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2015 (5) TMI 577

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..... nder section 254(2) of the Income Tax Act. The Hon’ble Bombay High Court in the case of ‘Commissioner Of Income-Tax vs Ramesh Electric And Trading Co.’ 1993 (1992 (11) TMI 32 - BOMBAY High Court), while relying upon the decision of ‘T. S. Balaram, ITO v. Volkart Brothers’ [1971 (8) TMI 3 - SUPREME Court] and further relying upon the decisions of the various High Courts has categorically held that the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. Failure by 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 and under such circumstances the Tribunal has no jurisdiction under section 254(2) to pass the second order. - Decided against assessee. - MA No.21/M/2015 - - - Dated:- 15-4-2015 - SHRI N.K. BILLAIYA AND SHRI SANJAY GARG, JJ. For The Assesse .....

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..... is not applicable to the facts of the present case. E. The Hon ble ITAT failed to consider various decisions relied upon by the Assessee. 2. The hearing of the matter in this case was completed on 05.08.2014 and the order was pronounced on 10.10.14, which is a matter of record. The contention raised by the assessee vide para A of the application is that the order was pronounced after the prescribed period of limitation as prescribed under rule 34(5)(c) of the Income Tax (Appellate Tribunal) Rules, 1963. For the sake of clarity, the said rule 34(5) is reproduced as under: 34 .. (5) The pronouncement may be in any of the following manners :- (a) The Bench may pronounce the order immediately upon the conclusion of the hearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a date for pronouncement. (c) In a case where no date of pronouncement is given by the Bench, every endeavour shall be made by the Bench to pronounce the order within 60 days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of exceptional and extraordinary cir .....

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..... iod , his occupation in some other work of equal importance as may be entrusted by the Hon ble President of the ITAT or due to the reason that the concerned Member/Members could not spare time because of hearing or in making decision in any other factually lengthy or involving complicated issue or of the nature which require a lot of time to get to the conclusion of the matter would also fall within the purview of the above stated phrase. It cannot be assumed that such exceptional and extraordinarily circumstances of the case would mean happening of any event which is never heard or seen or which is rarely seen to happen. 4. We may point out here that as per the sub section (5) of section 255 of the Income Tax Act, the Tribunal has the power to regulate its own procedure for the discharge of its functions. This Tribunal, thus, has devised its own procedure/conventions for the proper discharge of its functions. One of the conventions/procedures so as to ensure quick disposal of the cases is concerned, every month the detail of the cases pending for pronouncement beyond the period of 30 days/ one month is sought through the registry by the Hon ble President and the reasons for the .....

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..... eriod of 60 days and in case of exceptional circumstances, it may be pronounced within a further period of 30 days. The decision relied on by the ld. Sr.Counsel for the assessee for the assessee also directs that the order should be pronounced within a period three months from the date on which the case is closed for judgment. It is pertinent to note that in the case in hand, there are certain developments with respect to the long leave and transfer of one of the Member constitution the Bench who have heard the appeal. It is transpired from the record that one of the Members Shri D.K. Shrivastava, AM, seating in the Beach who heard the appeal of the assessee was transferred from Mumbai Benches to Ahmedabad Benches of this Tribunal. Therefore, it appears that due to transfer of one of the Members of the Bench who have heard the appeal, there exists some extra ordinary circumstances which lead to the delay in pronouncement of the order. In the absence of any tangible material, glaring facts and circumstances of the case to show that by the reason of delay in pronouncement of the order, the Bench has ignored or failed to consider material facts or legal point of argument of the assess .....

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..... s not only considered the submissions of the assessee but has given a categorical finding on all of the issues which were raised before the Tribunal by the ld. counsel for the assessee. Neither any new fact nor any law has been brought by the ld. counsel for the assessee before us, which may be said to have escaped the attention of this Tribunal while deciding the appeal of the assessee on merits vide impugned order. This Tribunal has no jurisdiction to recall or review its order passed on merits while dealing with an application under section 254(2) of the Income Tax Act. If the assessee has any grievance against the impugned order, proper course to agitate the same is by filing an appeal before the next appellate authority but not with the present application under section 254(2) of the Income Tax Act. The Hon ble Bombay High Court in the case of Commissioner Of Income-Tax vs Ramesh Electric And Trading Co. 1993 203 ITR 497 (Bom.), while relying upon the decision of the Hon ble Supreme Court in the case of T. S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50 and further relying upon the decisions of the various High Courts has categorically held that the power of rectifica .....

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