Income Tax Appellate Tribunal - Jaipur
Naveen Grah Nirman Sahakari Samiti vs Competent Authority on 14 November, 2003
Equivalent citations: (2005)92TTJ(JP)151
ORDER
Satish Chandra, J.M.
1. This Miscellaneous Application dt. 21st May, 2003 is filed by the assessee under Section 269G(5) of the IT Act for amending the Tribunal order under Section 269G(4) of the IT Act, dt. 25th April, 2003. The assessee has modified (sic) it vide its letter dt. 12th Sept., 2003 in the form of tabular chart where certain mistakes, were pointed out by mentioning that these mistakes are apparent from record.
2. To start the argument, the learned Authorised Representative submitted that Section 269G(5) is synonymous to Section 254(2) of the IT Act which relates to the rectification of Tribunal's order, by way of M.A.
3. As the preface, the learned Authorised Representative Shri N.M. Ranka submitted that in the instant case, assessee had submitted a paper book running to 387 pages on 10th May, 2003. An application dt. 4th March, 2003 under Rule 29 r/w Rule 18 of the ITAT Rules was also submitted on 17th March, 2003 along with an additional paper book running into 197 pages. Further, on 21st March, 2003, 8 pages were submitted along with the copy of order of Hon'ble Rajasthan High Court dt. 27th Jan., 2003. Further, he mentioned in his M.A. in para 1.2 that along with written submission of 8 pages on 1st April, 2003, 3 pages of case laws were also submitted. The applicant also submitted rejoinder dt. 2nd April, 2003, running into 7 pages where the copy of letter dt. 25th Nov., 2002 and notice of demand dt. 25th Feb., 2003 were annexed. He further submitted that the applicant also submitted other details on 3rd April, 2003, running into 37 pages. The learned Authorised Representative expressed his grievance by submitting that the Tribunal vide its order dt. 25th April, 2003 has not considered the entire material as mentioned above. By giving the different instances mentioned in its miscellaneous application as well as in the tabular chart, he submitted that the Tribunal has not specifically considered the following papers from the assessee's paper book:
Pages 156-166, 123, 4, 5 (additional) 172-184 (Affidavit), rejoinder dt. 2nd April, 2003 para 3.4 on p. 14 along with affidavit, etc.
4. The learned Authorised Representative further submitted that his submissions raised and arguments advanced, written submissions coupled with the paper book were not considered, by the Tribunal. Materials supplied by the applicant remained unconsidered, findings were not given, no analytical discussion was made as per the details given in the M.A.s'. He repeatedly submitted that substantial arguments and supporting decisions deserved to be recorded, considered and observations be made thereon. But the Tribunal has failed to do so.
5. Further, Shri N.M. Ranka, senior advocate, has drawn our attention to pp. 13 and 14 of the Tribunal's order where a chart of events was given. He submitted that the said chart was never provided to the applicant and it was the violation of natural justice as per the ratio laid down in the case of Rishab Textiles v. CIT (2003) 260 ITR 424 (Raj) where it was observed that the Tribunal was not justified/considering the material without giving an opportunity to the assessee. He further relied on the similar ratio laid down in the case of--
(1) CIT v. S.S. Gupta (2002) 257 ITR 440 (Raj) (2) Rahul K. Bajaj v. ITO (1999) 64 TTJ (Nag)(SB) 200 : (1999) 69 ITD 1 (Nag)(SB) Further, he submitted that the serious objections, arguments have been ignored/omitted. It needs to be incorporated and considered. To support his arguments, he relied on the following cases :
(i) Laxmi Electronic Corporation Ltd. v. CIT (1991) 188 ITR 398 (All)
(ii) CIT v. ITAT and Anr. (1988) 172 ITR 158 (MP)
(iii) Blue Star Engg. Co. (Bombay) (P) Ltd. v. CIT (1969) 73 ITR 283 (Bom)
