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2011 (3) TMI 1735 - AT - Income TaxApplication filed u/s 254(2) - rectification of errors - It is the plea of the revenue that in the present case, the facts necessary for adjudication of the additional ground of appeal are not available on record and therefore the Tribunal ought to have refused to admit the additional ground of appeal. The revenue has prayed that the above mistake in the order of the tribunal should be suitably rectified. HELD THAT:- There is no averment in the application that the issue sought to be raised by the AO in the present application was argued when the appeal was heard and the tribunal has failed to consider such argument. We have already extracted the order of the Tribunal on the admissibility of the additional ground of appeal. A perusal of the same would show that the only argument raised by the learned D.R. when the appeal was heard was that a claim not made by way of a revised return of income cannot be entertained and he placed reliance on the decision of the Hon’ble Supreme Court in the case of Goetz (India) Ltd.[2006 (3) TMI 75 - SUPREME COURT] . The learned counsel for the Assessee relied on the decision of the Hon’ble Delhi High Court in the case of Jai Parobolic Springs Ltd. [2008 (4) TMI 3 - DELHI HIGH COURT] wherein the Hon’ble Delhi High Court after considering the decision of the Hon’ble Supreme Court in the case of NTPC [1996 (12) TMI 7 - SUPREME COURT] and Goetz (India) held that power of the tribunal to entertain additional ground is not in any way restricted by the ruling of the Hon’ble Supreme Court in the case of Goetz (India) Ltd. In these circumstances, it is not open to the revenue to raise by way of an application u/s.254(2), a new argument which was never advanced when the appeal was heard. It is not open to the revenue to urge an argument by way of application u/s.254(2) of the Act, which was never urged when the appeal was heard. On this short ground the application u/s.254(2) is liable to be dismissed. Where the Tribunal has overlooked the relevant material on record, there would be an error apparent from record which can be rectified by setting aside the order for fresh consideration. Where a material fact brought to the notice of the Tribunal has been lost sight of, the Tribunal has the power to rectify the mistake so committed; provided the material fact has an important bearing on the ultimate decision. The mistake pointed out in the application u/s.254(2) by the revenue in the present case cannot be said to fall in either of the above categories. we are of the view that the present application u/s.254(2) of the Act is devoid of merits and deserves to be dismissed and is hereby dismissed.
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