TMI Blog2008 (7) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative, Shri Pradeep Sharma has mentioned that an apparent mistake has been committed by passing an order which is contrary to the pronouncement of a verdict made immediately after the conclusion of the hearing. According to him, the Bench has pronounced the dismissal of the appeal on conclusion of hearing held on 4th June, 2007. However, in the written order, followed thereafter, dt. 28th Sept., 2007, the said appeal of the assessee was allowed. He has pleaded that it is an apparent mistake and such mistake is rectifiable under s. 254(2) of IT Act as held in the case of CIT vs. G. Sagar Suri Sons (1990) 84 CTR (Del) 203 : (1990) 185 ITR 484 (Del). Learned Departmental Representative's second plank of argument was in respect of few merits of the matter; so he has stressed that certain substantive arguments remained to be considered by the Bench such as referred in paras 3, 4 and 5: "3. It is submitted that there are certain fundamental aspects which have remained to be considered in the appellate order. Admission by Shri Omkarmal, in the statement under s. 132(4) of 15th Oct., 2001 wherein he admitted to taking loan on entry basis from the two concerns viz. by M/s Rajs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of study of the files, the Bench thought it proper to release the same for fresh hearing as a part heard case. The Bench wanted to confront both the sides few decisions. The counsel took a preliminary objection that the Tribunal once had pronounced the order, then if taking any contrary decision, would amount to review of the earlier order. Power of review is beyond the jurisdiction of the Tribunal. In this decision, there is a reference of a well-known decision of Hon'ble Supreme Court in the case of ITAT Through President vs. V.K. Agarwal Anr. (1998) 150 CTR (SC) 513 : (1999) 235 ITR 175 (SC) wherein the applicability of rr. 34 and 35 of ITAT Rules, 1963 was discussed. In that context, learned counsel has argued that unless an order of the Bench is not signed by the Members constituting it, the same cannot be termed as an order of the Bench. So, his argument was that mere oral pronouncement could not be held as an order because the basic requisite of an order is that the same should be in writing and duly signed by the sitting Members. According to him, legally speaking, oral pronouncement during the course of hearing is not an order at all, but only an intimation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of Hon'ble apex Court in V.K. Agarwal's case. (iv) Mafatlal Securities Ltd. vs. Jt. CIT. The above decision of Hon'ble Mumbai Bench is almost on the similar facts except that after the note sheet entry, they again heard the parties and passed the final order. In the course of decision observations made in para 10 are very material for our purpose. A copy of the decision was given at the time of hearing. (v) Bansal Trading Co. vs. Asstt. CIT (2002) 76 TTJ (Asr) 234 On the facts similar to our case, the Hon'ble Bench held that the final order being at variance with the oral observations during the course of hearing does not make it rectifiable under s. 254(2) and that the Tribunal is not bound to discuss each and every argument made at the time of hearing. (vi) CIT vs. G. Sagar Suri Sons This decision was cited by the Department in their support. This decision is however distinguishable because it was rendered before the decision of Hon'ble Supreme Court in the case of V.K. Agarwal and that of Delhi High Court in the case of Sudhir Choudhrie. Even otherwise what the decision holds is that there is no question of law involved once it was accepted that there was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . out of the two, one argument has to be approved depending upon the facts and circumstances of this case. To proceed with, at first we deal with the submissions of Shri Sathe that the mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the records itself; decision relied upon was CIT vs. Ramesh Electric Trading Co. (1993) 203 ITR 497 (Bom). According to us, there cannot be two opinions about this proposition but whether the "judgment" in writing which is finally pronounced in the Court after due discussion among ourselves had any error rectifiable under s. 254(2). Without reading the text of a judgment and the reasons recorded therein how a mistake can be pointed out, he has also contended. Thus, the next contention of learned Authorised Representative was that according to him the first pronouncement was merely an expression of opinion or decision but in legal terminology not a "judgment" or an "order" passed by the Court. 