Income Tax Appellate Tribunal - Amritsar
Shri Raghu Raj Chethley, Moga vs Income Tax Officer, Ward 2, Moga on 29 October, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH, AMRITSAR
BEFORE SH. B.R. BASKARAN, ACCOUNTANT MEMBER AND
SH. N.K.CHOUDHRY, JUDICIAL MEMBER
M.A No.30/Asr/2019
(Arising out of I.T.A No.645/Asr/2018)
Assessment Year: 2011-12
Raghu Raj Chethley Vs. Income Tax Officer
139-142, Main Bazar Ward-2, Moga
Moga
[PAN:ABYPC 2989H]
(Appellant) (Respondent)
Appellant by: Sh. Y. K. Sud (Ld. CA)
Respondent by: Sh. Amarpal Meena (Ld. DR)
Date of hearing: 30.08.2019
Date of pronouncement: 29 10.2019
ORDER
PER N.K.CHOUDHRY, JM:
The assessee by way of this Miscellaneous Application dated 26.07.2019 u/s 254(2) of the Income Tax Act, 1961 (hereinafter called as 'the Act') has sought rectification of the order by amendment in accordance with law by mentioning the following facts.
"1. That the order in the above said appeal was passed on 22.03.2019 and perusal to the order passed shows the mistakes mentioned hereinafter.
2. That the appeal of the assessee has been restored back to the CIT(A) for disposal on merits by giving the following findings in para 6.2 page 10 of the order "Hence, for the end of justice, we feel it appropriate to remand back this case to the file of the Ld.CIT(A) to decide afresh the appeal of the assessee while affording reasonable opportunities of being 2 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO heard. It is suffice to say that the Appellant shall co-operate with the appellant proceedings and shall appear as and when required by the Ld. CIT(A) and in case of default the Ld. CIT(A) at liberty to dispose of the appeal on merit ex-parte. As the Ld. CIT(A) has passed the order ex-parte therefore, we are not adverting to the other grounds/issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above.
3. That in para 6.1 of the order the ITAT has given the following findings appearing at Page No. 9 of the order "From the replies, it clearly reflects that the appellant categorically taken the stand that amount of Rs.36 lacs for the Asst. Year 2011-12 does not belong to the appellant's wife but belongs to the appellant himself. From the categorical acceptance on the part of the appellant, the argument to the effect that as the amount of Rs.36 lacs was found in the accounts of the appellant's wife by the revenue department therefore could have been subjected to addition in the appellant's wife assessment only, is devoid of merits and hence rejected.
4. That both the finding of ITAT are contradictory to each other because the finding mentioned in para 2 of this application clearly states that CIT(A) shall decide the appeal without being influenced by any of the observations made above, and on the other hand the ITAT has commented on merits as stated above.
5. That ITAT should have refrained from making any comment on the merits which it has wrongly commented upon in its finding in para 6.1 of the order.
6. That even otherwise while commenting upon the merits the ITAT only considered the submissions of the assessee made before the ITO and reproduced the same in para 6 & 7 of the order without confronting the same to the undersigned counsel and further the legal submission of the undersigned counsel has not been considered where it was submitted that no addition can be made u/s 68 unless there is a credit in the books of accounts of the assessee which the AO finds unexplained and it was submitted that the credit of Rs.36 lacs appeared in the bank account of the wife of the assessee Smt. Heather Chethley. Therefore addition could have made only in the hands of the wife where the credit appeared.
3 M.A.No.30 /Asr/2019(Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO In this regard the counsel also cited the judgment of Hon'ble Supreme Court in the case of CIT Vs K. Chinnathamban - 292 ITR 681 wherein the Hon'ble Supreme Court had laid down the law "Held, reversing the decision of the High Court, that the onus of proving the source of deposit primarily rested on the persons in whose names the deposits appeared in the various banks. There was no evidence to show that members of the public had been placing their deposits with the firm through their relatives and friends and there was no question of linking up all those amounts with the books of the firm. As C the assessee, was not able to explain the source of the moneys deposited, the Department was right in making the individual assessment in the name of the assessee.
7. That since mistakes pointed out above are apparent from record you are requested to rectify the same by amending your order in accordance with the law."
2. At the time of argument of this Misc. Application, the Ld. AR has submitted that during the course of argument of ITA No.645/Asr/2018 before the Hon'ble Bench, it was submitted that as per provisions of Sec.68 no addition can be made unless there is a credit in the books of account of the assessee which the AO finds unexplained. In the case of appellant, there was no credit appearing in the books of account of the assessee as the credit of Rs.36 lacs appeared only in the Bank Account of Ms. Heather Chethley, wife of the assessee, therefore, the addition could be made only in her hands. The assessee in support of his contention also relied upon the judgment of Hon'ble Apex Court in the case of CIT vs. Chinnathamban (2007) 292 ITR 681(SC), however, in the order neither the submission nor the judgment of the Hon'ble Supreme Court has been considered while passing the order.
