Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2016 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (3) TMI 1345 - AT - Income TaxRectification petition u/s 254 - as submitted the Hon’ble Bench has inadvertently remanded the order appeal against by the revenue to the file of the learned CIT(A), whereas after the conclusion of hearing on 16.10.2014, it had pronounced its order dismissing the revenue’s appeal - addition u/s 68 - HELD THAT:- Application has no merit and deserves to be dismissed. We find from the record that the basic submission of the assessee that the order under challenge is “inadvertently” at variance with the pronounced order is wrong on facts as we find on consulting the records that no pronouncement dismissing the appeal of the Revenue was made. Further we find no such recording on record that the revenue’s appeal is dismissed on merits. The hearing in the present case, as is admitted by all concerned, stood concluded on 25.06.2014 when no pronouncement was made. However, while considering the fact that the ld. Sr. Advocate had submitted that consistently the issue has been decided in its favour by the ITAT, this submission was found to be factually incorrect and contrary to record. Accordingly, the appeal was listed for clarification on 22.08.2014 and the hearing was finally concluded on 16.10.2014. In view of the above order dated 22.08.2014 the parties were heard on 16.10.2014 in respect of the above clarification. The ld. Sr. Advocate had addressed the correct factual position on the said date by clarifying on query that the identical issue in 2005-06 and 2006-07 assessment years had been restored by the ITAT to the CIT(A) in the two immediately preceding assessment year. Hence contrary to the submission made earlier on behalf of the assessee that the issue stood concluded consistently in assessee’s favour by the ITAT it was submitted on clarification that infact the issue did not stand concluded in assessee’s favour by consistent orders of the ITAT in the earlier years. Consequently this fact stands addressed in para 6.1 of the order of the ITAT leading to the conclusion drawn requiring that the issue should be restored back to the file of the CIT(A) in para 8 & 8.1. The present case is squarely covered by the exception carved out by the decision of the Hon’ble Supreme Court in Vinod Kumar Singh vs BHU [1987 (11) TMI 385 - SUPREME COURT] as there was no pronouncement that the Revenue’s appeal is being dismissed and there was no order dictated in the open Court dismissing the Revenue’s appeal. Further the exceptional feature why the case itself was required to be re-heard is evident from the order sheet dated 22.08.2014 on which date the clarification was addressed, the merits of which have not been touched upon in the M.A filed by the assessee. Accordingly on consideration of the peculiar facts and circumstances of the case, we find that by filing the M.A. the assessee is infact seeking a Review of the order dated 12.12.2014 as is evident from the arguments advanced on merit and reliance placed on CIT vs Kamdhenu [2011 (12) TMI 394 - DELHI HIGH COURT] in the context of proposition of law in regard to addition u/s 68 of the Income Tax Act. The assessee having failed to point any error apparent on the face of the record, the M.A filed is dismissed. - Decided against assessee.
|