Income Tax Appellate Tribunal - Raipur
Shri Anil Kumar Panthi, Raipur vs Income Tax Officer,Ward-3(4), , Raipur on 7 March, 2024
आयकर अपीलीय अिधकरण, रायपुर यायपीठ, रायपुर
IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR
ी र वश सूद, याियक सद य एवं ी अ ण खोड़ पया, लेखा सद य के सम ।
BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM
Miscellaneous Application No.86/RPR/2023
(Arising out of ITA No.236/RPR/2017)
(Assessment Year:2012-13)
Shri Anil Kumar Panthi V Income Tax Officer, Ward-3(4), Raipur
Shop No.23, G.E. Road, s
Medical Complex, Raipur, (C.G.)
PAN: AEQPP5835A
(अपीलाथ /Appellant) . ( यथ / Respondent)
.
िनधा रती क ओर से /Assessee by : Shri G.S. Agrawal, CA
राज व क ओर से /Revenue by : Shri Madan Mohan Meena, Sr. DR
सुनवाई क तार ख/ Date of Hearing : 19.01.2 024
घोषणा क तार ख/Date of : 07.03.2 024
Pronouncement
आदे श / O R D E R
Per Arun Khodpia, AM:
The captioned miscellaneous application is filed by the assessee seeking rectification of mistake arising out of the order of tribunal in Income Tax Appeal No.236/RPR/2017 for the assessment year 2012-13 dated 31.10.2022.
2. The contents of the miscellaneous application filed, and the errors indicated for the rectification by the assessee is extracted here under, for the sake of completeness of facts:
Sub: Misc. Application u/s 254(2) of the Income Tax Act, 1961 -- Rectification of mistake 2 M.A. No. 86/RPR/2023 Shri Anil Kumar Panthi In the above matter, it is respectfully submitted before your honour, as under, for kind and favourable consideration:
1. That the Order in above Appeal filed by the Department and Cross Objection filed by the Assessee has been passed by the Hon'ble Tribunal on 31010.2022. The above Order has been served upon the Appellant on 17.04.2023.
2. That there are mistakes apparent from the record, therefore, this application is being filed by making a prayer to for rectification.
3. That no such application has been filed earlier before the Hon'ble Bench.
4. Brief facts:
1). In this case, the Ld. Assessing Officer passed Order u/s 143(3) dated 27.03.2015 wherein he disallowed Rs.2,35,21,935/- out of unsecured loans for the sole reason that on examination of supportings filed in some cases the lenders have not signed the Confirmation of Account (Page 2 of Assessment Order).
2). Lenders not identified by AO:
That neither during assessment proceedings nor proceedings before the Ld. CIT (Appeals), even after making specific prayer by the Appellant to provide the names of lenders of Rs.2,35,21,935/- and also directed by the Ld. CIT (Appeals) to give the names, the learned Assessing Officer did not identify unsecured loans which were added by him u/s 68.
3). Remand Report by AO under Rule 46:
During proceedings before the CIT (Appeals) various supporting were filed U/R 46A to discharge the burden of proving identification, creditworthiness and genuineness of transaction, which was forwarded by the Ld. CIT (Appeals) to the AO and report from AO was received. No adverse comment was made by the Ld. AO.3 M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi
4). Compilations:
Details of Confirmation of Account, ITR, Balance Sheet, Bank Account, Broker's Slip, Account copy etc., of lenders were summarized and complied and were filed before the lower authorities and is also part of Paper Book filed before the hon'ble Bench as below:
S.N0. Particulars Page No. of Amount (Rs.)
Paper Book
1. Compilation No. 1 where no 19-26 1,52,90,923/-
fresh credit was taken
2. Compilation No. 2 having
opening credit balance and
also had fresh credits taken
During the year year 27-35
Amount received during the
year - 1,21,31,000/-
3. Compilation No. 3 where
fresh cash credits received
34-36 (46,00,000/-)
during the year and
squared-off (not included
in Rs. 2,35,21,935)
4.
Compilation No.4 where
no fresh credit was - -
received during the year
and squared-off
5. Credit received during the
year and included in Rs.
