TMI Blog2020 (2) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department, accordingly the same are dismissed. - M.A. Nos. 147 & 148/Chd/2019 ( In ITA Nos.490 & 491 /Chd/2018) - - - Dated:- 7-1-2020 - Shri. N.K.Saini, VP Shri Sanjay Garg, JM Assessee by : Shri Ashwani Kumar, CA Revenue by : Shri Ashok Khanna, Sr. DR Order N.K. Saini, These two Miscellaneous Applications arising out of the common order dt. 22/04/2019 in ITA No. 490 491/Chd/2018 for the A.Y s 2013-14 2014-15 have been filed by the Department. 2. The common contention in both these Miscellaneous Applications read as under: That a search u/s 132 of the Income Tax Act, 1961 was conducted at the residential premises of the directors of the company on 24.10.2013. The assessment in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r until and unless prior approval is taken from the concerned Joint Commissioner of Income Tax(JCIT). The use of word shall make it mandatory to take the prior approval of the JCIT/Additional CIT before passing the order imposing the penalty under section 271AAB of the Act. In the present case it is crystal clear from the penalty order passed by the Assessing officer that the order was passed on 29/09/2016 while the approval from the Additional CIT, Range Ludhiana was accorded vide letter No. 1036 dated 30.09.2016, which clearly established that the penalty order was passed by the Assessing Officer on 29/09/2016 before taking the approval from the concerned Additional CIT,JCIT. Therefore, the penalty order passed by the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date mentioned in penalty order (final order Date of service M/s Sportking India Ltd. 2013-14 29/09/2016 29/09/2016 30/09/2016 29/09/2016 30/09/2016 6. That it may also be noted that in the last para the penalty order has a clear mention of dispatch no and date of JCIT's letter conveying the approval u/s 274(2)(b) of the Income Tax Act, 1961 which cannot be mentioned a day before of its issuance by JCIT. Moreover, the penalty order and relevant notice of demand has been served upon assessee on 30.09.2016 i.e. the day on which approval was issued by JCIT and also before expiring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the Hon'ble Calcutta High Court while deciding the matter of Mulchand Rampuria Vs ITO(2001)252 ITR 758(Cal) has held that 'after enactment of section 292B which came into force on 01.10.1 975, no notice shall be deemed to be invalid merely by reason of any mistake, defect or omission therein if the notice is in substance and effect in conformity with or according to the intent and purpose of the Act. 9. That the ratio of this case is squarely applicable on the facts of the instant case also wherein, the substance and effect of the penalty order is in conformity of the provision of the Act and as such the inadvertent mistake is covered by the provision of section 292B of the Income Tax Act, 1961. In the light of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income Tax, Central Range on 30/09/2016 and the order dated 22/04/2019 was passed after considering those facts on record, so there is no mistake apparent from the record for the purpose of rectification under section 254 of the Act. In the present case it appears that the Department seeks the review of the order dt. 22/04/2019 in ITA Nos. 490 491/Chd/2018 for the A.Ys 2013-14 2014-15 respectively. It is well settled that a mistake apparent from the record can be rectified under section 254 of the Act, however the Tribunal has no power to review its own order. 5.1 On a similar issue the Hon'ble Madhya Pradesh High Court in the case of CIT Vs. Kedia Leather and Liquor Ltd. reported in (2007) 293 ITR 95 held as under : Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is possible that the prerequisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall and review of the order sought to be rectified Otherwise, what cannot be done directly by seeking a review of an order can. be achieved indirectly, by seeking a rectification of that order. This is even more significant in the light of the fact that under the Act there is no express power given to the Tribunal to review. 5.3 Similarly in the case of CIT Vs. Hindustan Coca Cola Beverages P. Ltd. reported in (2007) 293 ITR 163(Delhi), the Hon'ble Delhi High Court held as under: Under section 254(2) of the Income Tax Act, 1961, the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
