TMI Blog2014 (3) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... implied power has been recognized for the exercise of powers by the Appellate Tribunal - On the same logic it can be said that the Tribunals which has wide powers in respect of the subject-matter of an appeal before it, can decide any question which is material to the subject matter even though it was not raised - Where particular issue has been omitted to be considered or has not been adjudicated properly or where perverse findings have been recorded in total disregard of the material on record, the Tribunal is competent enough to set aside the order of the lower appellate authority to that extent, although no specific ground is taken for that purpose by the concerned party. Whether a mistake can be pointed out on the part of ITAT even when the assessee did not seek any relief from the Tribunal – Held that:- The Tribunal while reversing the order of Commissioner (Appeals) on the point of validity of notice u/s 148, should have also directed the Commissioner (Appeals) to decide the other grounds on merits - The omission to do so i.e., not restoring the matter to the file of Commissioner (Appeals) and not issuing direction for adjudicating the grounds on merit, therefore, amounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment proceedings u/s. 147 r.w.s. 149 of the Act and hence, the order passed by the Assessing Officer was well within time and not barred by limitation. 3. The Department also submitted that it is a settled proposition in law that when no provision for limitation has been incorporated in the statute, the courts cannot introduce such limitation. In this connection, the Department relied on the decision of the Apex Court in the case of Hindustan Times vs Union of India and Others (order dated 07-01-1998). The assessee pleaded before the Tribunal that the mere fact that the Department has filed appeal against the decision of the Tribunal in the case of AP State Civil Supplies Corporation does not detract from the applicability of the ratio of the said decision to the respondent's case. The assessee also pleaded before the Tribunal that in Paragraph 17.10 of the order in the case of M/s. Mahindra and Mahindra Ltd., 122 DJ 577 (MUM) (SB) the Tribunal held that passing an order u/s. 201(1) and 201(lA) has to be within one year from the end of the Financial Year in which proceedings u/s. 201(1) have been initiated. The assessee also pointed out before the Tribunal that in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The AR submitted that the Special Bench, Mumbai, ITAT held as under in the case of M/s. Mahindra and Mahindra (supra) and drew our attention particularly to the last sentence in paragraph 17.10 of the said order: the completion of proceedings u/s.201(1), that is the passing of the order under this sub-section, has to be within one year from the end of the financial year in which proceedings u/s. 201(1) were initiated. Same time limits for initiation and passing of orders will be valid for the passing of order u/s. 201(1A) also. We hold accordingly. 6. The AR submitted that the Tribunal recorded facts relating to initiation of proceedings u/s. 201(1)(201(lA) in paragraph 3 of its order as per which a survey was carried out in the case of the assessee. This survey was carried out on 03-03-2006 as recorded by AO in 1st para of the order u/s. 201(1)/201(1A). Subsequent to the survey, show cause letter was issued to the assessee seeking various informations. During post-survey enquiries, and analysis of information submitted by the assessee, the Assessing Officer found defaults in TDS for the A.Ys. 2001-02 to 2003-04. Having decided the issue of limitation base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that in the light of the AR's submissions as above, the finding in paragraphs 16 and 17 of the order of the Tribunal constitute a mistake apparent from record. 8. The AR also submitted that though the finding of the Tribunal has ultimately gone against the assessee in ITA No. 1516/Hyd/2008, the decision is based on the finding reached by the Tribunal that the time limit for passing order u/s. 201(1) and 201(lA) is 4 or 6 years, as the case may be, from the end of the relevant assessment year. The assessee has, therefore, filed this petition seeking rectification of the error that has crept in quoting the correct ratio of the decision of the Special Bench in the case of M/s. Mahindra and Mahindra (supra). The AR also submitted that in the light of the submissions in the preceding paragraphs the conclusions drawn in paragraphs 18 and 19 constitute mistake apparent from record and need to be changed. The AR prayed that the Tribunal may recall its common order in ITA No. 1516/Hyd/ 2008, dated 08-08-2013 and pass such further orders as necessary to rectify the mistakes apparent from the record. 