Income Tax Appellate Tribunal - Raipur
Deputy Commissioner Of Income ... vs Shri. Javed Ali Pradhan,, Raipur on 24 April, 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. 02/RPR/2018, 06 to 12/RPR/2024)
(Arising out of ITA No. 126 to 132/BLPR/2011)
(Assessment Year: 2001-02 to 2007-08)
Assistant Commissioner of Income Tax- V Shri Javed Ali Pradhan House,
1(1), Raipur, Chhattisgarh s Civil Lines, Raipur, Chhattisgarh
PAN: AGBPA1758J
(अपीलाथ /Appellant) . ( यथ / Respondent)
.
िनधा रती क ओर से /Assessee by : Shri Rajesh Kumar Chawda, CA
राज व क ओर से /Revenue by : Shri Satya Prakash Sharma, Sr. DR
सुनवाई क तार ख / Date of Hearing : 19.04.2 024
घोषणा क तार ख/Date of : 24.04.2 024
Pronouncement
आदे श / O R D E R
Per Arun Khodpia, AM:
The captioned Miscellaneous Applications are filed by the department against the order of tribunal in ITA no. 126 to 132/BLPR/2011 dated 10.01.2018.
2. The statement of facts and grounds stating grievance of the revenue in filing the instant miscellaneous application, for the sake of clarity, is culled out as under:
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M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 3 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 4 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 5 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 6 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 7 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 8 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
3. In view of aforesaid miscellaneous application, the controversy raised by the revenue stating that the impugned order passed in the case of Shri Javed Ali Pradhan, the assessee was never heard and hence the observation of the tribunal regarding not bringing any material to show investment or sale of any asset by the assessee is baseless. It is the submission of department that the observations of the tribunal rendered in the impugned order are factually incorrect as neither the then Ld. CIT DR, Shri R. K. Singh nor the assessee was given even a single opportunity to represent the case before the bench. To support the contentions raised in the present miscellaneous application a letter dated 05.06.2018 by the then Ld. CIT DR / CIT(A)-II, Raipur, C.G. suggesting recommendation for filing of MA to Ld. PCIT-I, Raipur, was submitted before us, the same is also extracted hereunder for completeness of the facts: 9
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 10 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 11 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 12 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
4. An affidavit dated 13.01.2023 duly signed by the then CIT DR Shri R.K. Singh is furnished before us by the revenue to support the objections raised in the present MA. The same is also extracted hereunder: 13
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 14 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
5. During the hearing of present MA's, it is observed that the department has filed a single MA No.2/RPR/2018 towards the common order of tribunal dated 10.01.2018 in ITA No 126 to 132/BLPR/2011. A question was confronted to Ld. Sr DR that to assail for rectification of any mistake in the order of tribunal the parties thereto are eligible to file miscellaneous application u/s 254(1) of the Income Tax Act, as per law it is mandatory that for rectification in each appeal separate miscellaneous application has to be filed, but in present case only one application is filed for seeking rectification in all the 7 Income Tax Appeals, therefore, why the solo MA filed by the department towards 7 Income Tax Appeals should not be considered as maintainable only for one appeal. In response, Ld. Sr DR submitted that the department has inadvertently filed a single MA under bonafide belief, because there was a common order by the ITAT towards all 7 appeals. Ld. Sr DR further submitted that the since no defect in the MA of the department had been pointed out by the registry of the tribunal at the time of filing of the same, the department was under bonafide belief that the MA filed does not suffer with any procedural laps, however since the defect is now emerged and MA of the department is maintainable only for one tax appeal and for remaining appeals separate MA's are required, it is requested that liberty may be granted for filing of separate MA's for all the 7 appeals.
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M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
6. On a thoughtful consideration of the explanations by the Ld. Sr DR, we are of the view that the department had filed MA No. 02/RPR/2018 seeking rectification of mistake in ITA No.126 to 132/BLPR/2011, which was accepted by the registry of the tribunal without raising any defect, under such circumstances, though there was a procedural default on the part of department, but the same cannot be held as an intentional laps by the department since their solitary MA was accepted without any objection by the registry from tribunal, accordingly liberty was granted to file separate miscellaneous application for all the 7 appeals. In compliance department has filed 7 MA's, marked as MA No. 6 to 12/RPR/2024, the same are, thus, accepted and are under consideration.
