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TMI Blog2006 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... the application under s. 254(2), a question was raised as to whether the Tribunal can exercise its powers under s. 254(2) when appeal against the said order has been admitted by the Hon'ble jurisdictional High Court under s. 260A and is pending disposal. Apart from making submissions before the Bench, the learned counsel for the applicant-assessee has filed written submissions to support the contention that the Bench of the Tribunal does not lose its power under s. 254(2) to rectify any mistake apparent from record merely because the High Court has admitted an appeal in regard to substantial question(s) of law. The learned Departmental Representative was given a copy of the written submissions moved by the assessee's representative and was asked to respond. However, till date no response has been received. We accordingly proceed to decide the issue on the basis of material on record and the contentions advanced in the course of hearing and also taking into account, the written submissions filed on behalf of the assessee-applicant. 3. On consideration of rival contentions and material on record, we are satisfied that there is no conflict in the jurisdiction of the Tribunal under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93) Suppl. (4) SCC 595, have observed as under: "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the roof from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In administrative law the scope is still wider. Technicalities apart i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eating the sale of shares on capital account being in consonance with the decision of the Tribunal in assessee's own case and there being no change in facts. The Hon'ble Supreme Court in the case of Dalhousie Investment Trust Co. Ltd., have laid down certain principles for determining the nature of the transaction in shares in the case of an investment company. The decision on the basis of such principles is dependent on the findings of fact recorded by the Tribunal. The Tribunal having recorded a finding of fact in the case of Vesta Investment & Trading Co. (P) Ltd. on the basis of evidence on record, it was not permissible to AO to come to a different conclusion without there being any change in facts or in law. The decision of the CIT(A) in the case of Vesta Investment & Trading Co. (P) Ltd. in ITA Nos. 791/2002 and 172/2003 is also accordingly upheld. These appeals of the Revenue are also dismissed." The Bench has also recorded at p. 26 para 24 "There is no decision of the Tribunal in the case of other assessees." "It has been brought to our notice that this observation which is crucial, is contrary to the facts on record insofar as in the following cases the Tribunal had dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Tribunal for the asst. yr. 1991-92 wherein it has been held that the initial intention of the assessee was to hold the shares as investments and on the basis of attendant facts and circumstances a conclusion has been arrived at that the investment made by the assessee was on capital account and not with an intention of trading in respect of such shares. A decision has been arrived at by the Tribunal on the basis of appraisal of facts and law. Even if it is presumed that a different conclusion on the same set of facts is possible, it has got to be borne in mind that the co-ordinate Bench of the Tribunal does not sit in judgment on the decision of another Bench of the Tribunal. Keeping that principle in view, we are of the considered view that in the case of Vesta Investment & Trading Co. (P) Ltd., the CIT(A) was justified in treating the sale of shares on capital account being in consonance with the decision of the Tribunal in assessee's own case and there being no change in facts. The Hon'ble Supreme Court in the case of Dalhousie Investment Trust Co. Ltd., have laid down certain principles for determining the nature of the transaction in shares in the case of an inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by the Hon'ble Supreme Court in the case of Dalhousie Investment Trust Co. Ltd., it was permissible to the ITO to examine the issue afresh. During the course of assessment proceedings under s. 143(3), the AO had asked the assessee to establish the initial intention and the basis for treating the shares under investment portfolio. It seems the respondents had been under the impression that the Tribunal having already decided the issue in the case of sister-concern, namely, M/s Vesta Investment & Trading Co. (P) Ltd. in favour of the assessee, no further proof was necessary to establish the initial intention. In our considered view, on the basis of the principles laid down by the Hon'ble Supreme Court in the cases. referred to elsewhere in this order, particularly in the case of Dalhousie Investment Trust Co. Ltd., the mere entries in the books of account are not sufficient to establish the initial intention of the assessees. Therefore, the AO was justified to make enquiry. We may fairly state that the learned counsel for the assessees made an attempt to impress upon us the circumstances under which the shares of various companies had been treated as investments and not as stock- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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