TMI Blog2024 (1) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... ts order while dismissing the appeal has taken into consideration the circular dated 11.07.2018 but has not taken into consideration when the said circular was amended on 20.07.2018 and subsequently Clause 10(e) has been inserted which clearly provides that if 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 G.S.T. Intelligence (DGGI). The adverse judgment relating to the said issues will be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect. The assessment order passed by the Assessing Authority clearly provides that the undisclosed income belonging to the assessee is as per the investigation of C.B.I. thus, the learned Tribunal has not committed any illegality or irregularity in allowing the Miscellaneous Application filed by the Revenue. The order passed by the Income Tax Tribunal allowing the application is in accordance with the judgment passed by the Hon'ble Supreme Court in case of T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay vs M/s Vokart Brothers, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of procuring the information from CBI, who after going through the documents including statements provided to him by CBI has furnished a detailed speaking report dated 15/12/2006. It is also noted by the Ld. AO that the assessee was not able to produce any evidence specially any documentary evidence in support of his claim that there is no force in the case in the CBI case and that the CBI as an investigation agency has not found anything against him. On perusal of such facts, it is evident that there was certain information which was provided by the CBI which was submitted in form of a report by the inspector to the AO and therefore the case of the assessee. Accordingly, the contention of the assessee that there was no information provided by the CBI and, thus, exceptions carved out in clause No. 10(e) of CBDT's Circular No. 3/2018 are not applicable in the present case, is not comprehensible and, therefore, are not accepted. In our considered opinion the present case is squarely covered by the said exception under clause No. 10(e) of CBDT's Circular No. 3/2018 dated 11/07/2018, Para 10 of the said circular was amended on 20/08/2018 vide F.No. 279/Misc. 142/2007-ITJ(P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Appellate Tribunal unless the tax effect, excluding interest, exceeds Rs. 20 lakhs and it further states that the instructions will apply retrospectively to the pending appeals also. In the present case, since it is an undisputed fact that on the additions which are in dispute, the tax effect is less than Rs. 20 lakhs and in the absence of any material placed on record by the Revenue to demonstrate that the issue in the present appeal is covered by exceptions provided in para 10 of the aforesaid CBDT Circular, we are of the view that the monetary limit prescribed by the instructions of the aforesaid CBDT Circular would be applicable to the present appeal of the Department. We therefore hold the present appeal of Revenue to be not maintainable on account of low tax effect and accordingly dismiss the appeal of Revenue without expressing any opinion on merits of the case. However, in case there is any error in the computation of the tax effect involved or if for any reason, the aforesaid CBDT Circular is not applicable, it would be open to the Revenue to seek revival of the appeal. Thus, without going into the merits, the grounds of the Revenue is dismissed. 4. Thereafter, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has reheard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 6. He would further rely upon the judgment passed by the Hon'ble High Court of Calcutta in case of Commissioner of Income Tax vs Gokul Chand Agrawal {1992 SCC Online Cal 303) wherein Hon'ble High Court of Calcutta in para No. 8 has held as under :- 8. Section 254(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect :- (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). 8. Thus, he would submit that assessment order for addition of additional undisclosed income of 45,00,000/- has been passed on the basis of information received from the CBI and the appeal filed by the Revenue has been dismissed on 17.01.2019, prior to passing of the judgment by the Tribunal, the amendment in the circular was already brought on record but the learned Tribunal while deciding the appeal could not take into consideration the amendment made in the Circular which is apparent mistake on the face of the record as such while allowing the Miscellaneous Application has not committed any illegality and would pray for dismissal of the present writ petition. To substantiate his submission he would refer to the judgment of the Hon ble Supreme Court in case of Honda Siel Power Products Ltd vs Commissioner of Income Tax, Delhi, {2007 (12) SCC 596}. 9. I have heard learned counsel for the parties and perused the record. 10. From the above factual and legal submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned Tribunal has not committed any illegality or irregularity in allowing the Miscellaneous Application filed by the Revenue. 13. The order passed by the Income Tax Tribunal allowing the application is in accordance with the judgment passed by the Hon'ble Supreme Court in case of T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay vs M/s Vokart Brothers, Bombay {(1971) 2 SCC 526: 1971 (82) ITR 50 SC} as the mistake in the order is apparent in the face of the record, the Hon'ble Supreme Court has held in paragraph 5 as under:- 5.....A mistake apparent on the record must be an obvious and patent mistake and not ,something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde and ors. v. Millikarjun Bhavanappa Tirumale (1) this Court while Spelling out the scope of the power of a High Court under Art. 226 of the Constitution ruled that an error which has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words are an error apparent on the face of the record and the two provisions do not mean the same thing. 16. Hon'ble Supreme Court in case of Assistant Commissioner Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange Ltd. {(2008) 14 SCC 171: 2008 (305) ITR 227 SC} has held in paragraph 26, 27, 28 and 30 as under:- 26. In view of settled legal position, if the submission of the learned counsel for the Revenue is correct that the Tribunal has exercised power of review, the order passed by the Tribunal must be set aside. But, if the Tribunal has merely rectified a mistake apparent from the record as submitted by the learned counsel for the assessee, it was within the power of the Tribunal and no grievance can be made against exercise of such power. The main question, therefore, is: What is a `mistake apparent from the record'? Now, a similar expression `error apparent on the face of the record' came up for consideration before courts while exercising certiorari jurisdiction under Articles 32 and 226 of the Constitution. In T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526 , this Court held that any mistake apparent from the record is undoubte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ . 30. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long- drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently ..... X X X X Extracts X X X X X X X X Extracts X X X X
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