TMI Blog2020 (10) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... n the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. Admittedly, during the course of hearing before the Bench on 23.07.2019, neither the Ld. counsel nor the Ld. DR made any mention of Circular No. 17 of 2019 dated 18.08.2019. As mentioned earlier, it is not a stand-alone Circular; it is to be read in conjunction with CBDT Circular No. 3 of 2018. Circular No. 3 of 2018 dated 11.07.2018 also mentions at para 10 that adverse judgments relating to six issues should be contested on merits notwithstanding that the tax entailed is less than the monetary limits specified in para 3 therein or there is no tax effect, which obviously requires long drawn process of reasoning. In the impugned order, there is no trace of patent, manifest and selfevident error which can be said to be an error apparent on the face of the record .What the applicant wants is a review of the order passed by the Tribunal, which is not permissible under the Act. Not a single error in the impugned order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Ld. counsel explains that this Circular was issued by the CBDT after the date of hearing (23.07.2019) in the present case but before the date of pronouncement (18.10.2019) of the order by the Tribunal and in the present case the penalty u/s 271(1)(c) for the AY 2004-05 was ₹ 27,20,000/- i.e. below ₹ 50,00,000/-. Relying on the order of the Tribunal in the case of ITO v. Dinesh Madhavlal Patel (2019) 108 taxmann.com 211 (Ahd-Trib.), the Ld. counsel submits that it is observed therein that the Circular dated 18.08.2019 is not a stand-alone Circular; it is to be read in conjunction with CBDT Circular No. 3 of 2018 and all it does is to replace paragraph Nos. 3 5 of the said Circular; clearly all other portions of the Circular No. 3 of 2018 have remained intact ; having so observed the Tribunal held that the relaxation in monetary limits for Departmental appeals vide CBDT Circular dated 18.08.2019 shall be applicable to the pending appeals, in addition to the appeals to be filed henceforth. Thus the Ld. counsel submits that the appeal was pending between the date of hearing and date of pronouncement of the order ; this is because till the appeal is disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 5,45,17,923/-. The AO completed the assessment u/s 143(3) on 23.11.2006 at a total income of ₹ 5,74,26,842/-. Subsequently, it was revised u/s 251 to income of ₹ 5,67,92,399/-. A search u/s 132(1) was conducted on 30.05.2008 in the business and office premises of Dorf Ketal group. As a result of the search, the group declared undisclosed income of ₹ 7.54 crores for various assessment years in the hands of the Company and its directors and their spouses in addition to the regular income. Consequently, the assessee filed return of income on 12.02.2009 in response to notice u/s 153A dated 14.11.2008 issued and served by the AO. In the order u/s 143(3) r.w.s. 153A dated 30.12.2010, the AO arrived at a total income of ₹ 6,85,90,913/-. The AO also initiated penalty proceedings u/s 271(1)(c) of the Act. In the impugned order, we have stated at para 7.5 the following: 7.5 As mentioned earlier, during the course of assessment proceedings the assessee claimed additional depreciation of ₹ 75,80,338.16/- [₹ 2,14,87,143.57/- in original return and ₹ 2,90,67,481.73/- in revised return] for AY 2004-05. Similarly, it claimed excess dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004-05 and AY 2005-06, the assessee re-worked its claim of depreciation for AY 2007-08 to AY 2014-15 before the Settlement Commission and as a result, the revised claim of depreciation on the basis of re-grouping of assets stood withdrawn. Therefore, we set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a de novo order after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence regarding the claim of additional depreciation of ₹ 75,80,338.16/- on account of reclassification of certain assets during the year under consideration. As the matter has been restored to the file of the AO, we are not adverting to the case laws relied on by both sides. Facts being identical, our decision for the AY 2004-05 applies mutatis mutandis to AY 2005-06. 9. In the result, the appeals are allowed for statistical purposes. 4.1 There is no dispute that the Circular dated 18.08.2019 is not a standalone Circular; it is to be read in conjunction with CBDT Circular No. 3 of 2018 and all it does is to replace paragraph Nos. 3 5 of the said Circular; clearly all other portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 254(1) by the Tribunal could be rectified? 4.4 It is pertinent to mention here that Circular No. 3 of 2018 dated 11.07.2018 also mentions at para 10 the following : 10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax entailed is less than the monetary limits specified in para 3 above or there is no tax effect: a. Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or b. Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or c. Where Revenue Audit objection in the case has been accepted by the Department, or d. Where addition relates to undisclosed foreign income/undisclosed foreign assets (including financial assets)/undisclosed foreign bank account. e. Where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ED/DRI/SFIO/Directorate General of GST Intelligence (DGGI). f. Cases where prosecution has been filed by the Department and is pending in the Court . 4.4.1 Therefore, Circular No. 3 of 2018 dated 11.07.2018 would not be applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out any mistake apparent from the record. A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. This view is supported by the decision of the Hon ble Supreme Court in T.S. Balaram, ITO v. Volkart Bros., (1971) 82 ITR 50 (SC), Master Construction Co. P. Ltd. v. State of Orissa, AIR 1966 SC 1047, Karam Chand Thapar Bros. (Coal Sales) Ltd. v. State of U.P. (1976) Tax LR 1921, 1927 (SC) and CCE v. ASCU Ltd., (2003) 9 SCC 230, 232. We may refer here to the decision in ACIT v. Saurastra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC), wherein the Hon ble Supreme Court relying on its decision in Patel Narshi Thakershi Ors. vs. Pradyumansinghji Arjunsinghji (1971) 3 SCC 844, Hari Vishnu Kamath vs. Syed Ahmad Ishaque (1955) 1 SCR 1104, Satyanarayan Laxminarayan Hegde Ors. vs. Mallikarjun Bhavanappa Tirumale (1960) 1 SCR 890 and Syed Yakoob vs. K.S. Radhakrishnan Ors. (1964) 5 SCR 64A held that : Patent, manifest and self-evident error which does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 dated 11.07.2018 also mentions at para 10 that adverse judgments relating to six issues should be contested on merits notwithstanding that the tax entailed is less than the monetary limits specified in para 3 therein or there is no tax effect, which obviously requires long drawn process of reasoning. In the impugned order, there is no trace of patent, manifest and selfevident error which can be said to be an error apparent on the face of the record .What the applicant wants is a review of the order passed by the Tribunal, which is not permissible under the Act. 4.7 In fact, not a single error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. The Hon ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji (AIR 1970 SC 1273) that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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