant Registrar ITAT, Raipur....