Nafr v. Assistant Commissioner Of Income Tax Central Circle-Ii, Raipur, Chhattisgarh

2025:CGHC:45805 NAFR HIGH COURT OF CHHATTISGARH AT BILASPURW.P(T) No.96 of 2025 M/s Ram Avtar Agrawal Road Construction Private Limited (Now Known As SPA Paving Projects Private Limited), Through Its Director Shri Atulesh Agrawal, Aged About 43 Years, R/o House No.301, Ward No.17, Sri Kant Verma Marg, Hansa Vihar, District - Bilaspur, Chhattisgarh 495001 ... Petitioner versus Assistant Commissioner Of Income Tax Central Circle-II, Raipur, Chhattisgarh... Respondent For Petitioner:: Shri Nikhilesh Begani along with Shri Apurv Goyal, Advocates. For Respondent: Shri Ajay Kumbrani and Shri Vijay Chawla appear on behalf of Shri Amit Chaudhary, Advocates. SISTLANEELIMAVISHNU PRIYA Hon'ble Shri Justice Deepak Kumar TiwariOrder on Board Digitally signed bySISTLA NEELIMAVISHNU PRIYADate: 2025.09.1009.09.202511:58:25 +0530 1. With the consent of learned Counsel for the parties, the matter is heard finally. 2. This Petition has been filed under Article 226 of the Constitution of India assailing the order dated 23.12.2024 passed by the Income Tax Appellate Tribunal, Raipur Bench, Raipur (for short ‘the ITAT’) invoking the powers under Section 254(2) of the Income Tax Act, 1961 (for short ‘the Act of 1961’) whereby, order dated 23.09.2022 passed in ITA No.239/RPR/2019 has been recalled. 3. Brief facts of the case are that against the Petitioner/assessee, a combined assessment order under Section 153A of the Act of 1961 was passed on 28.12.2018 for the assessment year 2011-12 till 2017-18 against which, the Petitioner/assessee has preferred an Appeal before the CIT(A) and the same has been allowed vide order dated 15.10.2019 and against the said order, both the assessee as well as Revenue preferred an Appeal before the ITAT. Both the Appeals were heard together on 29.07.2022 and order has been passed on 23.09.2022 whereby, the Appeal filed by the Petitioner/assessee was allowed. At the time of hearing of the Appeal and the cross Appeal, the Authorized Representative for the Petitioner/assessee made a submission that as the “tax effect” involved in the Revenue’s Appeal was below the monetary limit prescribed in CBDT Circular No.17/19 dated 08.08.2019 and Circular No.03/2018 dated 11.07.2018, therefore, the same was not maintainable and after taking into consideration the aforesaid submission, the matter was reserved for orders. Thereafter, on 07.03.2023, Revenue has filed a miscellaneous application before the ITAT under Section 254(2) of the Act of 1961 for recalling the order dated 23.09.2022. As the Appeal of the Department could not be decided and was pending consideration in ITA No.01/RPR/2020, therefore, a prayer has been made to decide both the Appeals simultaneously, as the issues involved therein are interconnected. 4. Learned ITAT has provided an opportunity of hearing to the other side but, the Petitioner/assessee has raised an objection that independent issues were involved in the cross Appeal and there is no mistake apparent on the face of the record. However, prayer of the Revenue was allowed by the order impugned and the order dated 23.09.2022 was recalled and the matter was posted for re-hearing of both the Appeals. Hence this Petition. 5. At the bar, it is stated that there is no progress though the Petitioner/assessee has informed about the pendency of the Writ Petition to the said authority. 6. Learned Counsel for the Petitioner submits that scope of review provided under Code of Civil Procedure is different from that of powers exercised under Section 254(2) of the Act of 1961 and the said Act enables the power of rectification only when there is 5. At the bar, it is stated that there is no progress though the Petitioner/assessee has informed about the pendency of the Writ Petition to the said authority. 6. Learned Counsel for the Petitioner submits that scope of review provided under Code of Civil Procedure is different from that of powers exercised under Section 254(2) of the Act of 1961 and the said Act enables the power of rectification only when there is mistake apparent from the face of the record or if the said mistake is brought to the notice of the Tribunal by the Petitioner/assessee or the Revenue. He further submits that the term what is a “mistake apparent from the record” has been explained in the matter of Assistant Commissioner, Income Tax, Rajkot vs.Saurashtra Kutch Stock Exchange Limited reported in (2008) 14 SCC 171 wherein, it was held that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish and referred to paras-26 to 28 and 30 which read as follows:- “26. In view of the settled legal position, if the submission of the learned counsel for the Revenue is correct that the Tribunal has exercised power of review, the order passed by the Tribunal must be set aside. But, if the Tribunal has merely rectified a mistake apparent from the record as submitted by the learned counsel for the assessee, it was within the power of the Tribunal and no grievance can be made against exercise of such power. The main question, therefore, is: What is a "mistake apparent from the record"? Now, a similar expression "error apparent on the face of the record" came up for consideration before the courts while exercising certiorari jurisdiction under Articles 32 and 226oftheConstitution.InT.S. Balaram v. Volkart Brothers[(1971) 2 SCC 526] this Court held that: (SCC p. 529, para 5) "5. ... 'any mistake apparent from the record' is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an 'error apparent on the face of the record’." It was, however, conceded in all leading cases that it is very difficult to define an "error apparent on the face of the record" precisely, scientifically and with certainty. 