(iv) ITO v. S.B. Singar Singh & Sons and Anr. (1970) 75 ITR 646 (All) The learned Authorised Representative further elaborated the legal position pertaining to the duty of the Tribunal. He submitted that the Tribunal was not justified in ignoring the material placed before it. Being an ultimate fact finding authority, facts will have to be properly considered and appreciated in a manner prescribed by law as per the ratio laid down by Hon'ble Karnataka High Court in the case of Asstt. CIT v. Gautam Investment (P) Ltd. (2001) 250 ITR 324 (Kar). He quoted the ratio laid down by Hon'ble Madras High Court in the case of Vinjani Centre v. Dy. CIT (2002) 258 ITR 191 (Mad), where it was mentioned that it is the duty of the Tribunal to consider all the facts and give reason for its decision. In the instant case, the Tribunal was in agreement with the CIT, but has not given any reasons for remanding the matter. He also relied on the following cases :
(i) K. Assan Koya & Sons (1988) 172 ITR 677 (Ker)
(ii) P.J. Philip v. State of Kerala (1993) 201 ITR 591 (Ker) Further, he submitted that in the case of Deeksha Suri v. ITAT, the Hon'ble Supreme Court observed that the Tribunal was required to dispose of the pending application under the ITAT Rules before hearing the appeal on merits. High Court was not justified in asking (sic-holding) that Section 254(2) was not attracted. So, the order of the Tribunal was set aside and remitted to Tribunal to dispose of the application on merits and thereafter proceed to dispose of the appeal on merits.
Lastly, he submitted that in the interest of justice, the paras mentioned in the miscellaneous application tabular chart deserve to be incorporated. For this purpose the impugned Tribunal's order may kindly be amended/recalled.
6. On the other hand, the learned Departmental Representative supported the order of the Tribunal. By reading the written submissions, he mentioned that as per Rule 34A, the miscellaneous application must be concise and clearly state the mistake apparent from the record of which the rectification is sought. But in the instant case, the applicant has filed miscellaneous application consisting of 20 pages on 21st May, 2003 which was revised in the tabular form running into 8 pages on 12th Sept., 2003. Thus, the applicant tried to create confusion. The applicant has not pointed out any mistake apparent from the record. All the submissions are that a particular document or a particular argument was not incorporated or properly considered by the Tribunal.
7. The learned Departmental Representative further submitted that the chart given at pp. 13 to 16 of the Tribunal's order was discussed at the time of hearing as appears from the Tribunal's order at para 23, where it was specifically mentioned that "the special counsel for the Department tried to explain every event pertaining to the acquisition proceedings under Section 269D(1) chronologically which may be summed up as under". Para 24 of the Tribunal's order opened with the words--
"After it, learned special counsel (hereinafter may be referred as learned Departmental Representative) tried to answer the submissions which were made on behalf of the appellant."
He further submitted that the chart is nothing but merely the chronological details pertaining to the acquisition proceedings under Section 269D(1). In this regard, he submitted that the affidavit filed on behalf of the applicant is not true for which necessary action may be taken. He also submitted that there is no violation of the natural justice as wrongly alleged by learned Authorised Representative.
8. The learned Departmental Representative further submitted that the Tribunal has already discussed all the aspects in brief from the bulky material and given the definite finding. For this purpose, he has drawn our attention to paras 61 and 63 of the Tribunal's order where the definite findings were given pertaining to the agreement dt. 2nd Oct., 1974 which was not genuine and is a backdated document. He also submitted that Tribunal's order is not an ex parte order. To support his contention, he relied on the ratio laid down in the following cases as mentioned in his written submissions:
(1) CIT v. Bhagwati Developers (P) Ltd. (2003) 261 ITR 658 (Cal) (2) Trikamlal Maneklal, In re (1958) 33 ITR 725 (Bom) (3) T.S. Balaram, ITO v. Volkart Brothers (1971) 82 ITR 50 (SC) (4) J.N. Shani v. ITAT (2002) 257 ITR 16 (Del) (5) ITO v. ITAT (1987) 168 ITR 809 (Raj) (6) Deeksha Suri v. ITAT (1998) 232 ITR 395 (Del) (7) Dr. Rajah Sir M.A. Muthiah Chettiar (Decd.) v. CIT (1999) 238 ITR 505 (Mad).
