TMI Blog2021 (12) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. Therefore, the Tribunal cannot review its own order in the proceedings under section 254(2). The case law relied upon by the DR on this point are binding and there is no quarrel on this issue however, the failure to consider an important fact or contention raised during the hearing would certainly be a mistake apparent from record as the said relevant fact is likely to effect the decision on an issue. Non consideration of such a crucial and relevant fact and point out which is going to influence the decision is an apparent mistake from record requires to be rectified under section 254(2) - DR has also relied upon the various decisions on the point that the assessee has not raised any objection regarding jurisdiction of the AO during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee has submitted that in the appeal in ITA No. 162/Alld/2019, the assessee has raised an additional ground challenging the validity of selecting the case of the assessee under compulsory scrutiny based on incomplete survey dated 06.01.2021. The learned AR has further submitted that while deciding the additional ground, this Tribunal has presumed that the statement of the assessee recorded under section 131 by the Assessing Officer on 27.01.2012 is part and partial on survey proceedings whereas the correct fact is that the Assessing Officer was not authorized officer to carry out survey under section 133A of Income Tax Act. He has referred to the authorization for survey dated 06.01.2012 and submitted that one Sri. K.N. Sonkar AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he survey and therefore, in the absence of any approval by the competent authority, the case does not fall in the compulsory scrutiny assessment criteria. He has relied upon the judgment of Hon'ble Jurisdictional High Court in the case of Commisisoner of Income Tax vs. Rajiv Sharma 336 ITR 678 and submitted that the Hon'ble High Court has held that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. The learned AR has also relied upon various decisions wherein it is held that the Tribunal having lost sight of material fact at the time of passing the order amounts to an error / mistake apparent from record which could be rectified unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 143(2) after the completion of the assessment as the assessee has not raised any objection during the assessment proceedings provided so under the provisions of section 124(3) of the Income Tax Act. Therefore, the ground taken by the assessee challenging the jurisdiction of the Assessing Officer is otherwise not maintainable. He has supported the impugned order of the Tribunal. 3. I have considered the rival submissions as well as the relevant material on record. In the Misc. Application, the assessee has mainly pointed out the mistake in the impugned order with respect to the additional ground raised by the assessee. The Tribunal has decided the additional ground against the assessee by observing in para 8 of the impugned order as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. The same is dismissed. Ground no. 1 of the original grounds is general in nature and does not require any specific adjudication. 4. Thus, it is clear that the Tribunal has considered the statement recorded by the Assessing Officer under section 131 on 27.01.2012 as part and partial of the survey proceedings and deemed the conclusion of the survey proceedings as on the date of the said statement instead of the date of survey itself. At the time of deciding this issue, the Tribunal presumed that the Assessing Officer has conducted the survey as well as recorded the statement of the assessee under section 131 in the post survey enquiry however, the fact now brought to the notice of the Tribunal is that the officer who was authoriz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and there is no quarrel on this issue however, the failure to consider an important fact or contention raised during the hearing would certainly be a mistake apparent from record as the said relevant fact is likely to effect the decision on an issue. Non consideration of such a crucial and relevant fact and point out which is going to influence the decision is an apparent mistake from record requires to be rectified under section 254(2) of the Income Tax Act. The learned DR has also relied upon the various decisions on the point that the assessee has not raised any objection regarding jurisdiction of the Assessing Officer during the assessment proceedings and therefore cannot be permitted to raise this issue. It is pertinent to note that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