- 1,21,31,000/-
2,35,21,935/-
5) In all cases Confirmations of Account (barring one case) & supportings filed for credits received during the year:
The Assessee filed Confirmations of Account & other supportings such as ITR. Bank Account, Balance Sheet, Broker's Receipt etc., as per above Compilations in all the cases of all the lenders (barring one as below) from whom credit was received during the year.4 M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi 5.1 Confirmation of Smt. Pushpabai sealed but unsigned -- Rs. 1,00,000/- Pages 127A & 127B:
There is only one lender viz., Smt. Pushpabai Ashandas Pidwani, Naharpara, Raipur, whose supportings have been filed at Page Nos. 127A & 127B where there is fresh credit of Rs. 1,00,000/-, the lender has put her seal but it appears from the photocopy available with the Assessee that it was not signed .by her. Receipt from Broker Shri Deepak Kumar Prakash Kumar, Ganjpara, Raipur, who was broker in arranging above borrowings, in support was also filed. This is listed in Compilation No. 2, Item No. 21, at Page 30.
6) Total loan amount balance is as below:
Loan (Cr.) Closing Balance....... Rs.3,28,18,556/- Page. 239 (-) No fresh credit, only opening Page 19-26 Rs.1,52,90,923/-
balance in the A/c .............
-------------------
Difference Rs.1,75,27,635/-
(-) Loan accepted by AO
(Rs.3,28,18,556-2,35,21,935) Rs.92,96,621/-
-------------------
Balance ......... Rs.82,31,014/-
Addition made by AO .......... Rs.2,35,21,935/-
Amount restored by Hon'ble Rs.2,35,21,935/-
ITAT ............ -------------------
7) Mistakes apparent from record:
1. No unsigned confirmation except one credit during the year:
At Para No. 9, the Hon'ble Tribunal, observed that --
"Xxxxxx it is noticed that certain Confirmations are still unsigned. It is evident that the evidences produced before the Ld. CIT were not verified properly and the same needs a thorough verification. Thus, we find it 5 M.A. No. 86/RPR/2023 Shri Anil Kumar Panthi appropriate to restore to the files of Ld. AO for proper verifications of the Confirmations and other supporting evidences produced by the assessee and adjudication of the issue again.
Number of lenders from whom loan was taken during the year is as below:Compilation No. 2 - 35 - Page 27 - 33 Compilation No. 3 - 4 - Page 34 - 36
Submitted that, there is no unsigned confirmation of the loan taken during the year, barring one for Rs. 1,00,000/- of Smt. Pushpabai Ashandas Pidwani. This is a mistake apparent from record.
The Hon'ble Tribunal has not pointed-out such unsigned confirmation of loans taken during the year.
In some cases of lenders money has not been borrowed during the year, but there is old balance. In some such cases, Confirmation of Accounts are unsigned but other supportings were filed. This was not needed u/s 68 as credit not received during the year. The Appellant filed supportings in old balances cases also because the Ld. AO did not identify the names of lenders while making the above addition.
2. Ld. CIT (Appeals) examined:
The Ld. CIT (Appeals) has examined the Confirmations and other Supportings filed and after verification only he has allowed the relief. His relevant finding is as below:
Page 3, Para 2.3:
"Apparently, the Ld. AO has added these loans as the confirmations furnished by the Assessee in respect of which were not signed. There is no working given in the Assessment Order or in the Remand Report as to which of the loans of the total loan of the assessee were unsigned. On going through the record, I find that some of the confirmations were duly signed.6 M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi Apparently, AO has accepted these loans. However, the working has never been mentioned by the AO.
Xxxx xxxx"
Even then, Hon'ble ITAT restored the matter to the file of the Ld. AO for re- examination.
Last two paras of Page 5 of Order of FAA:
"No comment has been made on the proper and completeness of loan confirmations forwarded to her. No working of the figure of the addition of Rs. 2,35,21,935/- has been provided.
Thus, the status as of today is that the assessee has furnished complete list of loans and proper confirmation certificates duly signed by the creditors and bearing PAN, name and address. Assessee has discharged its onus.
Xxxx xxx"
3. Not specific, uncertainty:
That total amount outstanding at the end of the year is Rs. 3,28,18,556/- out of which the Ld. Assessing Officer added Rs. 2,35,21,935/- without identifying which amount added.
