Search Results For: rectification of mistake


Otters Club vs. DIT (E) (Bombay High Court)

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DATE: January 12, 2017 (Date of pronouncement)
DATE: January 28, 2017 (Date of publication)
AY: 2009-10
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CITATION:
S. 254(1)/ Rule 34(5)(c): The Tribunal is mandated to pass orders within 90 days of the hearing. Delay is not justified on the ground that 'administrative clearance' was obtained. The aggrieved party is entitled to seek recall of such an order

The order of the Tribunal while rejecting the rectification application does not dispute the fact that the order dated 3rd February, 2016 passed under Section 254(1) of the Act was passed beyond the period of 90 days from the date of conclusion of its hearing on 22nd September, 2015. However, it records that administrative clearance had been taken to pass such an order beyond the period of 90 days. We are at a loss to understand what is meant by ‘administrative clearance’ and the basis for the same. Besides when, how and from whom the administrative clearance was received, are all questions still at large

Posted in All Judgements, High Court

Ashish Gandhi Builders & Developers P. Ltd vs. ITAT (Bombay High Court)

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DATE: January 12, 2017 (Date of pronouncement)
DATE: January 23, 2017 (Date of publication)
AY: 2002-03
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CITATION:
S. 254(2): Facts recorded by the ITAT have to be accepted as correct and conclusive and cannot be contradicted by affidavit or otherwise. The mere placing of a case law in the paper book does not mean that it was cited before the ITAT and non-consideration thereof is not a mistake apparent from the record. A MA to rectify such alleged mistake of non-consideration of a judgement must be filed as quickly as possible

It is settled position in law that statement of fact recorded in the order of the Court/Tribunal has to be accepted as correct and conclusive. It cannot be contradicted by affidavit or otherwise as held by the Supreme Court in State of Maharashtra vs. Ramdas S. Nayak 1982 (2) SCC 463, Central Bank of India vs. Vrajlal K. Gandhi 2003(6) SCC 573 and Jagvir Singh & Others vs. State (Delhi Admn.) 2007 (5) SCC 359. Thus, mere filing of the paperbook is no indication of the fact that the case law referred to in paperbook was relied upon and submissions made on it during course of hearing of the appeal. Moreover, in cases such as this where it is contended by a party that particular case was not considered by the Court/Tribunal/Adjudicating Authority was cited during the course of hearing and is relevant to the issue, then a party would be expected to move the Tribunal as quickly as possible. This for the reason that the issues would be fresh in the mind of the Court/Tribunal/Adjudicating Authority

Posted in All Judgements, High Court

Triad Resorts & Hotels P.Ltd vs. WTO (ITAT Bangalore)

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DATE: August 11, 2016 (Date of pronouncement)
DATE: August 17, 2016 (Date of publication)
AY: 2004-05 to 2007-08
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CITATION:
Conduct of the Counsel in making selective reference to the Tribunal’s order in “very deceitful manner” is “highly deplorable”. Attempt to re-argue matter is “clear case of abuse of process of court” and is condemned “in no uncertain terms as it resulted in colossal waste of valuable time of this Tribunal”. Verdict in Dr. T.K. Dayalu (202 TM 531 (Kar) on taxability of development agreements is “not good law” in view of CIT vs. N. Vemanna Reddy (Kar)

We highly deplore the attempts of the petitioner to knock the doors of the Tribunal again in the guise of seeking rectification of order alleging that additional ground of appeal was not decided. As mentioned supra, the additional grounds have been specifically adjudicated and a specific finding had been rendered vide para.9 of the impugned order. Attempts made by the petitioners is nothing but clear case of abuse of process of court and in breach of principles of Res Judicata. We condemn this conduct of petitioner in no uncertain terms as it resulted in colossal waste of valuable time of this Tribunal

Posted in All Judgements, Supreme Court

Safari Mercantile Private Limited vs. ITAT (Bombay High Court)

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DATE: June 23, 2016 (Date of pronouncement)
DATE: July 12, 2016 (Date of publication)
AY: 2001-02
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S. 254(2): In an order passed in a Miscellaneous Application, the Tribunal cannot deal with the merits of the issue. The Tribunal must recall the original appellate order and refix the matter for hearing and pass an order u/s 254(1) of the Act

This disposing of Miscellaneous Application could only be after recalling the conclusion in its order dated 9th May, 2006 allowing the Revenue’s appeal and hearing the petitioner on the issue of penalty being imposable even in the absence of a demand notice being served upon the assessee. This was for the reason that its conclusion was reached without having considered the petitioner’s contention that no penalty can be imposed in the absence of receipt of a demand notice by the petitioner. However, the Tribunal in the impugned order has dealt with the issue of imposition of penalty being imposed under Section 221 of the Act even without service of demand notice under Section 156 of the Act upon an assessee. This the Tribunal could have only done while passing an order in appeal. The consequent order which would have been passed in appeal would enable the parties to challenge the same before this Court in an appeal under Section 260A of the Act. The procedure adopted by the Revenue in this case has deprived the right of statutory appeal to the petitioner

