TMI Blog2023 (8) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... g that appeal was wrongly dismissed u/s 268A(1) r.w.s. 268A(4) of IT Act, after holding that palpable error had crept in, inasmuch as Tribunal failing to see that appeals filed could not have been dismissed by Tribunal merely on the ground that financial implication involved is below 50 lacs especially when subject matter fell within the exception Clause 10(c) of CBDT Instruction No.03/2018 dated 11.07.2018 r/w Instruction No.17/2019 dated 08.08.2019, that the audit objection has been accepted. The fact, that Tribunal missed seeing this obvious and palpable mistake was certainly a cause giving rise to rectification and; therefore, this Court has no hesitation to hold that the power of rectification exercised by Tribunal u/s 254(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as IT Act ) assailing final order dated 27.05.2022 passed by Income Tax Appellate Tribunal, Jabalpur Bench, Jabalpur (for short Tribunal ) in M.A. Nos.13 14/JAB/2020 arising out of ITA Nos.67 69/JAB/2019 as regards Assessment Years 2009-10 and 2010-11, proposes following substantial questions of law: (i) Whether in the facts and circumstances of the case the Tribunal is correct in law in entertaining a rectification application that does not point out the specific mistake in the order of the tribunal? (ii) Whether the revenue can be permitted to seek rectification of the order on any ground that was not substantiated at the time of original hearing of appeal in rectification proceedings? (iii) Whether the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Appellate Tribunal vested u/S 254(2) of the IT Act to rectify palpable mistake. The said question is no more res integra in view of Apex Court decision of T.S. Balaram, Income Tax Officer vs. Volkart Brothers, 1971 AIR SC 2204 whereby the Apex Court while explaining the jurisdictional purviews of power of rectification held thus: 4. From what has been said above, it is clear that the question whether s. 17(1) of the Indian IT Act, 1922, was applicable to the case of the first respondent is not free from doubt. Therefore, the ITO was not justified in thinking that on that question there can be no two opinions. It was not open to the ITO to go into the true scope of the relevant provisions of the Act in a proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent from the record of the assessments of the first respondent. Further, the Apex Court in a recent decision rendered in Commissioner of Income Tax vs. Reliance Telecom Ltd., (2022) 440 ITR 1 (SC), especially in parap 3.2, 5 and 6 held thus: 3.2 Having gone through both the orders passed by the Tribunal, we are of the opinion that the order passed by the Tribunal dt. 18th Nov., 2016 recalling its earlier order dt. 6th Sept., 2013 is beyond the scope and ambit of the powers under s. 254(2) of the Act. While allowing the application under s. 254(2) of the Act and recalling its earlier order dt. 6th Sept., 2013, it appears that the Tribunal has re-heard the entire appeal on merits as if the Tribunal was deciding the appeal agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case before the Tribunal and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the Tribunal to pass the order de hors s. 254(2) of the Act. As observed hereinabove, the powers under s. 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. 4.1 Testing the factual matrix as regards scope of Section 254(2) on the anvil of aforesaid law laid down, it is obvious that only palpable errors which do not require detailed inquiry are amenable to power of rectification. Rectification is a power which is comparatively restrictive than the power of review. 4.2 In the instant case, the stand of Revenue was accepted by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated to be letter dated 04.08.2016 revealing the acceptance of aforesaid audit objection in regard to Assessment Year 2009-10. While Annexure D-3 is the audit objection regarding Assessment Year 2010-11 and Document No.4 is said to be acceptance of the said audit objection of 2010-11. 6.2 This Court refrains from going into the facts as to whether the documents marked as D-1 to D-4 are the relevant documents to demonstrate that the audit objection in question in regard to both the Assessment Years was not only made but also accepted, for the reason that this Court deems it appropriate to leave it to the Tribunal to consider the same at its own level since the records produced before this Court did not reveal the relevant document o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
