TMI Blog2016 (3) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 COU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to a pronouncement made in the open court would constitute a mistake which is rectifiable. In support of the prayer reliance was placed on CIT vs G.Sagar Suri and Sons [1990] 185 ITR 484 (Del); and CIT vs Kamdhenu 361 ITR 220 (Delhi) 2.1. In support of the Miscellaneous Application reliance was also placed on the affidavits dated 31.12.2014 and 22.12.2014 filed by Shri Ravi Pratap Mall, Advocate and Shri D.B. Jain who had briefed the Senior Advocate and argued the appeal before the CIT(A) respectively. Extracts of these two affidavits are reproduced hereunder for the sake of completeness. Whereas Shri Ravi Pratap Mall avers:- 8. That on 09.09.2014, aforesaid appeal was fixed for clarification and on the aforesaid date it was adjourned to 30.09.2014 and was finally fixed for clarification on 16.10.2014. 9. That on 16.10.2014, Senior Counsel deliberated upon the clarification sought by the Hon ble Bench and after being satisfied with the submissions of the assessee, Hon ble Tribunal in terms of the Rule 34(5)(a) of the Income Tax Appellant Tribunal Rules, 1963, pronounced its order and dismissed the appeal of the revenue. That during the course of hearing, Shri. D.B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in detail by the ITAT in its order dated 12.12.2014 while arriving at a conclusion. Reading out para 8 and 8.1 of the order in toto it was his submission that in the absence of any error being pointed out the petition deserves to be dismissed. The order of the ITAT it was submitted has been passed considering all facts and arguments. No case, it was argued, has been made out by the assessee to show what fact was ignored or was incorrectly recorded. The order it was submitted being complete and final cannot now be Reviewed or re-considered and thus can neither be modified nor recalled. It was submitted that the assessee having failed to address what is the mistake in the order passed by the Tribunal and has only argued that the issue on facts should have been decided in its favour which it was submitted cannot be a ground for a recall in the present proceedings. It was his submission that the Tribunal has brought out clearly the absence of relevant facts on record before the CIT(A) which fact has not been disputed by the assessee. Even today it was argued complete evidence in support of its claim has not been placed on record by the assessee. The findings of the CIT(A) that full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The specific reason on account of which clarification was fixed is set out in the order sheet dated 22.8.2014 and is extracted hereunder from the record:- 22.08.2014 At the time of hearing submissions were made by the Sr.,DR that on identical issue the appeals are pending before the CIT(A) for 2005-06 and 2006-07 A.Years. Before us by the Ld.AR order dated 26.06.2013 in DCIT vs Vatika Township P. Ltd. (which stood merged with M/s Vatika Landbase p. Ltd. whose name was changed to M/s Vatika Ltd. on 28th may 2007 the merger was in terms of scheme dt. 01st April 2004) is relied upon which pertains to 2001-02 A.Year. In 2002-003 and 2003-04 A.Years the issue is stated to have not arisen. The position of 2004-05 A.Year is uncleared. The parties to address the past position on the issue. Fix for clarification on 09th Sep.2014 at 2.30 PM. Inform the parties. Sd/- (J.S.Reddy) Sd/- (Diva Singh) (emphasis provided) 5.2. In view of the above order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as submitted that some evidences are being filed. This position has not been disputed by the assessee in the present proceedings also and is found recorded in para 5.12 of the CIT s order. The said finding has been extracted by the ITAT in the order under challenge and we find that the correctness of this fact has neither been assailed in the present proceedings by the Ld. AR nor had it been assailed at the stage of hearing the appeal. We also note that no effort has been made to place on record any affidavit assailing the finding of the CIT(A). The arguments of the ld. AR specifically taken note of in para 6.1 would demonstrate that the factual position was clarified by the ld. AR by admitting that the issue in the two immediately preceding assessment year was pending before the CIT(A) and not before the ITAT as had been originally argued. It was clarified that the ITAT in the earlier two years had restored the issue back to the CIT(A). These submissions of the assessee which have not been assailed to be incorrect in the present proceedings are reproduced from the order of the ITAT hereunder: 6. The Ld. AR relies upon the order in the case of DCIT vs Vatika Township Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts relatable to the issue were made available to the CIT(A) based on which finding has been arrived at. The specific para is reproduced hereunder:- 5.12. The appellant also filed a detail of payment made by it as compensation and also placed on record copies of some of the documents executed for payment of compensation and cancellation of bookings made by it. 8.1. The said approach of the CIT(A) on facts cannot be upheld. The CIT(A) is necessarily required to look at the complete evidence necessary for arriving at a conclusion. The issue accordingly is restored back to his file. The assessee is granted liberty to place all necessary evidences before the CIT(A) in support of its claim as the same evidently has not been done. The CIT(A) shall thereafter pass a speaking order in accordance with law after duly confronting the same to the AO. (emphasis supplied) 5.4. Having gone through the entire facts on record and the averments made in the affidavits filed alongwith MA, it is evident that the assessee has failed to point out any incorrect fact in the order which has vitiated the conclusion. 