Anupam Sushil Garg v. Commissioner Of Income-Tax And Another

Dr. B.S Chauhan, J.:— This appeal under the provisions of section 260A of the Income-tax Act, 1961 (hereinafter called “the Act”), has been filed time-barred. There is a delay of 29 days. For the reasons mentioned in the affidavit and after hearing Shri Mahajan, learned counsel for the Revenue, we are satisfied that the application for condonation of delay in filing the appeal deserves to be allowed and the delay is condoned.

2. This appeal has been filed against the order dated February 26, 2003, passed by the Income-tax Appellate Tribunal, Delhi Bench “E”, Delhi, in M.A No. 349.BK of 2002, for the assessment year 1994-95.

3. The facts and circumstances giving rise to this case are that an assessment for the year 1994-95, was made by the assessing authority showing his agricultural income for the year 1994-95 as Rs. 36,04,821. The assessing authority after considering the record estimated the agricultural income of the appellant at Rs. 5 lakhs and held that the balance amount to the tune of Rs. 31,04,821 was from undisclosed sources.

4. Being aggrieved and dissatisfied, the appellant preferred the first appeal before the Commissioner of Income-tax (Appeals), Muzaffarnagar, and the appeal was dismissed by granting a relief of Rs. 1 lakh. Being aggrieved and dissatisfied by the order dated December 28, 1998, the appellant preferred the second appeal before the Income-tax Appellate Tribunal, however, the appeal was disposed of ex parte vide order dated December 29, 2000. Being aggrieved, the appellant filed an application under section 254(2) of the Act on the ground that the ex parte judgment and the order of the Appellate Tribunal was liable to be recalled on the ground that the appellant had not been given the opportunity of hearing as notice had not been issued to him by the Tribunal. The plea of the appellant is that he has changed his address after filing the appeal and the notice has not been served upon him at the changed address, which was accepted and vide order dated May 7, 2002, the application was allowed.

5. However, the appeal has again been decided on the merits ex parte vide judgment and order dated October 25, 2002. Being aggrieved the appellant again filed an application under section 254(2) of the Act and the said application has been dismissed vide impugned order dated February 26, 2003. Hence this appeal.

6. Shri Piyush Agarwal, learned counsel for the appellant, has submitted that the appellant had not been served the notice by the Tribunal before passing the order in appeal on October 25, 2002, at his changed address, therefore, the application under section 254(2) of the Act ought to have been allowed. On the contrary, Shri Mahajan, learned counsel appearing for the Revenue, has submitted that the scope of section 254(2) of the Act is very limited and as there is nothing on the record to show that the appellant had ever furnished his changed address to the Tribunal, the question of sending the notice to him at the changed address does not arise and in a limited scope of interference under section 254(2) of the Act, as there was no error apparent from the record, the Tribunal could not recall the order dated October 25, 2002, and has rightly dismissed the application and there is no merit in the appeal, nor it raises any substantial question of law, therefore, it is liable to be dismissed at the threshold.

7. The Tribunal while considering the application in this case under section 254(2) of the Act has considered the judgment of the Delhi High Court in Baljeet Jolly v. Commissioner Of Income-Tax.., [2001] 250 ITR 113, wherein it has been held that in order to attract the power to rectify under section 254(2) of the Income-tax Act, 1961, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or disputed question of fact is not a mistake apparent from the record. The plain meaning of the word “apparent” is that it must be something which appears to be so ex facie and is incapable of argument or debate. While considering the said case, the judgment of this court in Bishwanath Prasad & Sons v. Commissioner Of Income-Tax, [1987] 163 ITR 715 was followed. Further reliance has been placed by the learned Tribunal on the judgment of the Delhi High Court in J.N Sahni v. ITAT, [2002] 257 ITR 16, wherein after considering a large number of judgments it was held that the power of the Tribunal to amend an order passed by it under section 254(1) of the Act is very much limited, it is confined to rectification of a mistake apparent from the record. The Tribunal has no inherent power of review, therefore, under the garb of rectification of a mistake, the Tribunal is not competent to recall the earlier order passed on the merits. Similarly, in Seth Madan Lal Modi…Petitioner/; v. Commissioner Of Income-Tax (Central)…/Petitioner., [2003] 261 ITR 49, it has been held by the Delhi High Court that the Tribunal was justified in passing an order under section 254(2) of the Act, where the order had been passed placing reliance on a wrong provisions of law and the provisions of law under which the appeal has been decided were not attracted at all, hence rectification of the mistake was necessary and had rightly been done by the Tribunal.