The Hon'ble ITAT has directed to re-examine the Loan of Rs. 2,35,21,935/- . There is no identification as to which loans are to be examined out of Rs. 3,28,18,556/ The Order of Hon'ble ITAT is not specific and lacks certainty, and therefore, cannot be implemented.
4. Direction to examine Rs.2,35,21,935/- fresh cash credits received during the year only Rs. 1,21,31,000/-
There is another mistake apparent from the record in as much the Hon'ble Tribunal has restored the matter to the file of AO with the direction to examine the credit of Rs. 2,35,21,935/-, whereas the Appellant received fresh cash credits during the year only of Rs. 1,21,31,000/- which is included in Rs. 2,35,21,935/- as compiled at Compilation No.2, Page 33 of Paper Book.
7M.A. No. 86/RPR/2023
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5. Appellant in disadvantageous position:
By above order, the appellant is in disadvantageous position than he was before.
5.1 AO's comment only for unsigned confirmation, Hon'ble ITAT for examination of supportings also:
After examination of supportings, AO's finding for making addition was that some confirmations were unsigned whereas the Hon'ble ITAT in above Order has restored the matter to the file not only for examining the confirmations but also for other supportings.
6. That the Ld. AO has already examined the supportings on two occasions and did not find any deficiency.
7. The Hon'ble Tribunal didn't consider, though mentioned, the various Judgments cited by the appellant with regard to satisfaction of the AO which is necessary for applying provisions of Sec.68.
8. It may not be out of place to mention that the Appellant is suffering from various ailments such as Paralytic Attack, High Blood Pressure, deficiency in walking & speaking, for which supportings has been filed at Page No. 64 to 68, further enclosed herewith.
9. That Fee of Rs. 50/- has been paid on 14.09.2023 at State Bank of India, BSR Code 0002271 vide Challan No. 37183 - copy enclosed. Prayer:
Prayed that there are mistakes apparent from record, as above, in above Order of Ld. AO. It is prayed to:
1. either to recall or amend the above Order in Appeal & CO; or
2. confirm the Order of Ld. CIT(A) by allowing relief to the Appellant Prayed, 8 M.A. No. 86/RPR/2023 Shri Anil Kumar Panthi (Anil Kumar Panthi) (PAN: AEQPP5835A) Address:
Shop No. 30, G.E. Road, Medical Complex, Raipur (C.G.) Encl.: As above Place: Raipur (C.G.) Date: 15.09.2023
3. On perusal of the aforesaid application of the assessee running into 6 pages wherein the assessee has allegedly pointed out various errors in the order of tribunal at the same time the assessee has tried to refer upon the observations and infirmities in the order of Ld. AO and Ld. CIT, also. It was the allegation that the observations of the tribunal were perverse in terms of mentioning that certain confirmations are still unsigned, however on a fresh perusal of the assessee's paper book no. 1 the confirmation placed at page no.
1, 4A, 5, 6, 7, 15, 26A, 27, 28, 36, 43A, 44, 45, 46, 47, 47A, 48, 49, 49A, 50, 59, 60, 60A, 61, 61A, 62, 63, 63A, 64, 65,66, 66A, 67, 71A, 72, 72A, 73, 80A, 80B, 81, 82, 82A, 83, 83A, 84, 84A, 85, 86A, 87, 87A, 88, 89, 90A, 91, 92, 93, 93A, 94, 98, 99, 101, 102, 103, 104, 106, 107, 109, 110, 111, 112, 113, 116, 117, 120, 121, 122 and many others, it is evident that all these confirmations are not signed by the concerned creditors therefore, the mistake alluded by Ld. AR is totally a false assertion, having no merits and therefore, the same cannot be accepted.
9M.A. No. 86/RPR/2023
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4. Ld. AR also emphasized on certain issues and have argued at length to bring them within the ambit of provisions of section 254(2) stating that the same are mistakes apparent from record, whereas all such issues brought on record by way of miscellaneous application cannot be dealt with and deliberated upon having limited powers conferred upon the tribunal. As per para 3 of the miscellaneous application, it is alleged that the total outstanding of Rs.3,28,18,556/- out of which an amount of Rs. 2,35,21,935/- was not identified by the Ld. AO and the tribunal has directed the Ld. AO, re-examine all such loans which are still un-signed. On this aspect it is to be noted that Income Tax Appellate Tribunal is not an investigating authority, it serves as a Quasi-Judicial Authority. It has to rely upon investigation/ enquiry conducted by the revenue authorities therefore, the ITAT has limited powers to adjudicate the issues and not to investigate into it. Wherever, there are certain ambiguities in the order of the authorities below including obscurity of the information which was not cured by way of reasonable opportunity of explanation to the assessee, in the interest of substantial justice the matter needs to be restored to the AO, so that the incidence of tax is correctly and logically fixed on the assessee and the taxpayer shall not be remediless. In terms of aforesaid observations, assessee's contention to revisit the case, is not less than seeking recall of the order of tribunal and to review the same which is not permissible under the provisions of the Act.
