Ramesh Kumar Tagrajji Jain vs. ITO - (Income Tax Appellate Tribunal) (14 Dec 2022)

Non-consideration of the decision of High Court or of Supreme Court is a 'mistake apparent from record', which could be rectified under Section 254(2) of the IT Act

MANU/IU/1696/2022

Direct Taxation

By way of present Miscellaneous Applications under Section 254(2) of the Income Tax Act, 1961 ( IT Act), the assessee seeks recall of the common order passed under Section 254(1) of the IT Act by the coordinate bench of Tribunal in assessee's appeals.

Learned Authorised Representative ('learned AR') submitted that ground raised by the assessee challenging the non-issuance of notice under 143(2) of the IT Act was not adjudicated by the coordinate bench of the Tribunal.

The Hon'ble Supreme Court in NTPC vs. CIT 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 raised by the assessee.

In ACIT vs Saurashtra Kutch Stock Exchange Ltd., the 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 IT Act. Therefore, in view of decision in Saurashtra Kutch Stock Exchange Ltd., present Tribunal 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 IT Act. Miscellaneous Applications by the assessee are allowed.

Tags : ASSESSMENT COMMON ORDER RECALL