Ashok Kumar Mangal @ Ashok Kumar Agarwal vs Deputy Commissioner of Income Tax, Ranchi

Heard Learned Counsel for the parties. The appeal is directed against the order dated 29th August, 2011 passed in Miscellaneous Application (M.A. No. 25/Ran/2010) by which the appellant''s application u/s 254(2) of the Income Tax Act, 1961 has been dismissed.

Brief facts of the case are that in this case, search and seizure operation was carried out u/s 132 of the Income Tax Act, 1961 on 10.03.2007. The Assessing Officer completed assessment u/s 158BC of the Act on the basis of material found as a result of search and also of the result of post search enquiries. The said assessment was challenged before the C.I.T.(Appeals) and the appellate order was challenged before the Income Tax Appellate Tribunal, Circuit Bench, Ranchi in I.T.(SS).A. No. 36/PAT/2006 pertaining to the block period 01.04.1986 to 10.03.1997. The appeal of the assessee was dismissed vide order dated 06.11.2009. The assessee, not satisfied with the order, moved application u/s 254(2) of the Act of 1961 for rectification of the mistake, which, according to appellant, was apparent from the order dated 06.11.2009 itself.

The Tribunal found that the appellant failed to point out any mistake which is apparent from the record and, therefore, did not entertain the application and dismissed the application vide impugned order. Hence this appeal has been preferred by the assessee.

Learned Counsel for the appellant vehemently submitted that the appellant cited various judgments which have not been considered by the Tribunal and thereby committed serious mistake and that mistake was apparent from the face of the order dated 06.11.2009 itself. In support of his contention, Learned Counsel for the appellant relied upon judgment of the Supreme Court delivered in the case of Honda Siel Power Products Ltd. Vs. Commissioner of Income Tax, Delhi reported in (2007) 12 SCC 596 wherein the Hon''ble Supreme Court set aside the order of the High Court whereby the High Court interfered in the order passed by the Tribunal u/s 254(2) of the Act of 1961 on the ground that it may amount to reviewing the order which is impermissible u/s 254(2) of the Act of 1961 and the power u/s 254(2) can be invoked only for rectification of the mistake.

Learned Counsel for the appellant submitted that because of non-consideration of the judgments cited, which have been taken note of by the tribunal in its impugned order itself, serious prejudice has been caused to the appellant.

We considered the submission of the Learned Counsel for the appellant. The Hon''ble Supreme Court in the case of Honda Siel Power Products Ltd. (Supra) clearly held that the power of rectification may not be confused with the power of review and Learned Counsel for the appellant was fully justified in submitting that in every case of rectification of any order, it may result into modification in the order, which is one of the powers of the review court. Therefore, according to Learned Counsel for the appellant, Tribunal under misconception of law, observed that if the Tribunal will entertain the application u/s 254(2) of the Act, then that will amount to review. Prima facie the argument appears to be attractive but in the facts of the case, we are of the considered opinion that the said argument cannot be applied because of plain and simple reason that mere mentioning by the Tribunal that it may amount to review is itself not the reason for dismissal of assessee''s application but dismissed on the ground that there is no mistake in the impugned order dated 06.11.2009. In the order dated 06.11.2009, the Tribunal has clearly observed in para 12 that essentially a question of evidence as to whether the assessee has been able to satisfactorily explain that the impugned sums represented sales etc. are question of facts. The other questions which have been decided by the Tribunal also have been decided with reasons. It may be true that some of the judgments were cited by the assessee and the Tribunal has taken note of those judgments in para 6 of the original order dated 06.11.2009 and the Tribunal also has considered the written submission submitted by the assessee. In contrast to it, in the case of Honda Siel Power Products Ltd.(Supra) the Tribunal itself in the order passed on application u/s 254(2) found that the Tribunal through oversight missed out the judgment cited by the assessee which in fact was covering the question of law decided by the Tribunal in relation to the interpretation of Section 43A of the Act of 1961 and, therefore, the Tribunal was of the opinion that it has resulted into the wrong judgment contrary to the order passed by the Coordinate Bench. In present case, such finding has not been recorded by the Tribunal in the order dated 29.08.2011 and the appellant''s contention is only that the judgments cited were not taken note of and not considered by the Tribunal in its original order dated 06.11.2009. However, we found from the impugned order dismissing application u/s 254(2) of the Act of 1961 that this argument did not impress the Tribunal and we found from the order dated 06.11.2009 that the judgments were not ignored by the Tribunal while deciding the appeal of the appellant vide order dated 06.11.2009 but they were taken note of by the Tribunal and, therefore, it cannot be said that those judgments were not considered by the Tribunal. In view of the above reasons, the judgment of the Honda Siel Power Products Ltd. has no application in the facts of the case and we are of the view that no question of law is involved and there is no merit in the appeal. Hence, the appeal is dismissed.