TMI Blog2006 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 254(2) and that of the Hon'ble High Court und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: "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 if the Court is satisfied of the injustice th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decided the issue in favour of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accordingly substitute paras 23 to 26 in place of paras 23 to 26 of our order dt. 7th April, 2005 as under: "23. Now, in the case of Vesta Investment Trading Co. (P) Ltd., there is a decision 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-93 to 1998-99 M/s Jupiter Investment (P) Ltd., Chandigarh. 24. We now take up the remaining appeals of other assessees. There is no decision of the Tribunal in the case of other assessees. Though in some cases in earlier years the sale of shares reflected in the books of account under investment portfolio had been accepted by the Revenue on capital account in subsequent years on the basis of the principles laid down 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 170/2003 and 171/2003, 795 to 798/2002, 22/2003, 166/2003 and 167/2003, 782 to 785/2002, 16/2003, 58/2003 and 59/2003, which are dismissed, all the remaining appeals of the Revenue are allowed for statistical purpose as indicated above." 8. It may be pertinent to mention here that suo motu action was initiated in these matters by the Bench on the report of the Registry about the following alleged mistake in the order: "There is a mistake in the order of the Tribunal passed in 48 Departmental appeals on 7th April, 2005 insofar as ITA Nos. 775 and 776/2002 for asst. yrs. 1991-92 and 1992-93, in the case of M/s Astral Investment Trading Co. (P) Ltd., Chandigarh, and ITA No. 411/2003 for asst. yr. 1992-93 in the case of M/s Ambresh Investment Trading Co. Ltd., Chandigarh had been dismissed by the Tribunal. So, however, in the conclusion in paras 24 and 26, these have been wrongly included. Therefore, rectification is required in the order. This error has not been pointed out by the assessees in their Misc. Appln. Nos. 185 to 232/Chd/2005 arising out of the abovementioned appeals. Since the applications are to be disposed of, it is considered necessary to give an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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