10M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi
5. Ld. AR of the assessee has also raised the grievance that while deciding the appeal, though mentioned, various judgments cited by the appellant but did not consider the same. Such contention is mere presumptive belief of the assessee whereas in the order of tribunal it is categorically mentioned at para 8 that "We have considered the rival submissions, perused the orders of the revenue authorities and considered the case laws relied upon." Accordingly, all the case laws have been considered by the tribunal and a thoughtful decision after carefully visiting the facts of the case have been granted, therefore, such assertion cannot be considered as a mistake apparent from records which can be held to be a subject matter of rectification under the provisions of section 254(2) of the Act.
6. Regarding the mandate of law which allows the tribunal to deal with miscellaneous application of the appellant, the tribunal is having limited powers to rectify any apparent and glaring mistake on the face of records. The tribunal is not expected to re-hear the entire case on merits or to revisit its earlier order and to deal with the merits on the basis of arguments by the appellant. In this respect, the principle of law laid down by Hon'ble Apex Court in the case of Commissioner of Income Tax (IT-4), Mumbai v. Reliance Telecom Limited dated December 3, 2021, in Civil Appeal No. 7110 of 2021 reported in [2021] 133 taxmann.com 41 (SC), shall be relevant and binding on us to follow, wherein Hon'ble Apex Court has held as under:
11M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi 3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is beyond the scope and ambit of the powers under section 254(2) of the Act. While allowing the application under section 254(2) of the Act and recalling its earlier order dated 6-9-2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of section 254 of the Act with a view to rectifying any mistake 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 6-9-2013 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 law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that.
12M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an 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.
7. We may herein also note that in the case of CIT v. Pearl Woolen Mills [2011] 330 ITR 164/[2010] 191 Taxman 286 (Punj. &Har.), Hon'ble Punjab & Haryana High Court have accorded similar findings which reads as under:
"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."
8. 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."
9. Regarding scope of application of section 254(2), coordinate bench of the tribunal, ITAT Hyderabad, A bench in the case of Sri Madireddy Venkat Reddy v. Additional Commissioner of Income-tax, Range -11, Hyderabad reported in [2013] 38 taxmann.com 60 (Hyderabad - Trib.) has dealt in detail and has observed as under: 13 M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi
9. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under s. 254(1) is the effective order so far as the appeal is concerned. Any order passed under s. 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining unamended is the effective order for all practical purposes. An order under s. 254(2) does not have existence de hors the order under s. 254(1). Recalling of the order is not permissible under s. 254(2).
Recalling of an order automatically necessitates rehearing and re- adjudication of the entire subject matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms of Rule 24 of the ITAT Rules, 1963, and that too only in case where the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex parte. Judged in the above background the order passed by the Tribunal is indefensible.
10. The words used in s. 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. 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(2) is as follows:
"(a) Firstly, the scope and ambit of application of s. 254(2) of IT Act is restricted to rectification of the mistakes apparent from the record.
(b) Secondly, that no party appearing before the Tribunal should suffer on account of any mistake committed by the Tribunal and if the prejudice has resulted to the party, which prejudice is attributable to the Tribunal's 14 M.A. No. 86/RPR/2023 Shri Anil Kumar Panthi mistake/error or omission, and which an error is a manifest error, then the Tribunal would be justified in rectifying its mistake. The "rule of precedent"
is an important aspect of legal certainty in the rule of law and that principle is not obliterated by s. 254(2) of the Act and non-consideration of precedent by the Tribunal causes a prejudice to the assessee.
(c) Thirdly, power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified.
