Case Law Details

Case Name : Smt. M. Pochamma Vs Deputy Commissioner of Income-tax (ITAT Hyderabad)
Appeal Number : IT Appeal No. 1099-1109 (HYD.) OF 2010
Date of Judgement/Order : 11/01/2013
Related Assessment Year : 2007-08
Courts : All ITAT (5383) ITAT Hyderabad (316)

IN THE ITAT HYDERABAD BENCH ‘A’

Smt. M. Pochamma

versus

Deputy Commissioner of Income-tax

IT APPEAL NOS. 1099-1109 (HYD.) OF 2010

CO NOS. 76-86 (HYD.) OF 2010

M.A. NOS. 203-213 (HYD.) OF 2012

[ASSESSMENT YEAR 2007-08]

Date of Pronouncement – 11.01.2013

ORDER

Saktijit Dey, Judicial Member

By these applications under S. 254(2) of the Income-tax Act, 1961, the applicant-assessees have prayed for rectification/recall of the order of this Tribunal dated 20.7.2012 on the appeals of the Revenue and the cross-objections of the assessee, being ITA Nos.1099 to 1109/Hyd/2010 and the Cross-Objections of the assessee therein, being C.O. No. 76 to 86/Hyd/1012, for the assessment year 2007-08, on the ground that certain mistakes apparent from record have crept into the same.

2. Reiterating the averments made in the present application, the learned Authorised Representative for the assessees, submitted that the observation of the Tribunal in para 10 of its order that the assessees have transferred 15% of the developed land is not correct because no developed land has been handed over. Similarly, in para 14 it has been mentioned that the agricultural land has been transferred to M/s. Fortune Constructions Pvt. Ltd. and in this transaction, which clearly shows that no developed land has been received. Inviting our attention to para 15, it is submitted that the Tribunal mentioned that the land has been changed to residential area only on 21.09.2005 and the regular sale deed is executed on 20.4.2006, and although the permission has been given, the land remained as agricultural land and there was no right on the part of the assessees to take up any activity. The complexion of land has not changed and only M/s. Koncept Nirman Pvt. Ltd. has taken the activity. In this type of situation, he submitted that the assessees could not have transferred the developed property as noted by the Tribunal. It is also mentioned that the decision of the Supreme Court in the case of Smt. Sarifabibi Mohd. Ibrahim v. CIT [1993] 204 ITR 631 based on facts, which are distinct from the facts of the present cases, and the Tribunal as such is not justified in following the said decision. Similarly, it is submitted that the facts in the case of CIT v. Smt. Sanjeeda Begum [2006] 154 Taxman 346 (All.), relied upon by the assessee are similar to the ones involved in the present case, and the Tribunal has not even made a mention of this decision in the impugned order, which therefore, needs to be rectified/recalled. The learned Authorised Representative for the assessee submitted that the Tribunal should have followed the decision of Allahabad High Court in the case of Smt. Sanjeeda Begum (supra) instead of the decision of the Hon’ble Supreme Court in the case of Smt. Sarifabibi Mohd. Ibrahim (supra). To sum up, it is submitted that the order of the Tribunal dated 20.7.2012 warrants rectification/recall for the following reasons-

(a)  The conclusion that the developed property has been sold is not in order

(b)  No direction as to proper computation of capital gain has been given.

(c)  A return for the assessment year 2001-02 has been filed and by virtue of the provision of the Act, the assessment is deemed to have been completed. There is no mention of this aspect in the order of ITAT.

3. The Learned Departmental Representative, on the contrary, opposing the above contentions of the assessee, strongly supporting the order of the Tribunal dated 20.7.2012 submitted that there is no mistake apparent from record in the order of the Tribunal, and all that the assessee is seeking through its elaborate arguments, is only a review of the order of the Tribunal dated 30.7.2012, by re-arguing its case. Since such a review is not possible in these proceedings under S. 254(2) of the Act, it is submitted that the present application of the assessee is liable to be rejected.

4. We have considered the rival submissions and perused the order of this Tribunal dated 20.7.2012, in the light of the detailed averments made on various aspects by the assessee in the present application. We find that the assessees by the present applications are merely disputing the findings of the Tribunal in relation to the nature of land. The grievance of the assessees in the present applications is also on account of non-mentioning of certain citations relied upon and also certain contentions advanced by the learned Authorised Representative for the assessees before the Tribunal. A careful reading of the order of the Tribunal, clearly reveals that all the contentions of the parties before it have been duly considered and findings have been given based on the material apparent from record. We do not find any material omission or mistake on the part of the Tribunal in recording the contentions of learned Authorised Representative for the assessees before it. It is neither expected nor practicable to expect an appellate authority to record all the contentions of the parties verbatim in the order of the Tribunal, and it would be suffice and meet the ends of justice, if totality of the appellate order reflects the consideration of all the contentions urged by the parties before it. By the contentions urged in the present applications, we find that the assessee-applicants are merely disputing the findings of the Tribunal and seeking a review of the order of the Tribunal, which is not possible in these proceedings under S. 254(2) of the Act.

5. It is worthwhile no note at this stage that the provisions of S. 254(2) of the Income-tax Act, 1961 empowers the Tribunal to rectify a mistake. However, the scope and ambit of the aforesaid provision is very limited. The power conferred on the Tribunal for rectification has to be exercised in terms of the provision. The rectification, as envisaged in the aforesaid provision, is confined to mistakes which are apparent from record and are patent and obvious, and are not such which could be established only by long-drawn arguments and debate or by a process of investigation and research. The scope of S. 254(2) cannot be enlarged so as to empower the Tribunal to review its own order. If two views are possible on a point of law and one of the alternatives is adopted in its previous order, it cannot be held that there is a mistake apparent from record on account of non-adoption of the other possible view. Unless there are manifest errors which are obvious clear and self-evident, the Tribunal cannot recall its previous order, in an attempt to re-write the order. The Tribunal, being a creature of the statute, has to act within the limits laid down by the statute. It has no inherent power of review. Hence, such power cannot be assumed in the guise of rectification envisaged under S. 254(2) of the Act, for recalling its own order and hearing it afresh. We may draw support in this behalf by the ratio laid down by the jurisdictional High Court in the case of CIT v. Ved Prakash (209 ITR 448)(AP), wherein it has been held as follows-

“If two views are possible on a point of law, and one of the alternatives is accepted by the Tribunal, it cannot be held that the mistake is apparent from the record, unless there are manifest errors which are obvious, clear and self-evident, the Tribunal cannot recall its previous order in an attempt to rewrite the order. A change of opinion by the Tribunal consisting of the same members shall not justify rectification, nor can fresh thinking brought in by new Members of the Tribunal justify rewriting of the order under the guise of rectification. The only fact that had the second set of Members heard the appeal, they would have decided in favour of the assessee is not a reason for them to recall an order allegedly for the purpose of rectification of a mistake.”

Similarly, in the case of CIT v. ITAT [1994] 206 ITR 126 the Andhra Pradesh High Court held as under:

“The Appellate Tribunal, being a creature of the statute, has to confine itself in the exercise of its jurisdiction to the enabling or empowering terms of the statute. It has no inherent power. Even otherwise, in cases where specific provision delineates the powers of the court or Tribunal, it cannot draw upon its assumed inherent jurisdiction and pass orders as it pleases. The power of rectification which is specifically conferred on the Tribunal has to be exercised in terms of that provision. It cannot be enlarged on any assumption that the Tribunal has got an inherent power of rectification or review or revision. Unless there is a mistake apparent from the record in the sense of patent, obvious and clear error or mistake, the Tribunal cannot recall its previous order. If the error or mistake is one which could be established only by long-drawn arguments or by a process of investigation and research, it is not a mistake apparent from the record. If two views are possible on a point of law, and one of the alternatives is accepted in its previous order, it cannot be held that the mistake is apparent from the record. Unless there are manifest errors which are obvious, clear and self- evident, the Tribunal cannot recall its previous order in an attempt to rewrite the order.”

At the cost of repetition, we would like to reiterate that on going through the order passed by the Tribunal, we are convinced that the Tribunal passed the order, after marshalling all the facts considering the submissions made before it and applying its mind to the decisions cited before it. We do not find any mistake in the order of the Tribunal of the nature as envisaged under S. 254(2) of the Act. Permitting the assessee to raise the same issues over again in the guise of rectification will amount to recalling the appeal order in its entirety and re-hearing it afresh, which is not within the scope and ambit of S. 254(2) of the Act. The contention of the learned Authorised Representative for the assessees that the decision of the Allahabad High Court in the case of Smt. Sanjeeda Begum (supra) should have been followed instead of following the decision of the Hon’ble Supreme Court in the case of Smt. Sarifabibi Mohd. Ibrahim (supra) clearly shows that the assessees through these applications are merely disputing the course adopted and the conclusions arrived at by the Tribunal, which is not a mistake apparent from record.

6. In the light of the foregoing discussion, we find no merit in the present application of the assessee, which is accordingly rejected.

7. In the result, all these Miscellaneous Applications of the assessees are rejected.

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Category : Income Tax (28069)
Type : Judiciary (12316)
Tags : ITAT Judgments (5563) section 254 (20)

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