Income Tax Appellate Tribunal - Raipur
Pr. Commissioner Of Income Tax-1, ... vs Piyush Kumar Choubey, Rajnandgaon on 23 July, 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.3/RPR/2022)
(Arising out of ITA No.53/RPR/2021)
(Assessment Year: 2017-18)
Principal Commissioner of Income Tax-1, V Piyush Kumar Choubey,
Raipur s M/s Khetibari Beej Bhandar, Lakholi Road,
Ganj Chowk, Rajnandgaon, (C.G.)
PAN: AGLPC5481C
(अपीलाथ /Appellant) . ( यथ / Respondent)
.
िनधा रती क ओर से /Assessee by : Shri Rahul Jain, Adv.
राज व क ओर से /Revenue by : Shri Choudhary N.C. Roy, Sr. DR
सुनवाई क तार ख/ Date of Hearing : 07.06.2 024
घोषणा क तार ख/Date of : 23.07.2 024
Pronouncement
आदे श / O R D E R
Per Arun Khodpia, AM:
The captioned Miscellaneous Application is filed by the department against the order of tribunal in ITA No.53/RPR/2021 dated 11.10.2021. The brief facts, contents, and prayer of the department in the intent MA are extracted as under:
2 MA No.3/RPR/2022Piyush Kumar Choubey
2. During the hearing on 24.11.2023, a clarification to the aforesaid MA was submitted by the Ld. Sr. DR, as received from the concerned Assessing Officer i.e., Income Tax Officer-1, Rajnandgaon, enclosed therewith (i) Appraisal Report, (ii) Confidential letter of DDIT(Inv)-II, Nagpur and (iii) Other relevant papers. For the sake of completeness of facts, the clarifications so submitted before us, is extracted as under:
3 MA No.3/RPR/2022Piyush Kumar Choubey 4 MA No.3/RPR/2022 Piyush Kumar Choubey 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. Accordingly, the cash was seized after drawing a panchnama. Later on, the case was transferred to the ITO-I, Rajnandgaon vide letter dated 05.04.2017. The impugned assessment order was treated to be erroneous as it was prejudicial to the interest 5 MA No.3/RPR/2022 Piyush Kumar Choubey of revenue. Accordingly, in exercise of powers vested under section 263 of the Act, the case was referred for review.
3- In compliance to the direction of the Hon'ble Member, ITAT Bench, Raipur, the applicability of the conditions as defined under the Circular No. 10/2021 (F.NO. 282/22/2012-1T(lnv.V)] dated 31.12.2012 and Rule 112F of the Income Tax Rules, 1962, vis-å-vis the grounds of filing Miscellaneous Application, it is found that the provisions of Rule 112F read with the Sub-Rule (i) and (ii) are very much applicable in the assesee's case since the assesse belongs to 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 since the assesee is covered under the conditions as laid down under Sub-Rule (i) and (ii) to Rule 112F of the Income Tax Rules, 1962.
3.A- As regards Sub-Rule (i) to Rule 112F which reads as under :
Whereas a result of a search under sub section (1) of section 132 of the Act or a requisition made under section 132A of the Act, a person is found to be in possession of any money, bullion, jewellery or other valuable articles or things, whether or not he is the actual owner of such money, bullion, jewellery, etc; and it is clearly evident from the documents available on record that this is a case where search has been conducted by virtue of powers enshrined in the requisition made under section 132A of the Act which was duly concluded on 28.12.2016. Further, during the course of search operation cash was found in the possession of the assessee which the assessee failed to explain.
3-B. As regards Sub-Rule (ii) to Rule 112F which reads as under :
"Where such search is conducted or such requisition is made in the territorial area of an assembly or parliamentary constituency in respect of which a notification has been issued under section 30 read with section 560f the Representation of the People Act, 1951(43 of 1951)or where the assets so seized or requisitioned are connected in any manner to the ongoing election in an assembly or parliamentary constituency."
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.
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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 previous year in which search is conducted or requisition is made.
The aforesaid amendment was introduced with a view to reduce infructuous and unnecessary proceedings under the Income Tax Act, 1961 in cases where a search is conducted u/s 132 or requisition made u/s 132A and cash or other assets are seized during the election period, generally on a single warrant, and no evidence is available, or investigation required, for any assessment year other than the assessment year relevant to the previous year in which search is conducted or requisition is made. In such cases, the officer investigating the case, with the approval of the Director General of Income Tax, shall certify that -
(i) the search is conducted under section 132 or the requisition is made under section 132A of the Act in the territorial area of an assembly or parliamentary constituency in respect of which a notification has been issued under section 30, read with section 56 of the Representation of the People Act, 1951; or
(ii) the assets seized or requisitioned are connected in any manner to the ongoing election process in an assembly or parliamentary constituency; and
(iii) no evidence is available or investigation is required for any assessment year other than the assessment year relevant to the previous year in which search is conducted or requisition is made.
The certificate of the investigating officer shall be communicated to the Commissioner of Income Tax and the Assessing Officer having jurisdiction over the case of such person. 4-A. On going through the circular No. 112F of the Income Tax Rules, 1962 referred hereinabove, the undersigned submits before the Hon'ble Member, ITAT Bench, Raipur that the Assessing Officer had sufficient reasons for non-issuance of notice under section 153A of the Income Tax Act as the assesee's case fulfils the conditions laid down under the Rule 112F of the Income Tax Rules. In this regard, a detailed confidential report vide F.No. DDlT(lnv)-ll/132A/HO/2017-18 dated 15/04/2017 is enclosed herewith as a part of 7 MA No.3/RPR/2022 Piyush Kumar Choubey this report. On going through the said report it is clearly evident that the conditions as laid down under (i), (ii) and (iii) mentioned supra are fulfilled. The Investigating Officer in this case has submitted his appraisal report comprising of Chapter - 1 to Chapter -5 (Pages 1 to 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.
