TMI Blog2024 (1) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... MUMBAI] In this case, the assessee filed return of income on 29.09.2012 and the same has been assessed u/s 143(3) vide order dated 02.06.2014. The assessee filed letter for rectification on 23.05.2017. Thus, we find that the rectification application filed by the assessee is within the time allowed, hence the observation of the revenue authorities that the issue has been raised after a period of 5 years is wrong on facts - Assessee appeal allowed. - Sh. Saktijit Dey, Vice President And Dr. B. R. R. Kumar, Accountant Member For the Assessee : Sh. S. S. Nagar, CA For the Revenue : Ms. Nidhi Nair, Sr. DR ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: The present appeal has been filed by assessee against the order of ld. CIT(A), National Faceless Appeal Centre, Delhi, dated 02.02.2023. 2. Following grounds have been raised by the assessee: 1.0 That on the facts and in the circumstances of the case, the disallowance, imposition of tax and interest with reference thereto, the quantification of taxable income and the tax liability, has been grossly unjustified, erroneous and unsustainable and necessary direction be given to the AO to give appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntified in the assessment order. The said issue has been raised after a period of five years which has no relevance at this juncture. The issue has been raised just for the sake of raising an issue. Further, you have also raised the issue of claim of interest subsidy received under TUF Scheme and claim of Electricity Duty Exemption Interest subsidy as capital receipt under Rajasthan Investment Promotion Scheme (RIPS). In this regard, it is stated that the issue does not come under the purview of section 154 of the Income Tax Act, 1961. On the said issue, reliance is placed on the judgment of Hon'ble Supreme Court in the case of M/s Mepco Industries Ltd., Madural Vs. CIT Another in the civil appeal Nos. 7662-7663 of 2009 (Arising out at SLP.(C) Nos. 9979-9980 of 2008). In this case it has been held that a 'rectifiable mistake is a mistake which is obvious and not something which has to be established by a long drawn process of reasoning or where two opinions are possible Decision on debatable point of law can't be treated as mistake apparent from the record . In view of the above facts, you application is not maintainable. The same is treated as disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT-(A) vide order dated 0202-2023 dismissed the appellant's appeal stating that the issues raised in the grounds of appeal are not mistake apparent from record for the purpose of section 154 of the Act. Aggrieved by the same, the appellant is in appeal before your Honour. Issue falls u/s 154 purview Income tax authority can amend any order, if there is any mistake apparent from record. Now a question arises as to what constitute mistake apparent from record. Whether, a Supreme court judgment delivered at a later point of time after passing of order can constitute mistake apparent from record or not. Reliance is placed on Circular No. 68 dated 17-11-1971 (Kindly refer page no. 1 of PB). M/s BR Agrotech Limited vs. ACIT (ITA No. 6244 to 6247/Del/2019) (Kindly refer page no. 2 to 13 of PB). DCTT vs. M/s Kashmir Steel Rolling Mills (ITA No. 130 of 2014) Hon'ble ITAT Amritsar (Kindly refer page no. 14 to 26 of PB). M/s Nulux Engineers vs. DCIT (ITA No. 2073/Mum/2017) Hon'ble ITAT Mumbai. (Kindly refer page no. 27 to 35 of PB). After considering the above circular and judicial pronouncements, it is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted assessments in his case, the application shall be acted upon, provided the same has been filed within time and is otherwise in order. Where any such applications have already been rejected and the assessee files fresh applications within the statutory time limit, the same may also be treated on par with the applications which may either be pending or received after the issue of this circular. 2. The Board desire that any appeals or references pending on the point at issue may please be withdrawn. 12. The Circular says that for the purpose of rectification, the assessee has to file application within the statutory time limit. 13. The statutory time limit for the purpose of Section 154 is as under: Rectification of mistake. 154. (1) With a view to rectifying any mistake apparent from the record an income-tax authority referred to in section 116 may, (a) amend any order passed by it under the provisions of this Act ; (b) amend any intimation or deemed intimation under sub-section (1) of section 143; (c) amend any intimation under sub-section (1) of section 200A; (d) amend any intimation under sub-section (1) of section 206CB. (1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order sought to be amended was passed. (8) Without prejudice to the provisions of sub-section (7), where an application for amendment under this section is made by the assessee or by the deductor or by the collector on or after the 1st day of June, 2001 to an income-tax authority referred to in sub-section (1), the authority shall pass an order, within a period of six months from the end of the month in which the application is received by it, (a) making the amendment; or (b) refusing to allow the claim. 14. The Act provides for a period of 4 years from the date of order sought to be rectified and not 4 years from original order. Hence, if an order is revised, set aside, etc., then the period of 4 years will be counted from the date of such fresh order and not from the date of original order. 15. In this case, the assessee filed return of income on 29.09.2012 and the same has been assessed u/s 143(3) vide order dated 02.06.2014. The assessee filed letter for rectification on 23.05.2017. Thus, we find that the rectification application filed by the assessee is within the time allowed, hence the observation of the revenue authorities that the issue has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It provides for the issue of notice. It ensures the grant of an opportunity to be heard. It limits the jurisdiction of the authority. The action can benefit the assessee as well as the Revenue. In this situation, there is no ground for placing an unduly restricted interpretation on the provision. The power u/s 154 can be invoked even when an issue is decided by the jurisdictional High Court or a superior court after the order had been passed. In her return for the assessment year 1987-88, the assessee claimed a deduction from the profits of business, of a sum representing loss in chit fund. This was allowed in an assessment u/s 143(1). Subsequently, on the basis of a judgment of the High Court hold that the transactions did not involve any taxable income or revenue expenditure, the Assessing Officer added the sum in question, in proceedings u/s 154. The Tribunal held in favour of the assessee. On appeal: Held, that the dispute related to the assessment year 1987-88. The parties had been litigating for more than 13 years. The ultimate tax effect was limited. Thus, even though the decision on the question of law was in favour of the Revenue, the order passed by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income tax officer disallowed the claim of the assessee. The Commissioner (Appeals) upheld the claim of the assessee. The Tribunal following the decision of a single judge of the Kerala High Court in A. Sethumadhavan v. CIT (1980) 122 ITR 587 (Ker.) by order dated October 31, 1981, held that the belated payments were not to be taken into account as advance tax for the purpose of section 214 of Income-tax Act, 196, and hence interest was not admissible for such belated payments. A Division Bench of the High Court by order dated January 22, 1982 in Santha S. Shenoy v. Union of India (1982) 135 ITR 39 (Ker) reversed the decision of the single judge in A Sethumadhavan v. CIT (1980) 122 ITR 587 and held that payments of tax made within the financial year, though not within specified dates should be treated as advance tax and the assessee was entitled to interest on the excess tax paid. The assessee filed an application u/s 154 for rectification of the order of the Tribunal dated October 31, 1981, in view of the decision of the Division Bench in Santha S. Shenoy v. Union of India (1982) 135 ITR 39 (Ker.), holding that interest was admissible even belated payments of advance tax. The Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income Tax Act, that: 12. It is a settled position in law that every authority exercising quasi judicial powers has inherent/incidental power in discharging of its functions to ensure that justice is done between parties i.e. no prejudice is caused to any of the parties. This power has not to be traced to any provision of the Act but inheres in every quasi judicial authority. This has been so held by the Supreme Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal 1980 SCC 420. Therefore, the aforesaid principle of law should have been adopted by the Tribunal. It is expected from the Tribunal to adopt a justice oriented approach and not defeat the legitimate rights o the altar of procedures and technicalities. This is particularly so when there is no specific bar in the Act to correct an order passed on rectification. 13. It is fundamental principle of law that no party should be prejudiced on account of any mistake in the order of the Tribunal. Though not necessary for the disposal of this Petition, we express our disapproval of the stand taken in the impugned order that section 254(2) of the Act are meant only for rectifying the mistakes of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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