High Court Of Delhi
Ras Bihari Bansal vs. CIT & Anr.
Section 254(2)
Asst. Year 1988-89 & 1989-90
Madan B. Lokur & V. B. Gupta, JJ.
IT Appeal No. 294 of 2006
30th April, 2007
Counsel Appeared :
B. Mohan, for the Appellant : R.D. Jolly, for the Respondents
JUDGMENT
V.B. Gupta, J. :
The present appeal has been filed by the appellant under s. 260A of the IT Act, 1961 (hereinafter referred to as “the Act”), against the impugned order dt. 20th May, 2005, passed by the Income-tax Appellate Tribunal (hereinafter referred to as “the Tribunal”) in Misc. Appln. No. 427/Del/2004 (in ITA Nos. 2960 to 2961/Del/1999 and C.O. Nos. 235 and 236/Del/2003) for the asst. yrs. 1988-89 and 1989-90, vide which application under s. 254(2) of the Act was dismissed. The assessment order in this case was passed by the AO on 30th March, 1998, assessing the taxable income of the assessee as Rs. 11,65,290. Being dissatisfied with the assessment order, the assessee filed appeals before the CIT(A) who vide order dt. 16th March, 1999, partly allowed the appeals filed by the assessee. Against the order of the CIT(A), the Revenue filed appeals for both the assessment years whereas the assessee filed cross-objections. Vide order dt. 12th Jan., 2004, the Tribunal dismissed the appeals filed by the Revenue and partly allowed the cross-objections filed by the assessee. Thereafter, an application under s. 254(2) of the Act was filed by the assessee and vide the impugned order that application was dismissed. The assessee then filed a writ petition being W.P. (C) No. 466/2006, Ras Bihari Bansal vs. CIT in this Court, but the same was dismissed as withdrawn with liberty granted to the assessee to seek such other remedy as may be available to him under the law.
Being aggrieved against the impugned order, the assessee has filed the present appeal. The question to be seen here in this case is as to whether the present appeal is at all maintainable or not. As per the grounds of appeal, the assessee has challenged the findings of the Tribunal relating to the addition made on account of gross profits at 5 per cent based on commission earned on sale of pipes different from steel items; that the purchases made by M/s Jyoti Steel Enterprises from the assessee were not genuine. It shows that the assessee by way of the present appeal has challenged the findings of the Tribunal in the assessment proceedings as decided on 12th Jan., 2004, which is also apparent from the prayer made in the present appeal that this Court may set aside/vary/modify the impugned order dt. 20th May, 2005, passed by the Tribunal under s. 254(2) of the Act in the miscellaneous application read with order dt. 12th Jan., 2004, passed by the Tribunal under s. 254(1) of the Act.
9. The relevant section for the purpose of disposal of the present appeal is s. 254(2) of the Act, which reads as under : “Sec. 254 (1) …. 254 (2). The Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-s. (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the AO : Provided …”
10. This section enables the concerned authorities to rectify any “mistake apparent from the record”. It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal has not allowed a deduction, even if the conclusion is wrong, that will be no ground for moving an application under s. 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be allowed to be permitted to reopen and re-argue the whole matter, which is beyond the scope of this section.
11. In a decision of this Court in Ms. Deeksha Suri vs. ITAT (1998) 146 CTR (Del) 576 : (1998) 232 ITR 395 (Del), while discussing the scope of s. 254(2) of the Act, it has been observed that (p. 415) : “The foundation for exercising the jurisdiction is ‘with a view to rectify any mistake apparent on the record’ and the object is achieved by ‘amending any order passed by it’. The power so conferred does not contemplate a rehearing which would have the effect of rewriting an order affecting the merits of the case. Else, there would be no distinction between a power to review and a power to rectify a mistake. What is not permitted to be done by the statute having deliberately omitted to confer review jurisdiction on the Tribunal, cannot be indirectly achieved by recourse to s. 254(2) of the Act.”
12. In the present case, according to the assessee, an error has crept in the order of the Tribunal whereby his cross- objections relating to addition made on account of gross profit rate at 5 per cent has been disposed of and the Tribunal has not given attention to the evidence submitted by him.
13. The Tribunal vide the impugned order has observed as under : “We have heard the assessee and also the Departmental Representative with respect to the impugned application and proceed to dispose of the issue on the following lines. It is found that in para 8 of the order of the Tribunal, a reference has been made to the dealings in special steel being carried out by the assessee and also the market condition of special steel industry. It is also noteworthy that the Tribunal in para 9 of its order has opined that the assessee has not given any cogent material to take a view contrary to that of the lower authorities. Be that as it may, the impugned application is misconceived inasmuch as what it seeks the Tribunal to do is to reappreciate the material and evidence already on record, which is clearly contrary to s. 254(2) of the Act. Therefore, having regard to the limited powers of the Tribunal in terms of s. 254(2), the impugned application cannot be entertained.”
14. The assessee in the garb of an application for rectification has sought to reopen and re-argue the whole matter, which is beyond the scope of s. 254(2) of the Act and this is also the finding of the Tribunal. We do not find any reason to disagree with the findings given by the Tribunal on this aspect and the present appeal filed by the appellant is wholly misconceived and is without any basis and we find no infirmity in the impugned order passed by the Tribunal. Accordingly, the present appeal filed by the assessee is hereby dismissed.
[Citation : 293 ITR 365]