Encl: (i) Appraisal Report
(ii) Confidential Letter of DDIT (Inv)II, Nagpur
(iii) Other relevant papers.
Yours faithfully,
( Sujit Bhattacharjee )
Income Tax Officer -1, Rajnandgaon
Copy forwarded to :
1. The Pr. Commissioner of Income Tax-I, Raipur for favor of kind information.
2. The Addl. Commissioner of Income Tax, Range-I, Bhilai for favor of kind information.
Income Tax Officer -1, Rajnandgaon
3. On the basis of aforesaid submissions, Ld. Sr. DR placed the contention that the issue involved in the present case, which was deliberated upon by the tribunal in its order was that, whether the assessment in a case wherein requisition has been made u/s 132A of the Act, the jurisdiction to complete the assessment is to be governed by the provisions of section 8 MA No.3/RPR/2022 Piyush Kumar Choubey 153A of the Act? Before ITAT, It was also the claim of the assessee that provisions of assessment u/s 143(3) of the Act would not apply in the case where action has been taken either u/s 132 of the Act or u/s 132A of the Act.
It is further assailed that that the tribunal has decided the issue expressing that the assessment has been wrongly framed with the aid of section 143(3) under the normal provisions of the Act. Ld. Sr. DR argued that, while passing the order there was an apparent error in the order of tribunal, wherein the applicability of conditions as defined under the CBDT's circular no. 10/2012 dated 31.12.2012 (supra) are not taken into consideration. Also, the provisions of Rule 112F introduced by the Finance Act, 2012 read with sub-
rule (i) & (ii), which are very much applicable in the present case and the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income since the assessee is covered under the conditions laid down under the said Rule. Supported with the aforesaid contentions, it was the prayer that the miscellaneous application of the revenue may be admitted recalling the order of the tribunal dated 11.10.2021 in ITA No. 53/RPR/2021 and re-institute to rehear the appeal again on its merits.
4. Contradicting the aforesaid contentions of the department, Ld. AR of the assessee submitted that, since a view has been taken by the tribunal with a careful consideration after hearing both the parties, and the issue has been decided in favour of the assessee on the basis of legal contentions raised therein. Now the department has come up with lengthy submissions which 9 MA No.3/RPR/2022 Piyush Kumar Choubey 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. Admittedly, in the present case, on perusal of the order of tribunal it is discernible that the tribunal had considered the submissions of both the parties and have expressed a positive view on the legal contention raised by the assessee. It is also apparent that the contentions raised in the present MA by the department are explained / clarified under an exhaustive submission. We herein may observe that such lengthy contention which needs to be looked into and dealt with under a long-drawn deliberation and debate, therefore, such arguments does not suggest a mistake apparent from 10 MA No.3/RPR/2022 Piyush Kumar Choubey record that can be pointed out for rectification invoking the provisions of section 254(2). Further, the prayer of the department to re-call, reinstitute and rehear the present matter would equate to review, which is absolutely not within the purview / powers of Tribunal conferred upon it by the provisions of section 254(2).
6. Regarding the mandate of law which allows the tribunal to deal with miscellaneous application of the appellant, it is to be appreciated that 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.
7. 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:
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 11 MA No.3/RPR/2022 Piyush Kumar Choubey 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.
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.
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8. 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."
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 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."
10. 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 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 13 MA No.3/RPR/2022 Piyush Kumar Choubey 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 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.
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(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.
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:
15 MA No.3/RPR/2022Piyush Kumar Choubey 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 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 16 MA No.3/RPR/2022 Piyush Kumar Choubey 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.
12. In view of the aforesaid binding, guiding and settled principle of law respectfully following the same, we reject the MA filed by the department, wherein a request has been made for rehearing / review of the earlier order of the tribunal in the garb of rectification of mistake by way of long drawn 17 MA No.3/RPR/2022 Piyush Kumar Choubey process of reasonings and arguments which is neither permissible nor allowed under the provisions of Act.
13. In view of the aforesaid observations, Since the department has squarely failed in point out any mistake apparent from records which calls for rectification within the provisions of section 254(2) in the impugned order of tribunal, thus, in absence of such preconditions to allow an application under section 254(2) which warrants for rectification of Tribunal's order. The lengthy contentions raised by the department in present MA cannot be accepted at this stage, thus, the same are rejected.
14. Resultantly, the MA No. 03/RPR/2022 of the department stands dismissed, in terms of our aforesaid observations.
Order pronounced in the open court on 23/07/2024.
Sd/- Sd/-
(RAVISH SOOD) (ARUN KHODPIA)
याियक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
रायपुर/Raipur; दनांक Dated 23/07/2024
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. आयकर आयु / CIT
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR,
ITAT, Raipur
6. गाड फाईल / Guard file.
18
MA No.3/RPR/2022
Piyush Kumar Choubey
// स या पत ित True copy //
आदे शानुसार/ BY ORDER,
(Assistant Registrar)
आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur