"आयकर अपीलȣय अͬधकरण Ûयायपीठ “एक-सदèय” मामला रायपुर मɅ IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH “SMC”, RAIPUR Įी पाथ[ सारथी चौधरȣ, ÛयाǓयक सदèय क े सम¢ BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. No.31/RPR/2025 (Arising out of ITA No.328/RPR/2025) Ǔनधा[रण वष[/Assessment Year : 2015-16 The Income Tax Officer-1(1), Raipur (C.G.) .......अपीलाथȸ / Applicant बनाम / V/s. Surya Land Developers C/o. Shri Ashok Khemka, Satyanarayan, Dharamshala, Station Road, Raipur (C.G.) PAN: AAYFS5301E ……Ĥ×यथȸ / Respondent Assessee by : Shri Veekaas S Sharma, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 20.02.2026 घोषणा कȧ तारȣख / Date of Pronouncement : 20.03.2026 Printed from counselvise.com 2 MA No.31/RPR/2025 आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM The captioned Miscellaneous Application has been filed by the Revenue arising out of the order passed by the Tribunal in ITA No.328/RPR/2025 for assessment years 2015-16 u/s.254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’), dated 03.07.2025. 2. The Revenue by filing the captioned miscellaneous application submitted as follows: (relevant extract) “5. The decision of the Hon'ble ITAT is not acceptable in principle as it has utterly failed to decide the case on merits, It has quashed the assessment order merely for want of jurisdiction, The ITAT failed to take into account the provisions of section 124 of the Act, It is evident that the objection raised by the assessee stands barred as the assessee had participated in the assessment proceeding and didn't raise any objection pertaining to the jurisdiction and the assessee has no right to challenge the jurisdiction related matter before the appellate stage. In support, I would also like to put reliance upon the decision of Supreme Court in case of DM Vs. Kalinga Institute of Industrial Technology (2023) 149 taxmann.com 357 wherein the Hon'ble Apex Court held that action 124(3) of the Act precludes an assessee from questioning the AO's jurisdiction if they don't do so within 30 days of receiving notice u/s 142(1) of the Act. By participating in the proceeding without objection, the assessee lost the right to later challenge the jurisdiction. I would also like to discuss the decision of the Hon'ble Chhattisgarh High Court in case of DCIT Vs. Sunita Finlease Ltd. (330 1T1 491) and UCO Bank GVs. CIT (237 ITR 889, SC) wherein it has been emphasized that departmental instructions are binding; however, jurisdictional issues can't be raised for the first time at appellate stage without showing prejudice. The Hon'ble Supreme Court in case of Kanwar Printed from counselvise.com 3 MA No.31/RPR/2025 Singh Vs. Union of India (AIR 1961 SC 532) and several High Courts have held that the jurisdictional objection must be raised at the earliest opportunity; failure to do so amounts to waiver. 6. Order of Hon'ble ITAT in ITA No. 328/RPR/2025 dated 03.07.2025 reveals that Hon'ble ITAT has allowed the appeal of the assessee, accepting those grounds of assessee, which were never raised by it at first appellate proceeding and quashed order citing invalid jurisdiction. The present order of the Hon'ble ITAT is contrary to its own decision in similar matter, in the case of Shri Harish Kumar Chhabada Vs. Income Tax Officer-2(1) in ITA No.323/RPR/2026, dated 12.12.2022 for Asstt. Year 2012-13, where Hon'ble ITAT had dismissed the appeal of assessee stating that AO had not exceeded jurisdiction and found no substance in grounds of appeal of assessee. 6.1 In this regard, Hon'ble High Court of Bilaspur in the case of Harish Kumar Chhabada, vs. Pr. Commissioner of Income Tax in TAXC No. 138 of 2023 179 taxmann.com 589 (Chhattisgarh) has held that where assessee didn't raise objection qua jurisdiction of Assessing Officer till its appeal was decided by Commissioner (A) plea with regard to territorial jurisdiction of assessing Officer was barred by virtue of section 124(3)(a) of the Income Tax Act, 1961 and sustained the order passed by Hon'ble ITAT in ITA No. 323/RPR/2016 dated 12.12.2022 as discussed above. Thus, present order of the Hon’ble IIAT is perverse, bad in law and required rectification in view of settled position of jurisdiction High Court. 6.2 Further, Hon'ble Supreme Court Judgement in the case of Asstt. Commissioner of Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd. 120081 179 taxman 322 (SC) held that the non-consideration of the judgment of the jurisdictional High Court or of Supreme Court can be said to be \"mistake apparent from record\" which can be rectified u/s 254(2) of the Act. Thus, present order of Hon'ble ITAT in ITA No. 328/RPR/2025 dated 03.07.2025 is amenable for rectification and is binding as per law. 6.3 The above gets further support, as Hon'ble ITAT, Ralpur in past had rectified its own order u/s.254(2) of the Act in the case of DCIT-1(1), Bhilai Vs. N.R. Wires (P) Ltd. in MA No.01/RPR/2023 (arising out of ITA No.67/RPR/2019), stating that said order suffered from mistake apparent from Printed from counselvise.com 4 MA No.31/RPR/2025 record subsequent to decision of Supreme Court in Checkmate Services (P.) Ltd. Vs. CIT {2022} 143 taxmann.com 178 [20231 290 Taxman 19/[20221 448 ITR 518.” 3. The Tribunal vide its order dated 03.07.2025 has provided relief to the assessee by holding that as clearly evidenced that the return of income was filed by the assessee above Rs.10 lacs, for which, the jurisdiction was vested only with the DCIT/ACIT-1(1), Raipur and not with ITO-1(4), Raipur and that since in the present case, the assessment has been framed u/s.143(3) of the Act dated 28.12.2017 by the ITO-1(4), Raipur who lacked inherent valid jurisdiction, therefore, the same is held invalid, void ab initio, and the order of assessment is quashed. The relevant observations of the Tribunal are extracted as follows: “7. Reverting to the facts of the present case as examined aforesaid, it is clearly evidenced that the return of income was filed by the assessee above Rs.10 lacs, for which, the jurisdiction vested only with the DCIT/ACIT of Income Tax- 1(1), Raipur and not with ITO, Ward-1(4) and that since in the present case, the assessment has been framed u/s. 143(3) of the Act dated 28.12.2017 by the ITO, Ward-1(4), Raipur who lacked inherent jurisdiction, therefore, the same is held as invalid, void ab initio, and the order of assessment is quashed. 8. That once the assessment order is quashed, then all other subsequent proceedings becomes non-est in the eyes of law. 9. That, on the same parity of reasoning, following the afore-stated order, I find merit in the contention raised by the assessee and this legal ground is answered in favour of the assessee. That, therefore, all other grounds including any other legal grounds, if any, shall become academic only. 10. In the result, appeal of the Assessee is allowed.” Printed from counselvise.com 5 MA No.31/RPR/2025 4. Coming to the contents of the miscellaneous application of the Department, I am of the considered view that the Revenue in the garb of the present miscellaneous application has sought review of the order of the Tribunal which is not permissible within the purview of Section 254(2) of the Act. That further, the Revenue has tried to point out apparent mistake from record by placing reliance on the judgment of the Hon’ble Apex Court in the case of ACIT Vs. Sourashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC). At this stage, it is pertinent to point out that similar contention had been raised by the Ld. Sr. DR in another miscellaneous application filed by the Department in the case of ACIT Vs. Ravi Sherwani, MA No.107/RPR/2023, A.Y.2013-14 which was dismissed by the Hon’ble Judicial Member and subsequently, due to difference of opinion between the Hon’ble Judicial Member and the then Hon’ble Accountant Member, a Third Member Bench was constituted consisting of Hon’ble Vice President (Pune Zone). As per the order of the Third Member Bench dated 04.02.2026, it was held that Hon’ble Judicial Member was correct in dismissing the miscellaneous application filed by the Revenue. Therefore, contention made at Para 6.2 of the miscellaneous application is nothing but repeated argument by the Ld. Sr. DR which has already been overturned by the decision of the Third Member Bench. Printed from counselvise.com 6 MA No.31/RPR/2025 5. As the Revenue had failed to point out any mistake which is apparent, obvious, patent and glaring from record, therefore, I am of the considered view that the Revenue in the garb of the aforesaid miscellaneous application is seeking a review of the order passed by the Tribunal in ITA No.328/RPR/2025, dated 03.07.2025 which is beyond the scope of the powers of the Tribunal as envisaged u/s.254(2) of the Act. My aforesaid view is supported by the judgment of the Hon'ble Supreme Court in the case of T.S. Balaram, ITO v. Volkart Bros., (1971) 82 ITR 50 (SC), wherein the Hon'ble Apex Court had held as under: \" ....A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question.......an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on debatable point of law is not a mistake apparent from the record........\" Also, a similar view had been taken by the Hon'ble Supreme Court in the case of Commissioner of Income Tax (IT-4) Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC), wherein it was held as under: \"From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to Printed from counselvise.com 7 MA No.31/RPR/2025 relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that.” 6. Accordingly, the miscellaneous application filed by the Revenue being devoid and bereft of any merit is dismissed. 7. In the result, the miscellaneous application filed by the Revenue is dismissed. Order pronounced in open court on 20th day of March, 2026. Sd/- (PARTHA SARATHI CHAUDHURY) ÛयाǓयक सदèय/JUDICIAL MEMBER रायपुर / Raipur; Ǒदनांक / Dated : 20th March, 2026 SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The Pr. CIT-1, Raipur (C.G.) 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, “एक-सदèय” बɅच, रायपुर / DR, ITAT, “SMC” Bench, Raipur. Printed from counselvise.com 8 MA No.31/RPR/2025 5. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur Printed from counselvise.com "