TMI Blog2006 (10) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on the facts of the present case we are of the view that there was no mistake apparent from the record in respect of its earlier order dated July 12, 2002, warranting the exercise by the Tribunal of its power of rectification u/s 254(2) of the Act, we do not consider it necessary to discuss in detail the cases cited by the counsel for the assessee. We may nevertheless refer to the decision rendered by us today in CIT v. Honda Siel Power Products Ltd.[ 2006 (10) TMI 67 - HIGH COURT, DELHI] where we have given detailed reasons explaining the narrow scope of the power of rectification u/s 254(2). Thus, we are of the view that the impugned order of the Tribunal dated September 13, 2004, cannot be sustained in law and it is accordingly set aside. The appeal is allowed with no order as to costs. - VIKRAMAJIT SEN AND DR. S. MURALIDHAR, JJ. For the Appellant : R.D. Jolly, Adv For the Respondent : Ajay Vohra and Kavita Jha, Advs. JUDGMENT S. MURALIDHAR, J. 1. This appeal is directed against an order dated 13.9.2004 passed by the Income Tax Appellate Tribunal, New Delhi (`ITAT') recalling its earlier order dated 12.7.2002 for the limited purpose of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definitely answered by the ITAT against the assessed. Relying on the judgments in Commissioner of Income Tax v. K.L. Bhatia [1990] 182 ITR 361(Delhi) and Commissioner of Income Tax v. Income Tax Appellate Tribunal [2006] 155 Taxman 378 (Del) he urges that the ITAT was not justified in recalling its order dated 12.7.2002 in relation to ground No. 7 and that this was beyond the scope of Section 254(2) of the Act. 5. In reply it is submitted by Mr. Ajay Vohra, learned Counsel for the respondent that the assessed is not disputing that it is an assessed in default or that it is liable to pay interest as determined by the AO. However, he submits that the alternate plea raised in Ground 7 of the memo of appeal before the ITAT, to the effect that the respondent was not liable to pay the short deduction of tax at all, was not dealt with by the ITAT. This, according to him, was a mistake apparent from the record warranting rectification under Section 254(2). He also placed reliance on a Circular dated 29.1.1997 issued by the CBDT in this regard. He has placed reliance upon the decisions of the Madhya Pradesh High Court in CIT v. ITAT [1988] 172 ITR 158(MP) , Sardar Machhisingh v. CIT [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the payee has settled his tax liabilities and has obtained a refund from the Department. Reliance is placed on the judgment of the Hon'ble Madhya Pradesh High Court in the case reported in 137 ITR 230 (supra) and the decision of the same court in the case reported in 140 ITR 818 (supra). As rightly contended by the learned Departmental Representative Section 192 pertains to payment of salary and an element of estimate crops in since salary includes various types of perquisites whose actual quantification requires interpretation of relevant Rules provisions, but in so far as Section 194-I is concerned, the amount is determined and the element of estimate is absent. As already stated, TDS provisions are meant to ensure payment while earning the income and any postponement, delay or default stipulated by law would mean delay in a particular amount reaching Govt. coffers and that is why payment of interest has been provided under Section 201(1A) and in so far as the shortfall is concerned, the assessed is treated to be in default vide Section 201(1). The two decisions of the Hon'ble Madhya Pradesh High Court (supra), in our opinion, would not apply as these were situatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice that in the present case the assessed filed an appeal against the order dated 12.7.2002 of the ITAT and the appeal was dismissed by this Court on 21.5.2004. The order dated 12.7.2002 of the ITAT thus became final. Mr. Vohra candidly stated that the point based on Ground No. 7 was not taken up in the appeal in this Court. The reason for this, according to him, was that this Court would not have permitted the assessed to urge such ground in the absence of decision thereon by the ITAT. We do not agree with this understanding by the assessed of the scope of an appeal under s. 260A. Where it is shown to this Court in appeal that a ground that has been specifically raised in the memo of appeal before the ITAT has not been considered by it, that can persuade this Court, if the circumstances so justify, to remand the case to the ITAT for consideration of that ground. What clearly appears to have happened here is that having failed to urge this ground in the appeal before this Court, the assessed took a chance by filing a rectification application on that very ground before the ITAT after the dismissal of the appeal by this Court and nearly two years after the ITAT's first order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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