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CIT Faizabad vs. Shri. Rajesh Kumar Pandey S/o Shri. Jagdish Prasad Pandey Vill. & Post Gondey, Pratapgarh
June, 13th 2012
                LUCKNOW BENCH "A", LUCKNOW


                             M.A No.04/LKW/2012
                    [Arising out of ITA No. 230/LKW/2011]
                           Assessment Year:2006-08

CIT                      v.       Shri. Rajesh Kumar Pandey
Faizabad                          S/o Shri. Jagdish Prasad Pandey
                                  Vill. & Post Gondey, Pratapgarh
(Applicant)                       (Respondent)

           Applicant by:      Shri. K. C. Meena, D.R.
           Respondent by:     Shri. G. N. Srivastav, ITR

           Date of hearing:       08.06.2012
           Date of pronouncement: 08.06.2012



           In this application dated 5.3.2012, the Revenue seeks rectification
of the order dated 19.8.2011 passed by the Appellate Tribunal Lucknow
Bench in ITA No. 230/LKW/2011 for assessment year 2006-07 on the
ground that the Tribunal committed a mistake in setting aside the order
passed under section 263 of the Act on the ground that there was no
satisfaction of the Commissioner before taking up the proceedings which
was statutory requirement and also that the notice was not signed by the
Commissioner himself but had been signed by the Income-tax officer

2.         The ld. D.R., Shri. K. C. Meena pressed the facts as are stated in
the application while Shri. Praveen Kumar, CIT (DR) joined the proceedings
and contended that the solitary requirement of section 263 of the Act is
that an opportunity of being heard is to be afforded to the assessee before
holding the assessment order to be erroneous and prejudicial to the


interest of the Revenue. He, therefore, required the Tribunal to recall the
order as it suffers from a mistake of apparent fact which was perverse and
contrary to the requirement of statute.

3.       On the other hand, the ld. counsel for the assessee, Shri. G. N.
Srivastava placed a copy of notice issued in ITA No. 47/2011 by Hon'ble
Allahabad High Court at Lucknow Bench in quantum appeal by Revenue
saying that the issue of order being erroneous has already been challenged
by the Revenue in the aforesaid appeal and the same is pending for
adjudication. In this view of the matter, it cannot be contended that the
order of the Tribunal suffers from mistake rectifiable within the meaning of
section 254(2) of the Act.

4.       Heard parties with reference to the material on record. Essentially
the requirement of section 263 of the Act is only of giving an opportunity of
being heard to the assessee and in the expressed terms it does not require
a notice to be served on the assessee or a satisfaction to be recorded in
that regard as has also been held by the Hon'ble Apex Court in the case of
CIT v. Electro House, 82 ITR 824 (SC) at page 827 and in the case of Gita
Devi Aggarwal v. CIT [1970] 76 ITR 496 (SC). That being so, the Revenue
may have a good prima-facie case in its favour to say that the order dated
19.8.2011 of the Appellate Tribunal is erroneous, it however cannot be
taken as an order suffering from mistake rectifiable within the meaning of
section 254(2) of the Act, more so when the matter is being agitated by the
Revenue in appeal No.47/2011 before the Hon'ble High Court of Allahabad
at Lucknow Bench. In these circumstances, we do not find any mistake
that can be rectified under section 254(2) of the Act and accordingly reject
the same as pronounced in the open court in the presence of parties
immediately after conclusion of hearing on 8.6.2012.

        Sd/-                                                Sd/-
[SUNIL KUMAR YADAV]                                     [B. R. JAIN]
  JUDICIAL MEMBER                                   ACCOUNTANT MEMBER


Copy forwarded to:
  1.   Appellant
  2.   Respondent
  3.   CIT(A)
  4.   CIT
  5.   DR
                             Assistant Registrar
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