5 27. In the leading case of Hari Vishnu Kamath v. Ahmad Ishaque the Constitution Bench of this Court quoted the observations of Chagla, C.J. in Batuk K. Vyas v. Surat Borough Municipality [AIR 1953 Bom 133], that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it. The Court admitted that though the said test might apply in a majority of cases satisfactorily, it proceeded to comment that there might be cases in which it might not work inasmuch as an error of law might be considered by one Judge as apparent, patent and self-evident, but might not be so considered by another Judge. The Court, therefore, concluded that an error apparent on the face of the record cannot be defined exhaustively, there being an element of indefiniteness inherent in its very nature and must be left to be determined judicially on the facts of each case. The Court stated: (Hari Vishnu case , AIR p. 244, para 23) "23. It may therefore be taken as settled that a writ of 'certiorari' could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated." (emphasis supplied) 28. In Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale this Court referring to Batuk K. Vyas [AIR 1953 Bom 133] and Hari Vishnu Kamath stated as to what cannot be said to be an error apparent on the face of the record. The Court observed: (Satyanarayan case AIR p. 141, para 17) "17. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments. We do not think such an error can be cured by a writ o certiorari according to the rule governing the powers of the superio court to issue such a writ." XXXX 30. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.” He further submits that similar proposition has been reiterated in the matters of T.S Balaram, Income Tax Officer, Company CircleIV, Bombay vs. M/s Volkart Brothers, Bombay reported in (1971) 2 -SCC 526, Commissioner of Income Tax (IT4), Mumbai vs.Reliance Telecom Limited reported in (2021) 20 SCC 174, DevaMetal Powders (P) Ltd. vs. Commissioner, Trade Tax, UttarPradesh reported in (2008) 2 SCC 439 and Commissioner ofCentral Excise, Belapur, Mumbai vs. RDC Concrete (India) PrivateLimited reported in (2011) 12 SCC 166 wherein, it was materially observed that invoking the said power the authority is not permitted to recall its earlier order and the Tribunal is not required to revisit its earlier order and to go into details on merits and powers under Section 254(2) of the Act of 1961 are only to rectify/correct any mistake apparent from the record and referred to para-3.2 of Commissioner of Income Tax (IT-4), Mumbai (supra), which reads as follows:- mistake apparent from the record and referred to para-3.2 of Commissioner of Income Tax (IT-4), Mumbai (supra), which reads as follows:- “3.2. Having gone through both the orders passed by ITAT, we are of the opinion that the order passed by ITAT dated 18-11-2016 [Reliance Communications Ltd. V. CIT, 2016 SCC OnLine ITAT 14331] recalling its earlier order dated 6-9-2013 [CIT v. Reliance Telecom Ltd., 2013 SCC OnLine ITAT 8949] is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 6-9-2013 [CIT v. Reliance Telecom Ltd., 2013 SCC OnLine ITAT 8949], it appears that ITAT has reheard the entire appeal on merits as if ITAT was deciding the appeal against the order passed by the CIT. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order 47 Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record.” He further submits that while passing of the appellate order dated 23.09.2022, the authorities have considered all these aspects and in the application filed by the Revenue, they have failed to point out any perversity in the said order and as such, recalling of the earlier order would tantamount to re-appreciation of the evidence, which is not permissible in the eye of law and prays to allow this Petition by quashing the order impugned. 7. Alternatively, learned Counsel for the Respondent/Revenue supported the order impugned and submits that on the date of passing of the order i.e. 23.09.2022, the Appeal filed by the Revenue was pending consideration and the same was not decided by the said order. He further submits that as there is an error of procedure apparent on the face of the record, therefore, the same has rightly been corrected by way of impugned order. 8. Heard learned Counsel for the parties and perused the order impugned as also the documents annexed herewith carefully. 9. On minute scrutiny of impugned order, it is explicit that on the date of hearing, there were two Appeals; one which was filed by the Petitioner/assessee and the other i.e. cross-Appeal filed by the Revenue, which have been heard together on 29.07.2022 and reserved for orders. A submission has been made by the Petitioner/assessee that as the tax effect involved in the Appeal of the Revenue is below the limit as per the CBDT circular, therefore, Appeal was not maintainable. As the Department has filed cross Appeal, therefore, as per the established judicial propriety, though both the Appeals are heard and also decided together, in order to avoid inconsistent or contradictory findings causing multiplicity of the proceedings and to uphold the principles of natural justice, it appears that no order has been passed in the cross Appeal of the Revenue while passing appellate the order dated 23.09.2023. 10. Taking into consideration the facts and circumstances of the cases and owing to the well settled principle that if there is any Priya error of procedure apparent on the face of the record, the same can be corrected invoking power under Section 254(2), this Court does not find any merit or substance in this Petition, which deserves to be and is hereby dismissed. 11. As the Petitioner/assessee is inclined to prefer a Writ Appeal, therefore, it is directed that no further steps shall be taken against it 10. Taking into consideration the facts and circumstances of the cases and owing to the well settled principle that if there is any Priya error of procedure apparent on the face of the record, the same can be corrected invoking power under Section 254(2), this Court does not find any merit or substance in this Petition, which deserves to be and is hereby dismissed. 11. As the Petitioner/assessee is inclined to prefer a Writ Appeal, therefore, it is directed that no further steps shall be taken against it for a period of 21 days from the date of passing of this order and on filing of such Writ Appeal or any stay being granted therein, the concerned authority shall proceed with the matter in accordance with law. Sd/- (Deepak Kumar Tiwari) JUDGE