Facts of the Case

The respondent-assessee's appeal before the Income Tax Appellate Tribunal (ITAT), Delhi Bench, was disposed of by order dated 4 October 2004. The Tribunal held that payments towards ESI, Provident Fund, Sales Tax, and other statutory dues had not been made by the assessee and, therefore, deduction under Section 43B of the Income-tax Act could not be allowed.

Subsequently, the assessee filed a miscellaneous application seeking rectification of the Tribunal’s order. The assessee contended that only the stay application had been argued and not the appeal itself. It was further asserted that evidence proving timely payment of statutory dues had already been produced before the Assessing Officer and relevant material had also been placed before the Tribunal but remained unnoticed.

Accepting the assessee’s application, the Tribunal, by order dated 13 January 2005, recalled its earlier order dated 4 October 2004. Aggrieved by this recall, the Revenue filed an appeal before the Delhi High Court.

Issues Involved

  1. Whether the Income Tax Appellate Tribunal possesses the power to recall its entire order while exercising powers of rectification under Section 254(2) of the Income-tax Act.
  2. Whether the Tribunal's recall of its earlier order amounted to an impermissible review of its own decision.
  3. Whether the assessee could seek rectification on the ground that relevant evidence regarding payment of statutory dues had not been considered.

Petitioner’s Arguments (Revenue)

The Revenue contended that:

  • The rectification application itself was not maintainable.
  • The Tribunal had no jurisdiction to review or completely recall its final order.
  • The Tribunal had specifically recorded that counsel for the assessee had agreed that the appeal itself may be treated as finally heard and disposed of.
  • No affidavit had been filed by the assessee’s counsel denying the statement recorded by the Tribunal.
  • The Tribunal exceeded its statutory powers by recalling the entire order instead of merely rectifying any apparent mistake.
  • Section 254(2) permits rectification of mistakes apparent from the record but does not confer any power of review.

Respondent’s Arguments (Assessee)

The assessee argued that:

  • The appeal had never been argued for final disposal and only the stay application had been heard.
  • The Tribunal had disposed of the appeal under a misconception.
  • An affidavit filed by a partner of the assessee supported the contention that the appeal had not been argued on merits.
  • Evidence regarding payment of Provident Fund and other statutory dues within the prescribed period had already been furnished before the tax authorities.
  • The Tribunal merely corrected an error and acted in the interest of substantial justice by recalling the order.
  • If relevant evidence had been overlooked, the matter deserved reconsideration.

Court Order / Findings

The Delhi High Court allowed the Revenue’s appeal and held that:

  • The ITAT does not possess any inherent power to review its own orders.
  • A power of review must be expressly conferred by statute and cannot be assumed.
  • Section 254(2) authorizes rectification of mistakes apparent from the record but does not permit the Tribunal to recall and review an entire decision.
  • The Tribunal exceeded its jurisdiction by recalling the complete order dated 4 October 2004.
  • The Tribunal had already recorded that the assessee’s counsel agreed that the appeal itself be treated as finally heard.
  • No affidavit from the concerned counsel was produced to contradict the Tribunal’s recorded proceedings.
  • The affidavit filed by the assessee’s partner was insufficient and carried limited evidentiary value since it was based on information and belief rather than personal presence at the hearing.
  • Consequently, the very foundation on which the recall order was passed could not be sustained.

Accordingly, the High Court set aside the Tribunal’s recall order dated 13 January 2005.

Important Clarification

The Court clarified that:

  • Setting aside the recall order would not deprive the assessee of its statutory right to seek rectification under Section 254(2), if otherwise permissible in law.
  • The assessee was granted liberty to file a fresh rectification application specifically pointing out any mistake apparent from the record, including non-consideration of material evidencing payment of statutory dues under Section 43B.
  • The judgment distinguishes between rectification of an apparent mistake and review/recall of an entire order, emphasizing that the latter is beyond the scope of Section 254(2).

Sections Involved

  • Section 43B, Income-tax Act, 1961 – Deduction on actual payment basis of statutory liabilities such as ESI, Provident Fund, Sales Tax, etc.
  • Section 254(2), Income-tax Act, 1961 – Rectification of mistakes apparent from the record by the Income Tax Appellate Tribunal (ITAT).

Link to Download the Order  https://delhihighcourt.nic.in/app/case_number_pdf/2005:DHC:14130-DB/61319102005ITA5082005_150720.pdf 

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