7. Ld. AR, Shri Rajesh Chawda submitted that in all the impugned income tax appeals which are referred by the department to recall by way of MA's are consisting of tax effect below the monetary limit as per circular No. 17 of 2019 dated 08.08.2019, accordingly, even if these appeals are recalled all these appeals having tax effect below Rs. 50 lacs shall be liable to be dismissed as not maintainable. In this respect, it is clarified by the revenue that the impugned cases of the assessee do not fall under any of the exceptional clause of CBDT's circular no. 3/2018 dated 11.07.2018, however the reason for filing MA in the above-mentioned cases is that the case was decided by the tribunal without hearing the department. 16
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
8. To contravene the contention of the revenue that the tribunal have not heard the impugned appeals and decided the same, Ld. AR submitted that the cases were called for hearing, that on the day of hearing i.e., on 08.01.2018, he had requested for adjournment of the impugned cased on behalf of the assessee by submitting an application seeking adjournment with the reason that the counsel of the assessee is not available to argue the appeals for some personal reason, the adjournment sought have been rejected by the tribunal and thereafter the case was heard without representation by the respondent assessee. It was the submission that on behalf of revenue Shri R.K. Singh CIT DR was present. A written synopsis on 03.11.2023 a/w copy of order sheet of the tribunal is furnished by the Ld. AR, the relevant pages of the same are extracted hereunder for the completeness of the facts:
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M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 18 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 19 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 20 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
9. Based on aforesaid submissions, it was the contention of Ld. AR that the appeals of the department under the impugned order of tribunal were dismissed after hearing the departmental representative. The assessee was not represented by anyone. Ld. AR Shri Rajesh Chawda had admitted that he personally was present on the date of hearing on 08.01.2018 with a request on behalf of the assessee for adjournment of the said cases but the adjournment was denied by the tribunal as he was unable to produce power of attorney / Vakalatnama from the assessee, authorizing him to represent the case of the assessee. It was the submission of Ld. AR that he was not allowed for adjournment of the cases of the present assessee, but the cases were called for hearing and the departmental representative i.e., Ld. CIT DR was heard by the bench and the respondent assessee could not be represented by anyone, therefore, the order was passed ex-parte qua the respondent assessee. To support this contention that the matter was duly heard by the tribunal, a counter affidavit has been filed by the Ld. AR, Shri Rajesh Chawda, who was present during the hearing dated 08.01.2018, it is pertinent to note that presence of Mr. Chawda at the time of hearing of the matters is an undisputed and admitted fact, as emanating from the MA of department also. Copy of affidavit submitted by the Ld. AR, is extracted as under: 21
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 22 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
10. We have considered the rival submissions, perused the material available on record and the impugned order of the tribunal. In the present case department has filed miscellaneous application against the tribunal's order dated 10.01.2018 in the aforesaid matters, alleging that while disposing off these matters the appeals were never heard and hence the observations of the tribunal regarding not bringing any material to show investment or sell of any asset by the assessee is objected to alleging that the same is baseless. It is also alleged that query regarding the copies of loose sheets on the basis of which additions were made was not produced before us was never raised by the bench during the appellate proceedings.
