Case Law Details
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 7th 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.
3. The Ld. AR further submitted that Tribunal has disposed of the appeal of the assessee herein on 7th 2021. He submitted that the Tribunal had disposed of another appeal filed by Shri Ashok Kumar Banthia vs. DCIT (ITA No.297/Jodh/2019) on 6th Sept. 2021 i.e. one day earlier to the impugned Tribunal Order. In the said case also, identical legal ground was urged by the said assessee and the Tribunal had accepted the contentions of the assessee with regard to the legal ground and thus allowed the appeal of the assessee. The decision so rendered by the Tribunal in the case of Shri Ashok Kumar Banthia vs. DCIT (supra) would show that adjudication of the legal ground urged by the assessee is essential in the instant case of the assessee. Accordingly, he submitted that the mistake apparent from record pointed out above needs to be rectified.
3. We heard the Ld. DR, who submitted that the Tribunal has rendered its decision by combining all the grounds and it is one of the methods of adjudicating the appeal usually followed by the Tribunal. Accordingly, the Ld. DR submitted that there is no mistake apparent from record in the order passed by the Tribunal.
4. We heard the rival contentions and perused the record. As stated earlier, the 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 non-adjudication upon the legal ground urged in Ground No. 2 constitutes mistake apparent from record, 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 7th 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.
5. In the result, the Misc. Application filed by the assessee is allowed.
Order pronounced in the open Court on 17 /01/2023