(d) Fourthly, under s. 254(2) an oversight of a fact cannot constitute an apparent mistake rectifiable under the section.
(e) Fifthly, failure on the part of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgment.
(f) Sixthly, even if on the basis of a wrong conclusion the Tribunal has not allowed a claim of the party it will not be a ground for moving an application under s. 254(2) of the Act.
(g) Lastly, in the garb of an application for rectification under s. 254(2) the assessee cannot be permitted to reopen and reargue the whole matter as the same is beyond the scope of s. 254(2) of the IT Act."
13. Further, the order of the Tribunal is to be read in a whole and not in a piecemeal manner. For this purpose, we place reliance on the judgment of Supreme Court in the case of CIT v. Karam Chand Thapar & Bros. (P.) Ltd. [1989] 176 ITR 535/43 Taxman 45 wherein held that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts USP 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 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. 15 M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi
10. 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:
I. T.S. Balaram, ITO v. Volkart Brothers*[1971] 82 ITR 50 (SC) DB "A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde v. MallikarjunBhavanappa Tirumale [I960] 1 SCR 890, this court while spelling out the scope of the power of a High Court under article 226 of the Constitution ruled that an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record--see Sidhramappa Andannappa Manvi v. Commissioner of Income-tax [1952] 21 ITR 333 (Bom.). The power of the officers mentioned in section 154 of the Income-tax Act, 1961, to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record." In this case it is not necessary for us to spell out the distinction between the expressions "error apparent on the face of the record" and "mistake apparent from the record". But suffice it to say that the Income-tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent.'' II. CIT vs. HERO CYCLES (P) LTD etc. (1997)228 ITR 463(SC) Civil Appeal No.7665/96
2. The High Court declined to call for a reference under s. 256(2) of the IT Act, 1961. It appears that the claim for deduction under s. 35B was not originally allowed at all. Thereafter, on an assessee's application an order was passed 16 M.A. No. 86/RPR/2023 Shri Anil Kumar Panthi by the CIT(A), Jalandhar, in which he directed certain allowances to be given on proportionate basis after verification of the assessee's claim under s. 35B.
The ITO thereafter entertained assessee's prayer for rectification of the order and allowed the assessee's claim in respect of matters like coloured albums, export staff travelling expenses, export sales commission, ECGC, foreign 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 cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need a long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record. 17 M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi
11. In view of the aforesaid binding, guiding and settled principle of law respectfully following the same, we reject the MA filed by the assessee, wherein the assessee is requesting for review of the earlier order of the tribunal in the garb of rectification of mistake by way of long drawn process of reasonings and arguments which is neither permissible nor allowed under the provisions of Act.
12. The mistakes sought to be rectified under the present application are not apparent, patent, manifest or self-evident errors, which are not free from further deliberation and does not require elaborate discussion of evidence or arguments to establish it, therefore, the request for rectification of such error itself having no apparent mistake as defined by Hon'ble Apex Court in the cases referred to supra is not maintainable, we thus, respectfully following the principle of law laid down by Hon'ble Apex Court, do not find any merits in the contentions of the Ld. AR wherein the request was made to re-argue and re- hear the entire case which is beyond the scope of the provisions of section 254(2).
13. In view of the aforesaid observations, Since the assessee squarely failed in point out any mistake apparent from records which calls for rectification withing the provisions of section 254(2) in the impugned order of tribunal, thus, in absence of any mistake apparent on record which warrants rectification of Tribunal's order, the lengthy contentions raised by the appellant in present MA filed being devoid and bereft of merits are rejected. 18 M.A. No. 86/RPR/2023
Shri Anil Kumar Panthi
14. Resultantly, the MA No. 86/RPR/2023 of the assessee stands dismissed.
Order pronounced in the open court on 07/03/2024.
Sd/- Sd/-
(RAVISH SOOD) (ARUN KHODPIA)
याियक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
रायपुर/Raipur; दनांक Dated 07/03/2024
Vaibhav Shrivastav
आदे श क ितिल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant-
2. यथ / The Respondent-
3. आयकर आयु (अपील) / The CIT(A),
4. The Pr. CIT -1, Raipur, (C.G.)
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur
6. गाड फाईल / Guard file.
// स या पत ित True Copy // आदे शानुसार/ BY ORDER, (Assistant Registrar) आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur