Non-adjudication upon legal ground constitutes mistake apparent from record: ITAT

Shri Amar Singh Saharan Vs ITO (ITAT Jodhpur)

Tribunal has adjudicated the appeal of the assessee on merits only and it was decided against the assessee. However, in Ground No. 2, the assessee has raised a legal ground. It is submitted that an identical legal ground raised by another assessee named Ashok Kumar Banthia vs. DCIT (supra) has been adjudicated by the Tribunal in his hands and same has been decided in favour of the assessee, which resulted in allowing the appeal of the assessee. It is the submission of the Ld. AR of the assessee that ITAT, as it goes to the root of the matter. We agree with the contentions of the Ld. AR. Accordingly, we hold that non-adjudication of the legal ground no. 2 is a mistake apparent from record as it goes to the root of the matter. Accordingly, we are constrained to recall the impugned order dated 7^th 2021 passed by the Tribunal in the hands of the assessee in ITA No. 83/Jodh/2020. We direct the registry to post the appeal for hearing in normal course under intimation to the parties.

FULL TEXT OF THE ORDER OF ITAT JODHPUR

The assessee has filed this Misc. Application submitting that there are mistakes apparent from record in the order dated 7-09-2021 passed the ITAT in ITA No. 83/Jodh/2020 relating to AY 2013-14.

2. The Ld. Counsel appearing on behalf of the assessee submitted that the assessee had raised 07 grounds in total and the Tribunal has combined all the 07 grounds and adjudicated upon the issue of addition on merits and dismissed the appeal of the assessee. He submitted that Ground No. 2 raised by the assessee is a legal ground, wherein it is contended that the AO has failed to cross examine the deponent in the said affidavit submitted by him and the said failure would result into acceptance of the contents of the affidavit as held by the Hon’ble Supreme Court in the case of Mehta Parekh & Co. Vs. CIT, 30 ITR 181. He further submitted that this ground, if decided in favour of the assessee, would change the decision rendered by the Tribunal, i.e., the appeal of the assessee shall be allowed. Accordingly, he submitted that non-adjudication of this legal ground, which goes to the root of the matter, is a mistake apparent from record.

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