4 M.A.No.30 /Asr/2019(Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO
3. On the contrary, the Ld. DR submitted that the order under challenge does not suffer from any perversity, illegality and/or impropriety and even no mistake is apparent from record which can be rectified.
4. Having heard the parties and perused the material available on record. Let us to reproduce the relevant provision of law as applicable for rectification of the order on the ground of any mistake apparent from the record.
"Orders of Appellate Tribunal
254.(1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
(1A) [***] (2) The Appellate Tribunal may, at any time within six months from the end of the month in which the order was passed, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer :
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard : Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.
4.1 From the provisions of Sec.254(2) it is clear that Tribunal may at any time within six months from the end of the month, in which the order was passed, with a view to rectify any mistake apparent from the record, amend any order passed by it and 5 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO shall make such amendment in appropriate cases. Further, makes it amply clear that a 'mistake apparent from the record' is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record.
4.2 The Apex Court in Master Construction Co. (P.) Ltd. v.
State of Orissa [1966] 17 STC 360, held that:
"An error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law".
4.3 The Hon'ble Supreme Court in the case of CIT vs. Karam Chand Thapar & Br. P. Ltd.,176 ITR 535 has held as under:
"It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the 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."6 M.A.No.30 /Asr/2019
(Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO 4.4 The Hon'ble Delhi High Court in the case of Ras Bihari Bansal Vs. CIT 293 ITR 365, on the scope of rectification u/s 254(2) of the Act, has held as under:
"Section 254 of the Income Tax Act, 1961, enables the concerned authority to rectify any "mistake apparent from the record". It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section."
4.5 In conclusion, crux of the provisions and judgments is that the scope for rectification of the order is very limited and depends upon the mistake apparent from record. The Tribunal can only rectify its mistakes apparent from the record and the provision of rectification does not permit the Tribunal to review its earlier order. There is wide difference between rectification and review. Rectification implies correction of error and removal of defect or imperfection and while exercising power rectification, the court can not exercise the power of review or revision. It is well settled principle of law that review is creature of statute and in absence of any statutory provision for review, exercise of power of review under garb of rectification, modification and correction is not permissible. The scope and ambit of the power which could be exercised under section 254(2) of the Income Tax Act 1961 is circumscribed and restricted within the ambit of the power vested by the said section. Such a power is neither a 7 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO power of review nor is akin to the power of revision but is only a power to rectify a mistake apparent on the face of the record. Rectification implies the correction of an error or a removal of defects or imperfections. It implies an error, mistake or defect which after rectification is made right. Therefore on the aforesaid analyzation, the inference can be drawn that the mistake apparent from record can be rectified but not otherwise.
5. Now coming to the instant case.
The assessee's main contention is that as per provision of Sec.68 no addition can be made unless there is a credit in the books of accounts of the assessee. Further, in the case of appellant, there was no credit appearing in the books of account of the assessee and credit of Rs.36 lacs appeared only in the bank account of M/s Heather Chethley, wife of the assessee, therefore, the addition could only be made in her hands. Further, the grievance of the assessee that neither the submission nor the judgment of the Hon'ble Supreme Court has been considered while passing the order.
6. Let us to reproduce Para No.5 of the order dated 22.03.2019 passed by the Co-ordinate Bench.
"5. On aggrieved the Appellant challenged the impugned order by filing the instant appeal and submitted that Appellant had entered into an agreement dated 26.12.2010 for the sale of immovable property situated at Mittal Road, Moga for Rs.1,05,00,000/- with Sh. Harjit Singh through his attorney Mr. Manjit Singh Chahal and received Rs.50 lacs as earnest money in cash, out of which amount of Rs.36 lacs was deposited in the bank account of his wife Smt. Heather Chethley and rest amount of Rs. 14,00000/- was deposited in his account therefore the deposits stands explained. The Ld. A.R. specifically emphasized that revenue department detected the amount of 36 lacs in the account of Appellant's wife and therefore the Revenue Department could 8 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO have made the addition in her assessment only but at any stretch of imagination, the amount of Rs.36,00,000/- cannot be added in the income of the Appellant."
7. From para No.5 it clearly reflects that the Co-ordinate Bench has specifically mentioned the argument raised by the Ld. AR to the effect " that revenue department detected the amount of 36 lacs in the account of Appellant's wife and therefore the Revenue Department could have made the addition in her assessment only but at any stretch of imagination, the amount of Rs.36,00,000/- cannot be added in the income of the Appellant."
8. Para No.6 of the order speaks about the concluding part of the order on the aforesaid submission of the Ld. AR, which for the sake of brevity and ready reference is reproduced herein below.
"6. Having heard the parties and perused the material available on record. We observe that the proceedings u/s 147 have also been initiated against the appellant's wife case, wherein while responding the notices u/s 148 dated 10.01.2014 and 142(1) of the Act issued in the Appellant's wife name, the Appellant responded on behalf of his wife by signing the replies himself. For the sake of brevity and ready reference the said replies are reproduced herein in below.
To The Income Tax Officer Ward-I, Moga Ref: Your Notice U/s 148 dated 10.01.2014 in the case of Mrs. Heather Chathley, Moga for the. Ay 2011 -12 Sir, With due respect and in reference to your above referred letter it is submitted
1. That the Appellant is a foreign national having No PAN. The copies of the passport enclosed herewith for your perusal.
2. That the Appellant is a trained nurse and whenever she came to India she gets Rs.9 M.A.No.30 /Asr/2019
(Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO 10000/- for towards her services to her husbands hospital.
3. That the transactions of Rs. 3600000/- as mentioned in your letter are cash deposited by the husband of the Appellant, which he has received as advance against his property from Mr. Manjit Singh Chahal S/o Ishar Singh Chahal R/o VPO Kokri Kalan, District Moga. The evidence of the transactions may be produced if required.
Yours Faithfully Sd/-
(R.R. Chatley) Husband of Heather Chatley To The Income Tax Officer Ward-I, Moga Ref: Your Notice U/s 142(l)in the case of Mrs. Heather Chathley, Moga for the Ay 2011-12 Sir, With due respect and in reference to your above referred letter it is submitted
1. That the Appellant has already submitted in her previous reply that she is a foreign national married to an Indian citizen. She has no source of income in India for which she is assessed in india. She is not having any PAN.
2. That during the AY 2011-12 she opened a bank account with her husband Mr. Raghu Chatley in HDFC Bank Moga. Her husband Mr. Raghu Chatley deposited a sum of Rs. 3600000/- during the AY 2011-12 out of the proceeds of agreement to sell his property. A declaration form of Mr. Raghu Chatley is attached herewith for your perusal.
3. That as per the agreement as referred in para 2 above Mr. Raghu Chatley entered into an agreement to sell his property and received Rs. 5000000/- from Mr. Manjit Singh Chahal S/o Ishar Singh, VPO Kokri Kalan, Tehsil & Distt Moga. Mr. Manjit Singh entered into such agreement on behalf of Haijit Singh S/o Kartar Singh resident of VPO Kokri Kalan, Distt Moga, presently residing at 79 Middleton Avenue, Greenford Middlesex UB6 8BG United Kingdom.10 M.A.No.30 /Asr/2019
(Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO Mr. Manjit Singh Chahal, given such amount of Rs. 50.00 Lacs to Mr. Raghu Chatley out of the proceeds of sale of agricultural land which belongs to Mr. Haijit Singh, Indeijit Singh and Mr. Chahal as their Attorney.
The copies of agreement to sale, GPA, Jamabandi and Sale deed of land and an affidavit of Mr. Manjit Singh Chahal are enclosed herewith for your perusal.
4. That a copy of a certificate from Notary Public Adv. Kewal Krishan Gupta, with whom the agreement to sale is registered is also enclosed herewith.
5. That keeping in view of the above it is evident that the deposit of Rs. 3600000/- in the Ay 2011-12 does not belong to the Appellant but of her husband. The source of such deposit and the source of the source is duly explained along with all evidences relevant for you for the assessment purpose. In this regard you are requested to do the needful and oblige.
It your goodself require any other information, kindly do the needful.
Yours Faithfully.
Sd/-
(R.R. Chatley) Husband of Heather Chatley.
6.1 In the aforesaid replies, the Appellant in his wife's assessment proceedings before the assessing officer has admitted that the Appellant's wife is a foreign national having no PAN and is a trained nurse and whenever she came to India she gets Rs. 10000/- for towards her services to her husband's hospital. That the transactions of Rs. 3600000/- as mentioned in your letter are cash deposited by the husband of the Assessee, which he has received as advance against his property from Mr. Manjit Singh Chahal S/o Ishar Singh Chahal R/o VPO Kokri Kalan, District Moga. That during the AY 2011-12 she opened a bank account with her husband Mr. Raghu Chatley in HDFC Bank Moga. Her husband Mr. Raghu Chatley deposited a sum of Rs. 3600000/- during the AY 2011-12 out of the proceeds of agreement to sell his property. A declaration from Mr. Raghu Chatley is attached herewith for your perusal. That as per the agreement as referred in para 2 above Mr. Raghu Chatley entered into an agreement to sell his property and received Rs. 5000000/- from Mr. Manjit Singh Chahal S/o Ishar Singh, VPO Kokri Kalan, Tehsil & Distt Moga. Mr. Manjit Singh entered into such agreement on behalf of Haijit Singh S/o Kartar Singh resident of VPO Kokri 11 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO Kalan, Distt Moga, presently residing at 79 Middleton Avenue, Greenford Middlesex UB6 8BG United Kingdom. Mr. Manjit Singh Chahal, given such amount of Rs. 50.00 Lacs to Mr. Raghu Chatley out of the proceeds of sale of agricultural land which belongs to Mr. Haijit Singh, Indeijit Singh and Mr. Chahal as their Attorney. The copies of agreement to sale, GPA, Jamabandi and Sale deed of land and an affidavit of Mr. Manjit Singh Chahal are enclosed herewith for your perusal. That a copy of a certificate from Notary Public Adv. Kewal Krishan Gupta, with whom the agreement to sale is registered is also enclosed herewith. Keeping in view of the above it is evident that the deposit of Rs. 3600000/- in the Ay 2011-12 does not belong to the Assessee but of her husband. The source of such deposit and the source of the source is duly explained along with all evidences relevant for you for the assessment purpose. In this regard you are requested to do the needful and oblige.
From the replies, it clearly reflects that the appellant categorically taken the stand that amount of Rs.36 lacs for the Asst. Year: 2011-12, does not belong to the Appellant's wife but belongs to the Appellant himself. From the categorical acceptance on the part of the Appellant, the argument to the effect that as the amount of Rs. 36 Lakhs was found in the accounts of the Appellant's wife by the revenue department therefore could have been subjected to addition in the Appellant's wife assessment only, is devoid of merits and hence rejected.
6.2 The order passed by the Ld. CIT(A) is ex-parte on non- appearance of the Appellant and in impugned order it was observed by the Ld. CIT(A) that from the above sequence of events it can be seen that neither the appellant nor his counsel attended the hearing on each occasion although he has been issued notices for hearing on various dates, which have been duly served also. It was further observed that appellant had also failed to file any written submissions in support of various grounds of appeal. Further as the appellant has not availed any of the opportunities allowed to him to represent the case, therefore in her opinion, the Appellant is not interested in pursuing the appeal matter and has to say nothing in the matter in addition to grounds of appeal taken by him.
However, we observe from the dates of hearing as mentioned in para No.4 of the impugned order, the Appellant on 20.12.2017, 22.01.2018 & 06.09.2018 attended the appellate proceedings and also filed written submissions and paper book, therefore the observations of the Ld. CIT(A) to the effect that the appellant has not availed any of the opportunities allowed to him to represent the case and also failed to file any written 12 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO submissions in support of various grounds of appeal are contrary to the facts on record wherein it reflects that the Appellant had filed written submissions and paper book and it is also a fact that the Appellant had raised sole ground of appeal therefore filling of written submissions in support of various grounds of appeal as observed, did not arise. Hence, for the end of justice, we feel it appropriate to remand back this case to the file of the Ld. CIT(A) to decide afresh the appeal of the assesse while affording reasonable opportunities of being heard. It is suffice to say that the Appellant shall co-operate with the appellant proceedings and shall appear as and when required by the Ld. CIT(A) and in case of default the Ld. CIT(A) at liberty to dispose of the appeal on merit ex-parte. As the Ld. CIT(A) has passed the order ex-parte therefore, we are not adverting to the other grounds/issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above.
6.3 We clarify that the Appellant did not raise the grounds No.1 & 2 for want of assessment order of his wife, reasons recorded u/s 147 and other relevant documents thereto, as we have remanded the case to the file of Ld. CIT(A) for decision afresh therefore the Appellant shall be at liberty to agitate the original ground of appeal as raised earlier before the Ld. CIT(A)."
9. It is a matter of fact that the Co-ordinate Bench while passing the order also recorded the filing of replies and stand taken by the assessee in his wife's case and the peculiar facts are matter of record as well, because the same also mentioned by the Assessing Officer in the assessment order dated 24.10.2018, therefore, the contention of the Ld. AR to the effect that even otherwise while commenting upon the merits, the ITAT only considered the submissions of the assessee made before the ITO and reproduced the same in para No.6-7 of the order without confronting the same to the undersigned counsel, does not seems to be logical and hence untenable because it is a matter of record already scribed in the assessment order, therefore, need for confrontation not necessitated and the 13 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO tribunal is empowered to take the judicial note of the same, which is the instant case has been taken.
10. With regard to the contention of the Ld. AR to the effect that no addition can be made u/s 68 of the Act unless there is a credit in the books of accounts of the assessee.
11. In our considered view one person can not travel on two boats at a same time, however in the instant case the Asseeee tried to take two inconsistent stands therefore the tribunal on the basis of material available on record realised that since the assessee has taken the clear-cut stands in his wife's assessment proceedings that the amount deposited in his wife's account belongs to the assessee, which the assessee has received as advance against his property from the buyer and in reply in response to notice u/s 142(1) of the Act in his assessee's wife case, specifically admitted that the deposit of Rs. 36 lacs in the Asst. Year: 2011-12 does not belongs to assessee's wife but belongs to the assessee only therefore, the co-ordinate bench was constrained to deal with the contrary contention raised and new stand taken by the assessee which was inconsistent to record and admission made in his wife assessment proceedings and held the same as devoid of merit and unsustainable.
12. We also realize that while considering the peculiar facts and circumstances to the effect that the assessee though filed its reply but did not appear regularly before the Ld. CIT(A), therefore, on the basis of reply the Ld. CIT(A) decided the appeal of the assessee as ex-parte, hence, in that eventuality and in peculiar facts and circumstances of the case and for the ends of justice without going into further controversy and 14 M.A.No.30 /Asr/2019 (Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO deciding the case on merit and other grounds/issues raised by the assessee, the Co-ordinate Bench remanded the case to the file of the Ld. CIT(A) for decision afresh and in the order it was specifically mentioned by the Co-ordinate Bench in the last Para No.6.2 of the order that as the Ld. CIT(A) has passed the order ex- parte therefore, we are not adverting to the other grounds/ issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above.
13. Further the claim of the assessee is that the Co-ordinate Bench did not consider the judgment of Supreme Court in the case of Commissioner Of Income Tax, Salem Vs K. Chinnathamban (2007) 292 ITR 681 (SC) while deciding the appeal . The assessee has also filed copy of the judgment of the jurisdictional High Court passed in the case of R.M. Export vs. CIT [2014] 264 CTR 206 (P&B) wherein it was held that non-consideration of the decision of Hon'ble Supreme Court or the Jurisdictional High Court can be said to be a mistake apparent from the record which can be rectified u/s 254(2). We have already mentioned the facts and given thoughtful consideration to issue raised by the assessee. In our considered view, the courts including tribunal are bound to follow the judgments of the higher courts in case the it decides the case on merits. As in this case considering the peculiar facts, impugned order has been quashed and case is remanded back to the Ld. CIT(A) for decision afresh with specific direction that Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above, therefore as per our considered view, no error seems to be apparent on record which requires any rectification as sought for by the Assessee.
15 M.A.No.30 /Asr/2019(Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO 13.1 Even we have failed to understand as to what prejudice has been caused to the assessee and what error is apparent from the record which requires rectification because at the time of passing order under rectification, no order survives against the assessee and the tribunal in view of contrary material available on record and which is not denied by the assessee but in fact admitted by the assessee, has dealt with inconsistent stand only but not otherwise and left it open to the Ld. CIT(A) to decide afresh without being influenced by any observation made in its order. Even liberty was given to the Asseeee to agitate the original ground of appeal as raised before the Ld. CIT(A).
13.2 The Apex Court in the case of CIT vs. Karam Chand Thapar & Br. P. Ltd (supra) clearly held that "It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are- perverse. The Hon'ble Delhi High Court in the case of Ras Bihari Bansal Vs. CIT (supra) on the scope of rectification u/s 254(2) of the Act, has held It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act.
16 M.A.No.30 /Asr/2019(Arising out of ITA No.645 /Asr/2018 ) Raghu Raj Chethley, Moga vs. ITO Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section." Hence coming to instant case on the aforesaid analyzations, the inference can be drawn that in this case, no mistake is apparent from record which could warrant rectification.
14. In the result, the Miscellaneous Applications filed by the assessee stands dismissed.
Order pronounced in the open Court on 29.10.2019.
Sd/- Sd/-
(B.R.BASKARAN) (N.K.CHOUDHRY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 29.10.2019
/PK/ Ps.
Copy of the order forwarded to:
1. The Appellant
2. The Respondent
3. The CIT
4. Then CIT(Appeals)
5. SR DR, I.T.A.T. Amritsar
6. Guard File
True Copy
By Order