6.2 So we have to examine, on the basis of the view expressed in several judicial pronouncements, whether the conclusion pronounced just after the finish of the hearing was a "judgment" or an "o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, duly dated and communicated to the parties. Rather the subsequent passing of the written judgment by us was on the lines of the guidelines of the apex Court decision because a proposed draft order was forwarded to the other respected Member, with whom after due consultation a final decision was arrived at, though may not be in conformity of the pronouncement or even may not be in conformity with the draft order. And thereafter that unanimous decision dt. 28th Sept., 2007 was duly recorded in writing by putting Signatures by us with the date of pronouncement. As also observed by Hon'ble Justices Ranganath Misra and S. Ranganathan, JJ. in Civil Appeal No. 2976 of 1987, dt. 11th Nov., 1987 in the case of Vinod Kumar Singh vs. Banaras Hindu University, with approval quoted "Judges may, not often do, discuss the matter among themselves and reach tentative conclusions. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however, heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court that is what constitutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have to be highlighted. At this juncture, we may also like to mention that another order of the Hon'ble Delhi High Court is also directly staring at our eyes viz. CIT vs. G. Sagar Suri Sons. This order is dt. 16th April, 1990. Therefore, following the rule of precedent, the latest decision of Hon'ble High Court has to be followed by the lower judiciary, therefore, the decision of Hon'ble Court dt. 7th July, 2005 is not only persuasive in nature but it is binding in nature on account of the invocation of Art. 226 of the Constitution of India by the Hon'ble Delhi High Court. Otherwise also the procedural aspect of the pronouncement of a judgment was not the subject-matter of adjudication in the case of G. Sagar Suri Sons. Reverting back to the latest decision of Sudhir Choudhrie, the Hon'ble Court has held as under: "............... We see no reason as to why the practice prevalent in the Courts in relation to dating, signing and pronouncement of judgment should not be fully made applicable to the cases pending before the Tribunal. In our view such a practice would not be opposed by any provisions of the IT Act, on the contrary, the basic rule of law as well as accepted norms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the appellate Court shall at the time when it is pronounced be signed and dated by the Judge or by the Judges concurring therein. Therefore, Order 20 r. 1 of CPC leaves no ambiguity about the contents of a judgment and the manner it is to be pronounced in the Court. Even in Art. 133 of the Constitution of India, the term "judgment" includes a judicial decision given on the merits of the dispute. A judgment is a compendious expression and each one of the parts of this expression bears the same connotation that there is a final adjudication by the Court upon rights of the parties who appear before it. 7. Whatever we have discussed above about the finality of a judgment duly passed and pronounced in the Court; there are exceptions to this general rule. If a judgment is dictated, and pronounced, thereafter a feature is left for consideration or some error has been identified or any mistake is brought to the notice by counsel of either side then in such a situation the Court may give direction that the judgment so delivered would not be effective since (it would) require some correction to remove the patent mistake. Sometimes situation warrants for further hearing, though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and law and thereafter giving conclusion whereby the case of one party is accepted and the other party is rejected, is no judgment in the eyes of law. In other words, the judgment which does not contain the reasons or grounds on the basis of which the Judge has come to his conclusion/decision for passing a judgment and decree on the points in issue or controversy, is vitiated. It is all the more necessary, when the judgment is by the Court of fact and is appealable, to avoid unnecessary delay and protracted litigation. The Supreme Court in Fomento Resorts Hotels Ltd. vs. Custavo Ranato da Cruz Pinto AIR 1985 SC 736, has held in para 27 as under: 'In a matter of this nature where severe contentions, factual and legal are urged in when there is a scope of an appeal from the decision of the Court, it is desirable as well observed by the Privy Council long time to avoid delay and protraction of litigation that the Court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point'." 7.3 Since the Revenue has pointed out that the admission of one Shri Omkarmal as made in the statement under s. 132(4) dt. 15th Oct., 2001 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