8. In the instant case the judgment in Seth Madan Lal Modi, [2003] 261 ITR 49 (Delhi) has no application, as the facts are quite distinguishable. The learned Tribunal was fully justified in placing reliance upon the other referred judgments of the Delhi High Court. As the appellant could not satisfy us as to on what date the appellant had furnished the new address to the Tribunal and what has been his new address, we fail to appreciate what was the occasion for the Tribunal to send a notice to him at the new address. The appellant cannot be permitted to take the benefit of his own mistake, (vide Montreal Street Railway Company v. Normandin, AIR 1917 PC 142; National and Grindlays Bank Ltd. v. Dharamshi Vallabhji, [1966] 2 All ER 626 (PC); G.S Lamba v. Union of India [1985] 2 SCC 604; Narender Chadha v. Union of India, (1986) 2 SCC 157 : AIR 1986 SC 638; Jose v. Alice [1996] 6 SCC 342 and T. Srinivasan v. T. Varalakshmi (Mrs). [1998] 3 SCC 112).

9. There is another aspect of the matter that under the garb of rectification, the appellant cannot have an opportunity of review of the order passed earlier in the absence of any provisions for substantive review under the said provisions of law.

10. It is a settled proposition of law that what cannot be done “per directum is not permissible to be done per obliquum”, meaning thereby, whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud.”

11. In Jagir Singh v. Ranbir Singh, (1979) 1 SCC 560 : AIR 1979 SC 381, the apex court has observed that an authority cannot be permitted to evade a law by “shift or contrivance”. While deciding the said case, the Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester, [1824] 2 B & C 635, wherein it has been observed as under (page 384):

“To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined.”

12. Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the apex court in M.C Mehta v. Kamal Nath, (2000) 6 SCC 213 : AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of article 142 of the Constitution, which empowers the court to pass any order in a case in order to do “complete justice.”

13. There is no pleading in the instant appeal even before this court that the appellant had ever furnished his new address to the Tribunal on which the Tribunal was required to serve him the notice. In the absence of specific pleadings the case advanced by the appellant cannot be accepted. The appellant did not mention under section 254(2) of the Act that he had furnished his fresh address to the Tribunal on which he has not been served the notice.

14. It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the court is under no obligation to entertain the pleas, (vide Bharat Singh v. State of Haryana, (1988) 4 SCC 534 : AIR 1988 SC 2181; Larsen and Toubro Ltd. v. State of Gujarat, [1998] 92 Comp Cas 373 (SC) : (1998) 4 SCC 387 : AIR 1998 SC 1608; National Buildings Construction Corporation v. S. Raghunathan, [1999] 94 FJR 285 (SC) : (1998) 7 SCC 66 : AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani [1999] 1 SCC 141; Chitra Kumari v. Union of India, (2001) 3 SCC 208 : AIR 2001 SC 1237 and State of U.P v. Chandra Prakash Pandey, (2001) 4 SCC 78 : AIR 2001 SC 1298).

15. In Atul Castings Ltd. v. Bawa Gurvachan Singh, (2001) 5 SCC 133 : AIR 2001 SC 1684, the apex court observed as under (page 1688):

“The findings in the absence of necessary pleading and supporting evidence cannot be sustained in law.”

16. Similar view has been reiterated in Vithal N. Shetti v. Prakash N. Rudrakar [2003] 1 SCC 18.

17. Thus, in view of the above, it is held that in the absence of specific pleadings even before this court, we are of the considered opinion that the appellant had not furnished his fresh address to the Tribunal and in the absence of that there was no occasion for the Tribunal to serve him a notice at the changed address. The appellant cannot be permitted to take the benefit of his own mistake by not furnishing the fresh address. Under the garb of rectification he cannot seek the review which is not provided under the statutory provisions.

18. The appeal is devoid of any merit and is accordingly dismissed.