9. Lastly, the learned Departmental Representative justified the order of the Tribunal by submitting that there is no mistake apparent from the record.
10. To counter it, the learned Authorised Representative submitted that the case laws cited by the learned Departmental Representative were either overruled or have no relevance with the facts of the case. Similar views were expressed by the learned Departmental Representative about the case laws cited by learned Authorised Representative.
11. We heard both the parties at length and gone through the material available on record. First of all, we would like to mention that the Tribunal has very limited power under Section 254(2) which is synonymous with Section 269G(4). We are all aware that the scope under this section is limited because there is no power with the Tribunal to review its own order.
12. The Hon'ble Supreme Court observed in the case of P.N. Thakershi v. Pradyumansinghji AIR 1970 SC 1273 that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. In the IT Act, there is no such provision. However, it is settled rule that a judicial Tribunal can recall and quash its own order when it is shown that it was obtained by palpable mistake and alike [(1960) 38 ITR 10-sic-1]. It was observed in Shew Paper Exchange v. ITO (1974) 3 ITR 186 (Cal) that the inherent power to rectify a wrong committed by itself, by a Court or a Tribunal, is not, really speaking, a power to review. The two powers operate in different fields and are different in essential quality or nature. The primary aim of legal policy is to do justice. It must be assumed that Parliament does not intend to do injustice or allow the wrong thing to continue contrary to law or public policy.
13. The Allahabad High Court in CIT v. U.P. Shoe Industries (1999) 235 ITR 663 (All) observed that the Tribunal has jurisdiction to rectify the mistake by recalling its order. It is a well settled principle that every Court or Tribunal always has an inherent jurisdiction to rectify a wrong or correct an error committed by itself-ITO v. S.B. Singhar Singh & Sons and Anr. (1976) 105 ITR 570 (SC), ITO v. S.B. Singhar Singh & Sons and Anr. (1979) 75 ITR 646 (All). Section 254(2) of the IT Act, specifically empowers the Tribunal to rectify any apparent mistake in an order passed by it. Even without such specific provisions, the Tribunal has inherent power to set aside an order deciding an appeal-Shri Bhagwan Radha Kishan v. CIT (1952) 22 ITR 104 (All).
14. Now, it is clear that the Tribunal has power to correct any mistake apparent on record by way of recalling or by modification of its order. Reliance can be placed on the decision of the Calcutta High Court in the case of ITO v. National Rubber Manufacturers (1975) 98 ITR 377 (Cal). Further, what results follow after making the rectification of the mistake of fact or law, the Tribunal should not or can't be influenced by the conclusion at the time of ascertaining the mistake. If there is a mistake, it remains as a mistake and which needs to be corrected and decision is to be arrived at on the basis of corrected facts and it may completely reverse the findings or support the findings completely or partially of the earlier order.
15. Now what is mistake. "Mistake" is an ordinary word but in taxation law it has a special signification. It is not an arithmetical or clerical error that comes within its purview. It comprehends errors which are discerned after the judicious probe into the record from which it is supposed to emanate. It is difficult to axiomatise and lay down dicta for the discovery of a mistake from official records. It is inherently indefinite in scope and mostly subjective, the dividing line being thin and undiscernible. In the ultimate analysis, a well equipped and trained judicial mind will reach after scrutinising the record on a conclusion which will govern his finding whether it is a mistake or not.
16. The Madras High Court in T.S. Rajan v. CED (1968) 69 ITR 342 (Mad) observed:
"for a rectification of an error which is said to be apparent from the record, the mere complexity of the problem or that genuine argument is necessary to discover the same may not by themselves be sufficient to oust the jurisdiction of the Tribunal to rectify such a mistake. If it could be discerned with some precision after a fair probe into the assessment records and a reasonable and probable conclusion can be arrived at and the Courts conscience has been shaken in that there appears an error on the fact of the record which has to be certainly corrected, then the jurisdiction of the Tribunal vesting it with power to rectify such mistake arises. The essence of rectification is to bring the order which was expressed and intended to be in pursuance of the existing law into harmony with such law. Once the Tribunal or authority is able to predicate with certainty as to in what manner and how the order suffers by a mistake apparent from the record supported by evidence, then it, would enable them to bring the order complained against or impugned against in conformity with the law and the facts in the record."
