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

DATE: January 12, 2017 (Date of pronouncement)
DATE: January 23, 2017 (Date of publication)
AY: 2002-03
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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. Once the Tribunal has recorded a finding that all cases referred to by the assessee during hearing have been dealt with by the Tribunal it must follow that the decision of the Gujarat High Court in Manilal Tarachand (supra) was not relied upon during hearing held on 9th September, 2015 leading to the order dated 14th September, 2015 (Honda Siel Power Products Ltd. vs. Commissioner of Income Tax 295 ITR Page 466 and an unreported decision of the Gujarat High Court in Dattani and Co. vs. Income Tax Officer (Income Tax Appeal No.847 of 2013) decided on 21st October, 2013 distinguished)

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