Posted in All Judgements, High Court

Green Meadows Pvt Ltd vs. ITO (ITAT Delhi)

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DATE: February 19, 2016 (Date of pronouncement)
DATE: April 1, 2016 (Date of publication)
AY: 2009-10
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Whether subsequent decision of High Court reversing the view of the ITAT constitute mistake apparent from record

Non consideration of proposition of law laid down by the High Court is a mistake apparent from record

Posted in All Judgements, Tribunal

ACIT vs. Rupam Impex (ITAT Rajkot)

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DATE: January 21, 2016 (Date of pronouncement)
DATE: February 23, 2016 (Date of publication)
AY: 2008-09
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S. 154: Pedantic stand of AO in refusing to rectify a mistake on the ground that the assessee is responsible for it is appalling and makes a mockery of the assessment proceedings. A sense of fair play by the field officers towards the taxpayers is not an act of benevolence by the field officers but it is call of duty in a socially accountable governance

A lot of emphasis is placed on the fact that the mistake was committed by the assessee himself which has resulted in the error creeping in the assessment order as well. Instead of being apologetic about the complete non application of mind to the facts and making a mockery of the scrutiny assessment proceeding itself, the Assessing Officer has justified the mistake on record on the ground that it is attributed to the assessee. The income tax proceedings are not adversarial proceedings. As to who is responsible for the mistake is not material for the purpose of proceedings under section 154; what is material is that there is a mistake- a mistake which is clear, glaring and which is incapable of two views being taken. The fact that mistake has occurred is beyond doubt. The fact that it is attributed to the error of the assessee does not obliterate the fact of mistake or legal remedies for a mistake having crept in. It is only elementary that the income liable to be taxed has to be worked out in accordance with the law as in force. In this process, it is not open to the Revenue authorities to take advantage of mistakes committed by the assessee. Tax cannot be levied on an assessee at a higher amount or at a higher rate merely because the assessee, under a mistaken belief or due to an error, offered the income for taxation at that amount or that rate. It can only be levied when it is authorised by the law, as is the mandate of Art. 265 of the Constitution of India. A sense of fairplay by the field officers towards the taxpayers is not an act of benevolence by the field officers but it is call of duty in a socially accountable governance

Posted in All Judgements, Tribunal

K. S. Venkatesh vs. DCIT (Karnataka High Court)

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DATE: July 3, 2015 (Date of pronouncement)
DATE: November 16, 2015 (Date of publication)
AY: 2004-05
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S. 154: Even if assessee offers interest income as "Other Sources" and claims set-off of brought forward business loss against it u/s 72, AO is not permitted to rectify as issue is debatable

The Assessing Officer sought to rectify the original assessment order on the ground that carried forward business loss was to the tune of Rs. 24,23,760/- and same had been set off against the total income which was inclusive of the income earned by the assessee under the head “Income from Other Sources” and “Income from House Property” as declared by him in the return of income and carried forward loss could have been set off against “Business Income” only. As already observed by us herein above the issue as to whether the said income earned by way of interest on Fixed Deposits, NSCs, would be available to the assessee to seek for set off as business loss or not under section 72 of the Act is a debatable issue and as such we are of the considered view that said issue could not have been gone into in a proceeding under section 154 of the Act

Posted in All Judgements, High Court

R. W. Promotions P. Ltd vs. ITAT (Bombay High Court)

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DATE: April 8, 2015 (Date of pronouncement)
DATE: April 24, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 254(2)/ 260A: Pendency of an appeal filed in the High Court u/s 260A is no bar to the maintainability of a MA filed u/s 254(2)

Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments. That in a given case would not only save precious judicial time of the Tribunal but even of the higher Court

Posted in All Judgements, High Court

State Bank of India vs. DCIT (Bombay High Court)

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DATE: December 17, 2014 (Date of pronouncement)
DATE: December 23, 2014 (Date of publication)
AY: 2006-07
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CITATION:
S. 254(2): If the Tribunal accepts that a mistake has crept in the order, interests of justice is served if the entire order is recalled (suo moto by the ITAT) & appeal re-heard. Appeals should not be disposed off in “light hearted” and “casual manner”

During the pendency of the Appeal before the High Court, the Tribunal passed an order on the Miscellaneous Application and revived the appeal filed before it for hearing afresh on merits in relation to withdrawal of deduction u/s 36(1)(viia). However,

Posted in All Judgements, High Court