CA Vinamar Gupta
Total Recall Vs Partial Recall of ITAT ORDER – ITAT Amritsar Comprehensive Decision
Often when department or the assessee is not satisfied with the order of the ITAT, then apart from resorting to appeal before High Court u/s 260A makes use of section 254(2). U/s 254(2), ITAT is vested with power to rectify mistake apparent from record with in four years from the date of order. As per section 254(2) read with Rule 34A of ITAT rules, application for rectification is required to be filed in triplicate and to be accompanied by fee of fifty rupees. The assessee might even file second application u/s 254(2) after earlier application fails. The ITAT is also required to provide both the parties a reasonable opportunity of being heard even if it a prima facie case of review. The ITAT is required to pass a reasoned order deciding the fate of such rectification application. The vested powers of the ITAT however, are not unbridled and have to be exercised while walking the thin string of rectification vs. review, because while rectification is permissible, any perversity in order can only be dealt by High Court.
1. Recently, ITAT Amritsar in a decisions in case of Rohit Tandon ITA 345/2009 pronounced on 05-03-2015 had an occasion to deal with the issue of powers vested with ITAT regarding recall of its order, when it recalled its earlier order rendered against the assessee. The earlier order was recalled because it was found by ITAT that case laws cited on the behalf of assesseee have not been considered. Also it was found that there are certain mistakes in earlier order and arguments were not considered in right perspective, as pointed out in miscellaneous application of the assessee and argued during the hearing of the appeal. ITAT therefore found that these constitute mistakes apparent from record and hence order needs to be recalled to meet the ends of justice.
2. The departmental representative raised a contention that while arguing the case, the assessee counsel can plead only those case laws and only argue only on those points which were referred in application filed for recall of order. In other words, ITAT in second innings of appeal cannot go beyond points rectifiable in first innings. The department placed reliance on Commissioner of Income tax vs. Gokul Chand Agarwal’, 202 ITR 14 (Cal.); ‘Commissioner of Income Tax vs. Earnest Exports Ltd.’, 323 ITR 577 (Bom.); ‘Shaw Wallace And Co. Ltd. vs. Income-Tax Appellate Tribunal And Others’, 240 ITR 577 (Cal.); Commissioner of Income tax vs. Income Tax Appellate Tribunal And Others’, 293 IT 118 (Del.) ;Commissioner of Income Tax vs. Kedia Leather And Liquor Ltd.’, 293 ITR 95 (MP).
3. It was also contended on behalf of the department that non consideration in right perspective tantamounts to review of order which is the power not vested with ITAT.
4. The ITAT Amritsar shared some noticeable judgements while considering the issue of reigns on its powers to total recall of order as under:
