Sandeep Singh Karhail ORDER
Sandeep Singh Karhail, Member (J)
1. By way of these Miscellaneous Applications under section 254(2) of the Income Tax Act, 1961 ("the Act"), the assessee seeks recall of the common order dated 27/09/2021, passed under section 254(1) of the Act by the coordinate bench of Tribunal in assessee's appeals being ITAs no. 5066 & 5067/Mum./2019, for the assessment year 2011-12 and 2010-11, to the extent of adjudication of ground No. 1.
2. During the course of hearing, learned Authorised Representative ('learned AR') submitted that ground raised by the assessee challenging the non-issuance of notice under 143(2) of the Act was not adjudicated by the coordinate bench of the Tribunal. Learned AR, by placing reliance upon decision of Hon'ble Supreme Court in NTPC vs. CIT, MANU/SC/1287/1997 : (1998) 229 ITR 383 (SC), submitted that legal issue can be raised at any stage of the proceedings. However, the coordinate bench has rendered its decision without considering the decision rendered by the Hon'ble Supreme Court in NTPC (supra) and therefore non-consideration of decision of Hon'ble Supreme Court constitutes a mistake apparent from record.
3. On the other hand, learned Departmental Representative vehemently opposed the prayer for recall of the order to the extent of adjudication of ground No. 1 by the coordinate bench of the Tribunal.
4. We have considered the rival submissions and perused the material available on record. The relevant findings of the coordinate bench of the Tribunal vide common order dated 27/09/2021, which are sought to be recalled by the assessee, are as under:
"7. We have considered rival submissions in the light of the decisions relied upon and perused materials on record. Insofar as the grounds raised by the assessee challenging the validity of the assessment orders due to alleged non issuance of notice under section 143(2) of the Act, we have observed, before the first appellate authority the assessee had not raised any specific ground on the issue. Of course, in the written submission filed before learned Commissioner (Appeals), the assessee has made a passing reference to non issuance of notice under section 143(2) of the Act. However, it is an admitted factual position; neither the assessee nor his authorized representative appeared before the first appellate authority to make any substantive argument on the issue. In fact, at paragraph 2.1 of the appellate order, learned Commissioner (Appeals) has clearly mentioned that except filing the written argument on 07.06.2019, the assessee of his authorized representative never appeared but kept on filing letters seeking adjournment. Thus, he proceeded to dispose of the appeals ex parte. Thus, when before the departmental authorities the assessee had neither raised any specific ground nor had made any substantive argument with regard to alleged non issuance of notice under section 143(2) of the Act, at this stage, we cannot entertain the plea of the assessee as it would require fresh investigation into facts, even, may require examination of records, which has not been done at any stage earlier. In fact, learned Commissioner (Appeals) has not recorded any specific finding with regard to the alleged non issuance of notice under section 143(2) of the Act, presumably because, assessee never advanced any substantive argument on the issue. Thus, in the aforesaid view of the matter, we are disinclined to entertain assessee's plea on the issue. Accordingly, ground 1 in both the appeals is dismissed."
5. We find that the Hon'ble Supreme Court in NTPC (supra) held that legal issue can be raised for the first time before the Tribunal, so long as the relevant facts are on record in the assessment proceedings for that issue. It is evident that the aforesaid decision of the Hon'ble Supreme Court was not taken into consideration by the coordinate bench while rendering decision in respect of ground No. 1 raised by the assessee. In ACIT vs. Saurashtra Kutch Stock Exchange Ltd., MANU/SC/4034/2008 : [2008] 305 ITR 227 (SC), the Hon'ble Supreme Court held that non-consideration of the decision of jurisdictional High Court or of Supreme Court can be said to be a 'mistake apparent from record', which could be rectified under section 254(2) of the Act. Therefore, respectfully following the aforesaid decision in Saurashtra Kutch Stock Exchange Ltd. (supra), we deem it appropriate to recall the findings rendered by the coordinate bench of the Tribunal, in respect of ground No. 1, in the exercise of the power conferred under section 254(2) of the Act. The registry is directed to fix the appeals for hearing only in respect of ground No. 1, raised in assessee's appeals for assessment years 2010-11 and 2011-12, after due notice to the parties.
6. In the result, Miscellaneous Applications by the assessee are allowed.
Order pronounced in the open Court on 14/12/2022
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