17. With these observations, let us be back to the case in hand where the Tribunal in its order para 5 started with the words "From the bulky material, brief history pertaining to this piece of land appears......". In the instant case, there was bulky material consisting of 2 (two) paper books submitted by the assessee along with other documents as mentioned in the beginning of this document. Similarly, the learned Departmental Representative also filed equally bulky material before the Tribunal. The Tribunal did its best to extract the relevant facts from the bulky materials. It is neither possible nor feasible that each and every argument will have to be reproduced in the Tribunal's order. Similarly each and every document cannot be referred in the Tribunal's order. There is no provision for the video recording of the proceedings in the Court. So, it is not possible to mention each and every oral submission of the parties. It is a common practice that the aggrieved party always charged that his arguments, submissions, written note, case laws were not considered properly.
18. It may be mentioned that, even if there is oversight of a fact, it cannot constitute an apparent mistake as per the ratio laid down by Hon'ble Calcutta High Court in the case of CIT v. Gokul Chand Agarwal (1993) 202 ITR 14 (Cal). This principle find support from the well known maxim minims non curat lex, which means that law takes no account of very trifling matters.
19. The Hon'ble Supreme Court in the case of CIT v. Karam Chand Thapar & Bros. (P) Ltd. (1989) 176 ITR 535 (SC) observed as under :
"It is equally well settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the Court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusion arrived at by the Tribunal is 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."
20. It may also be noticed that Rule 18 of the ITAT Rules was amended w.e.f. 2003 by inserting Clause (6) which runs as under:
"(6) Documents that are referred to and relied upon by the parties during the course of arguments shall alone be treated as part of the record of the Tribunal."
It means that the documents which were not relied or referred, cannot form part of the record and Tribunal may ignore the same.
21. There is another allegation of the applicant that the chart mentioned by the Tribunal in its order at pp. 13 to 16 was not provided to the applicant and was taken on a later date after hearing in violation of the principles of natural justice. In this regard, we agree with the submission made by the learned Departmental Representative that the said chart was duly given at the time of hearing as appears from para 23 of the Tribunal's order where it was mentioned that "the learned special counsel appointed by the Department...... tried to explain every event pertaining to the acquisition proceedings under Section 269D(1) chronologically which may be summed up as under." The said chart is the chronological details of events pertaining to the acquisition proceedings. So this allegation/submission is not tenable and there is no mistake in this regard which can be called apparent from the record as alleged by learned Authorised Representative.
22. In the light of above discussion and by considering the totality of facts and circumstances of the case, we are of the view that, by not incorporating the arguments, submissions, reference to the paper books, etc. as alleged by the learned Authorised Representative, there was any mistake apparent from the record. So, we are of the view that there is no mistake apparent from the record as alleged by learned Authorised Representative.
23. However, after hearing both the parties, we delete/substitute the following words from the Tribunal's order:
(1) In para 3 line 3, the sentence "the appellant samittee is assessed at Jaipur". The word "assessed" is substituted by the word "based". Thus this sentence will be read as "the appellant samittee is based at Jaipur".
(2) In para 5 line 2 the word "late" before Shri Gaj Singhji is deleted.
Except the abovementioned two typographical mistakes, there is no change in the Tribunal's order dt. 25th April, 2003.
24. Lastly, it may be mentioned that, in the garb of rectification/amendment, the Tribunal cannot substitute its earlier order which is in excess of its jurisdiction as per the ratio laid down by Hon'ble Orissa High Court in the case of Prajatantra Prachar Samity v. CIT (2003) 264 ITR 160 (Ori).
25. In the result, the miscellaneous application filed by the applicant is partly allowed as stated above.