8.1 Without prejudice to the above argument, the learned AR submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed for A.Ys. 2002-03 and 2003-04 is not barred by limitation and the appeals filed by the Revenue for these two assessment years were allowed. Now the contention of the AR is that after upholding the order of the AO that the order passed by the AO is within the time limit and thereafter the Tribunal ought to have remitted the issues to the file of the CIT(A) so as to decide the issue on merit as the assessee raised the ground before the CIT(A) with regard to validity of deduction of TDS with reference to payments to newspaper agencies, band width charges, transponders rent, internet charges, software expenses and data circuit rentals. As the CIT(A) cancelled the order passed u/s. 201(1) and 201(1A) itself and he has not gone into the issue whether the assessee is required to deduct TDS u/s. 194C or 194J of the Act, as applicable. 11. We find force in the argument of the assessee's counsel to this extent. As the Tribunal observed that the order passed for the A.Ys. 2002-03 and 2003-04 is within the time limit, it is incumbent upon the Tribunal to remit the issue back to the CIT(A) to decided the same on merit with reference to the issue of TDS deduction. As the Tribunal fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deeksha Suri v. ITAT (1998) 232 ITR 3951; Karan Co. v. ITAT (2002) 253 ITR 131 (Delhi); and CIT v. Vichtra Construction (P) Ltd. (2004) 269 ITR 371 (Del). 12. In view of the ratio of the above decisions, the prayer made by the applicant on the basis of averments made in paras 1 to 6 of miscellaneous application cannot be allowed. 20. On the basis of the observations made in the aforesaid decision, it may be concluded that the powers of the Tribunal are co-extensive with the powers of the assessing officer and that of the first appellate authority and are, in fact, wider powers than those authorities, subject to the limitation that the Tribunal does not have the power to enhance the assessment which power has been specifically conferred upon the Commissioner (Appeals) under section 251(1)(a) of the Income Tax Act and which power has been specifically denied to ITAT under proviso to section 254, which is as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay High Court in the case of Ahmedabad Electricity Co. Ltd. (supra), has been followed and applied in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC). 23.4 The Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC), held that 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. The Hon'ble Supreme Court has held as under: Under section 254 of the Income Tax Act, 1961, 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. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a nontaxable item is taxed or a permissible deduction is denied, there is no reason why the assessee should be prevented from raisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has been held to be an integrated process. 25. Now the next issue is as to whether a mistake can be pointed out on the part of ITAT even when the assessee did not seek any relief from the Tribunal. As observed earlier, in order to effectively adjudicating the issue and the subject-matter, such duty is cast upon the Tribunal. To conclude, direction should be issued to the Commissioner (Appeals) for deciding such issues, as such directions are essentially incidental to the subject-matter and mistake on the part of the Tribunal in not restoring the matter to the Commissioner (Appeals) can be rectified by amending its earlier order. The power to amend being different to the power of review, can definitely be exercised in such a case. 26.3 As observed by the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. (supra), the power of the Tribunal in dealing with the appeals is very wide and while exercising the statutory authority and statutory duty, it has got all powers which are reasonably necessary for the accomplishment of the object intended to be secured. Hence, whereas the Tribunal has no power to recall and review its orders, in view of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission to do so i.e., not restoring the matter to the file of Commissioner (Appeals) and not issuing direction for adjudicating the grounds on merit, therefore, amounted to be a mistake on the part of the Tribunal. 30. In view of the aforesaid obligation and duty of the Tribunal, we have to consider the remedies sought in two parts of this miscellaneous application. On part A, in view of the decision of the Hon'ble Delhi High Court in the cases of Vichtra construction (P) Ltd. (supra); and Mayur Recreational Development Ltd. (supra), we are of the considered opinion that the Tribunal has no power to, rehear, reconsider, recall and review its order under section 254(l) of the Income Tax Act. However, so far as part 'B' is concerned, after considering the scope under section 254(2), relating to power available to the ITAT for rectifying its mistakes, we have to hold that the Tribunal has not only power but legal obligation to amend its order, so as to rectify and cure the mistake found on its part in not restoring the matter to learned Commissioner (Appeals). 32. Thus, while maintaining our order on the legal issue, and without recalling or reviewing the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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