It was the grievance that ITAT was not justified in giving a contrived findings thereby ignoring the basic principles of natural justice. Department has raised another question that tribunal was not justified and giving a decision in favour of the assessee and against the revenue though there is no nexus between conclusion of facts and primary fact upon which conclusion is based. On perusal of the contents of the MA which were further tried to substantiate by the department with the submission of affidavit of the then Ld. CIT DR Shri R.K. Singh dated 13.01.2023, wherein it is appraised that Ld. CIT DR was under bonafide belief that in the cases of Javed Ali Pradhan cases would be adjourned for which Chartered Accountant representing the assessee sought for adjournment. It was also admission of the Ld. CIT DR that "due to this hectic work schedule, I 23 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan might have not noticed that the case was not adjourned but was sought to be heard ex-parte qua the respondent assessee." It is further mentioned by the Ld. CIT DR that he was under bonafide belief that the case was not heard, and adjourned sine die, therefore, he wrote a letter dated 05.06.2018 to Ld. PCIT, Raipur recommending filing of MA in the present case. On perusal of order sheet of the tribunal and according to submissions and declarations in affidavit of the Ld. AR Shri Rajesh Chawda, who was the prime witness of the proceedings before the tribunal dated 08.01.2018, it is evident that hearing of the impugned cases have taken place, and the cases were duly heard. Presence of the assessee's representative was not marked and also the adjournment sought was rejected, therefore, the appeals are heard on ex-parte basis qua the respondent assessee. Presence of the departmental representative i.e., Ld. CIT DR was marked in the order as well as in the order sheet dated 08.01.2018. Declaration by Ld. CIT DR, Shri R.K. Singh in his affidavit that "due to this hectic work schedule, I might have not noticed that the case was not adjourned but was sought to be heard ex-parte qua the respondent assessee.", shows that he was under bonafide belief that the hearing might not have been conducted, such assertions are on the foundation of self-conviction, whereas the documented facts and the claim of the foremost witness Mr. Rajesh Chawda, Chartered Accountant are indicating on the contrary that the hearing have been duly conducted. 24
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan Under such facts and circumstances, it is incomprehensible to subscribe to the allegation of the revenue that the appeals were never heard, which led them to file the present miscellaneous applications. Regarding various grounds raised in the miscellaneous applications, besides no hearing by the ITAT, no further explanations, argument or evidence could be brought on record by the department. All such allegations are indicating perversity in the orders of tribunal, however no mistake apparent, glaring, patent, manifest or self-evident which requires to be rectified could be brought to our notice, thus, the department is seeking review of the order of the tribunal by way of recalling in the garb of provisions of Section 254(2), which is not permissible under the settled position of law in this respect. In view of aforesaid observations, we do not find any merits in the contentions of the revenue wherein the request was made to re-argue and re-hear the entire cases which is beyond the scope of the provisions of section 254(2).
11. 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 25 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 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:
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. 26
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
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. 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.
12. 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.27
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 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."
13. 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."
14. 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:
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 28 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 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."
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M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
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 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." 30
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan
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. 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 31 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 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 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 32 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan 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 nnot 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.
16. Respectfully following the aforesaid case laws, as per settled principle of law, considering the aforesaid observations, since the revenues contention that the appeal in the impugned cases were not heard was found to 33 M.A. No. 02/RPR/2018, 06 to 12/RPR/2024 Arising out of ITA No. 126 to 132/BLPR/2011 Shri Javed Ali Pradhan an assumptive perception, not matching with the factual evidence, therefore, found to be unsubstantiated, thus, in absence of any mistake apparent on record which warrants rectification within the provisions of section 254(2), in the impugned orders of the tribunal, the contentions raised by the department in present MA's, being devoid and bereft of merits are rejected.
17. Resultantly, the MA No. 02/RPR/2018, M.A. No. 07 to 12/RPR/2024 for AY 2001-02 to 2007-08 of the revenue stands dismissed.
18. Regarding M.A. No. 06//RPR/2024 it is observed that the same is filed twice for the AY 2001-02, whereas MA No. 02/RPR/2018 for AY 2001-02 was already in existence on the records before the tribunal, which is disposed off in the present order, consequently MA No. 06/RPR/2024 rendered infructuous, thus, dismissed.
Order pronounced in open court on 24/04/2024.
Sd/- Sd/-
(RAVISH SOOD) (ARUN KHODPIA)
याियक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
रायपुर/Raipur; दनांक Dated 24/04/2024
Vaibhav Shrivastav
आदे श क ितिल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant-
34
M.A. No. 02/RPR/2018, 06 to 12/RPR/2024
Arising out of ITA No. 126 to 132/BLPR/2011
Shri Javed Ali Pradhan
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