The division bench of the Bombay High Court in Ashish Gandhi Builders & Developers Ltd v ITAT & Ors, held that the recorded by the ITAT cannot be contradicted by Affidavit or otherwise.
The division bench comprising of Justice M.S Sanklecha and Justice A.K Menon clarified that the mere filing of the paper book is no indication of the fact that the case law referred to in paper book was relied upon and submissions made on it during course of hearing of the appeal.
The bench was hearing a writ petition against the rectification order of the ITAT wherein the Tribunal dismissed the rectification application filed by the appellants. The appellants claimed that non-consideration of a precedent cited by the appellants in the paper book constitutes an ‘error apparent on the face of the records’. However, the Tribunal rejected the application by recording a finding that “We have referred to Log book of 9th September, 2015 and find that all the cases referred by the assessee have been dealt with.”Aggrieved by the order, the appellants approached the High Court by contending that the Tribunal erred in not considering the case law cited by them, which according to them, applies on all fours to the facts of the petitioner’s case and is in its favour.
The bench, referring a catena of decisions delivered by the Apex Court, noted that it is a well settled position of law that statement of fact recorded in the order of the Court/Tribunal has to be accepted as correct and conclusive and the same cannot be contradicted by affidavit.
Dismissing the petition, the bench said; “thus, mere filing of the paper book is no indication of the fact that the case law referred to in paper book was relied upon and submissions made on it during course of hearing of the appeal. Moreover, in cases such as this where it is contended by a party that particular case was not considered by the Court/Tribunal/Adjudicating Authority was cited during the course of hearing and is relevant to the issue, then a party would be expected to move the Tribunal as quickly as possible. This for the reason that the issues would be fresh in the mind of the Court/Tribunal/Adjudicating Authority. Once the Tribunal has recorded a finding that all cases referred to by the assessee during hearing have been dealt with by the Tribunal it must follow that the decision of the Gujarat High Court in Manilal Tarachand was not relied upon during hearing held on 9th September, 2015 leading to the order dated 14th September, 2015.”
Read the full text of the order below.
