INCOME TAX OFFICER, JAIPUR vs. VINOD KUMAR JHARCHUR HUF, JAIPUR

per provision of section 154 of the Act after giving an opportunity of being heard. The ld.

DR also placed on record the proof of service of notice and controvert the finding of the

ld. CIT(A). But at the same time ld. DR remain silent and did not controvert the fact that

whether there exists a mistake apparent on record or not. Further the ld. DR informed that

as the issue was raised by the revenue audit team the same is rightly rectified by passing

an order u/s. 154 of the Act. At the same time the ld. DR strongly objected to the

additional ground raised by the ld. AR of the assessee and based on the set of arguments

he has argued in support of the action taken by the ld. AO.

and also gone through the findings of the lower authorities recorded in their respective

21 ITA No. 255/JP/2021 ITO vs. Vinod Kumar Jharchur HUF orders.At the outset we note that the assessee was allowed one opportunity against the

proposal of the ld. AO to rectify the order passed u/s. 143(3) of the Act. At the same time

ld. DR did not controvert the arguments of the ld. AR of the assessee that the whether the

action of the ld. AO is falling within the provision of section 154 of the Act or not?. The

ld. DR merely stated that as there was an audit objection the ld. AO rectified the point of

error pointed out by the revenue audit team. There are no arguments of the ld. DR on

merits of the case so as to controvert the findings of the ld. CIT(A).Since, the appeal of

the assessee was allowed by the ld. CIT(A) on both technical as well as consideration of

the merits of the case and the revenue has challenged this appeal only on the opportunity

ground (technical ground) and did not challenge the ground on the fact that considering

the fact of the case that the mistake is apparent on record or not. Whereas on the other

hand looking to the petition of the ld. AR of the assessee under rule 27 raising the legal

ground at this stage which is based on the ratio decided in favour of the assessee

considering the facts of the case on hand respectfully following the ratio of decision relied

upon by the assessee we consider it to allow the additional ground on merits raised by the

ld. AR of the assessee as the related ground was also raised before the ld. CIT(A). We

have gone through the submission of the assessee and orders of the lower authorities it is

not disputed that the assessee has earned the capital gain and the claimed the deduction

under section 54 of the Act. As the ld. AR of the assessee has already submitted all the

details related to the claim made by the assessee against the capital gain expressly

showing that all the details were submitted and after examination of all the records the ld.

22 ITA No. 255/JP/2021 ITO vs. Vinod Kumar Jharchur HUF AO has taken conscious decision and has allowed the claim after making all the necessary

enquiry. The dispute is only about the amount of the claim allowable to the assessee

which has already reached to finality once the order of the assessment is passed under

section 143(3) of the Act. The ld. DR did not controvert the arguments of the ld. AR of

the assessee that considering the present set of fact the ld. AO did not bring anything in

the notice issued to him so as to demonstrate that in fact there is a mistake apparent on

record. The claim of the assessee is already considered which is based on the submission

on merits in the scrutiny assessment and order has been passed which is based on the

evidences and submission made by the assessee. Merely there is an observation of the

revenue audit party it is not a mistake apparent on record. The ld. AO is in error of

reviewing his own order under section 154 of the Act. Considering the facts placed on

record the bench noted that the issue noted by the ld. AO is not a mistake apparent on

record and is not subjected to revision under the guise of provision of section 154 of the

Act and therefore, order passed under section 154 of the Act lacks jurisdiction as ld. AO

did not demonstrate as to what is the mistake apparent on record and the debatable or

change of opinion is not subject matter of the provision of section 154 of the Act, as the

law allows the mistake apparent on record be rectified which is expressly not

demonstrated before us and see that there exist no mistake which is apparent on record.

The law duly empowers the revenue to invoke other provision to consider the audit

objection but the same is not permitted under the provision of section 154 of the Act as it

done by the AO.

23 ITA No. 255/JP/2021 ITO vs. Vinod Kumar Jharchur HUF

CIT(A)/NFAC and accordingly decline to interfere. Hence the ground of the appeal of the

revenue is dismissed.

of ITAT Rules, 1963 is allowed and the appeal filed by the revenue is dismissed.

Order pronounced in the open court on 18 /10/2022

Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (Dr. S. Seethalakshmi) (RATHOD KAMLESH JAYANTBHAI) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 18/10/2022 *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- ITO, Jaipur izR;FkhZ@ The Respondent- Vinod Kumar Jharchur HUF,Jaipur 2. vk;dj vk;qDr@ The ld CIT 3. vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 255/JP/2021) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेजज. त्महपेजतंत