Sandeep Singh Karhail ORDER
Sandeep Singh Karhail, Member (J)
1. By way of these Miscellaneous Applications under section 254(2) of the Income Tax Act, 1961 ("the Act"), the assessee seeks recall of the common order dated 27/09/2021, passed under section 254(1) of the Act by the coordinate bench of Tribunal in assessee's appeals being ITAs no. 5066 & 5067/Mum./2019, for the assessment year 2011-12 and 2010-11, to the extent of adjudication of ground No. 1.
2. During the course of hearing, learned Authorised Representative ('learned AR') submitted that ground raised by the assessee challenging the non-issuance of notice under 143(2) of the Act was not adjudicated by the coordinate bench of the Tribunal. Learned AR, by placing reliance upon decision of Hon'ble Supreme Court in NTPC vs. CIT, MANU/SC/1287/1997 : (1998) 229 ITR 383 (SC), submitted that legal issue can be raised at any stage of the proceedings. However, the coordinate bench has rendered its decision without considering the decision rendered by the Hon'ble Supreme Court in NTPC (supra) and therefore non-consideration of decision of Hon'ble Supreme Court constitutes a mistake apparent from record.
3. On the other hand, learned Departmental Representative vehemently opposed the prayer for recall of the order to the extent of adjudication of ground No. 1 by the coordinate bench of the Tribunal.
4. We have considered the rival submissions and perused the material available on record. The relevant findings of the coordinate bench of the Tribunal vide common order dated 27/09/2021, which are sought to be recalled by the assessee, are as under:
"7. We have considered rival submissions in the light of the decisions relied upon and perused materials on record. Insofar as the grounds raised by the assessee challenging the validity of the assessment orders due to alleged non issuance of notice under section 143(2) of the Act, we have observed, before the first appellate authority the assessee had not raised any specific ground on the issue. Of course, in the written submission filed before learned Commissioner (Appeals), the assessee has made a passing reference to non issuance of notice under section 143(2) of the Act. However, it is an admitted factual position; neither the assessee nor his authorized representative appeared before the first appellate authority to make any substantive argument on the issue. In fact, at paragraph 2.1 of the appellate order, learned Commissioner (Appeals) has clearly mentioned that except filing the written argument on 07.06.2019, the assessee of his authorized representative never appeared but kept on filing letters seeking adjournment. Thus, he proceeded to dispose of the appeals ex parte. Thus, when before the departmental authorities the assessee had neither raised any specific ground nor had made any substantive argument with regard to alleged non issuance of notice under section 143(2) of the Act, at this stage, we cannot entertain the plea of the assessee as it would require fresh investigation into facts, even, may require examination of records, which has not been done at any stage earlier. In fact, learned Commissioner (Appeals) has not recorded any specific finding with regard to the alleged non issuance of notice under section 143(2) of the Act, presumably because, assessee never advanced any substantive argument on the issue. Thus, in the aforesaid view of the matter, we are disinclined to entertain assessee's plea on the issue. Accordingly, ground 1 in both the appeals is dismissed."