5.5. Addressing the legal precedent relied upon by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the order it could not be so. 5.7. Thus, on consideration of the above decision, we are of the view that for the decision to apply, we must first find that the decision on 16.10.2014 was announced in assessee s favour. The position is not so. The reasons why the said conclusion was not arrived at are set out in the order under challenge as the finding arrived at by the CIT(A) for want of full facts was a perverse finding. The position was corrected and the issue was restored back to the said Authority with a direction to arrive at a conclusion considering the complete facts. Noting that full facts were not placed by the assessee itself opportunity to place supporting evidence before the CIT(A) had been provided to the assessee. No infirmity in the direction given or the conclusion arrived at has been pointed out except that according to the assessee the order was pronounced in its favour which on facts is found to be incorrect. 5.8. Having so decided it may not be necessary for us to consider the Rules applicable to pronouncement in the facts of the present case. However, the ld. AR in the affidavit filed by the briefing counsel has relied upon to Rule 34(5)(a) of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench may advance the date of pronouncement and put this information on the notice board and the order shall be pronounced accordingly. (8) In a case where the order cannot be pronounced on the date given, the date of pronouncement may be deferred, subject to subM. rule (5)(c) above, to a further date and information thereof shall be given on the notice board.] 5.9. At the cost of stating the obvious, under the Income Tax Act, 1961 even a written order under section 254(1) can be amended. The powers have been so vested with a view to enable the Tribunal to rectifying any mistake apparent from the record. In the facts of the present case although we have found that there is no mistake apparent on record, we are of the view that it may be relevant to refer to some of the decisions which have addressed the issue of binding nature of an unsigned pronounced judgment. On the question whether an unsigned pronounced judgment is a valid and binding judgment or not there was a divergence of opinion amongst various High Courts. Whereas the High Court of Allahabad, apart from the High Court of Himachal Pradesh and Kerala had taken the view that after judgment is orally pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open Court and even otherwise there was no pronouncement made that the Revenue s appeal was being dismissed. The occasion to issue notice to the parties in the circumstances does not arise. (iii) A learned Single Judge of the Himachal Pradesh High Court in Ramji Dass Vs. Inder. 1975 ILR (HP) 543 while considering the scope and ambit of Order 20, Rule 1 and 3 and Order 43, Rule 31 of the Code held that the act of the Judge in signing and dating the judgment is regarded by law as an act perfecting the judgement. Both Order 20, Rule 30 Order 41, Rule 31 of the Code require the Judge to sign and date the judgement on pronouncement in open Court. The requirement is not a mere formality. It is an act which makes the judgement complete. It was further held that so long as a judgement is not perfected by signing it, it would appear that it can always be withdrawn or altered or modified. Until perfected it is not a final judgement. (iv) In High Court on its Own Motion Vs. Sunder Singh 1986 AIR. (HP) 47 dealing with a situation, where the judgement in civil appeal could not be signed by the Additional District Judge before his death, following the ratio laid down in Ramji Dass Vs. Inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to admission to the Master Course in Law for the Academic Year 1983-84 was heard by a Division Bench of the Allahabad High Court. The Ld. Judges dictated the judgement in open Court, allowing the writ petition directing the University to admit the writ petition. The writ petitioner thereafter, applied for a copy of the judgement and was informed that the matter has again been posted for hearing and would be heard afresh. Initially the same Bench which rendered the judgement re-heard the matter and subsequently, it was posted for hearing before another Division Bench. The other Division Bench before which the writ petition was heard dismissed the writ petition. In the appeal before the Hon'ble Supreme Court, the appellant questioned the judgement of the Second Division Bench on the ground that judgement once pronounced in the open Court by the First Division Bench became operative even without the signature of Ld. Judge and cannot be altered thereafter, and the judgement of the Second Division Bench was unsustainable. 5.11.2. The Hon'ble Supreme Court allowed the appeal in the peculiar facts of the case and set aside the judgement of the Second Division Bench and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effective and the case shall be further heard. There may also be cases - though their number would be few and far between - where when the judgement is placed for signature the court notices a feature which should have been taken into account. In such a situation the matter maybe placed for further consideration upon notice to the parties. If the judgement delivered is intended not be operative, good reasons should be given. 9. Ordinarily judgement is not delivered till the hearing is complete by listening to submission of counsel and perusal of records and a definite view is reached by the court in regard to the conclusion. Once that stage is reached and the court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstances or a review is asked for and is granted. When the judgement is pronounced, parties present in the court know the conclusion in the matter and often on the basis of such pronouncement, they proceed to conduct their affairs. If what is pronounced in court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken. A judgement pronounced in ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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