TMI Blog1998 (12) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... h were on merits of the case were decided against the assessee by observing as follows: "On merits, therefore, the case is decided against the assessee." 4. As a whole, the appeal was decided in favour of the assessee by this Bench by holding in the last para (para 31) as follows: "Since on the first issue of reopening of assessment we have quashed the assessment order, in effect the appeal shall be treated as allowed." 5. By this application, the assessee has pointed out that the Tribunal has allowed the assessee's appeal on the ground of reopening of the assessment, which was held to be bad in law. However, instead of stopping at that stage, this bench went further and decided the appeal against the assessee on merits, which was not necessary. While doing so, certain mistakes apparent from the record have crept in the said order, which need rectification. 6. In the judgment of the Calcutta High Court in the case of Rawatmal Harakchand v. CIT [1981] 129 ITR 346, the Hon'ble Calcutta High Court has taken a view that once the appeal is decided on preliminary ground, then the Courts should not decide the merits of the case. It has further been submitted that the Tribunal ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for rectification, filed in the said case is still not disposed of. This Hon'ble Tribunal should have waited for the disposal of the said Misc. application before relying on the said judgment in a hurry. This Hon'ble Tribunal has also not given due regard to the second judgment in the case of Ramkrishna Bajaj delivered in [IT Appeal No. 7620 (Bom.) of 1993 dated 15-5-1995] by the Hon'ble Tribunal at Mumbai. In the end, it has been prayed as under: "In the light of the facts cited above, it is respectfully submitted that the aforesaid mistakes are patent on the face of records and go to the root of the matter and therefore, in the interest of justice, equity and good conscience, the said errors be rectified and consequential effect be given." 9. Shri Y.P. Trivedi, the learned counsel for the assessee submitted that the Tribunal had allowed the assessee's appeal on the vital ground of reopening of the assessment which was held to be bad in law and after having done so, the Tribunal should have stopped there and not given its verdict on the merits of the case. After the assessment had been quashed on the preliminary issue, all other issues had become academic in nature and such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT [1957] 31 ITR 844, the learned counsel submitted that the Hon'ble High Court equates the position of the Income-tax Appellate Tribunal as an Appellate Court which is on par with the Appellate Court as defined in the Common Law i.e., the Civil Procedure Code and further goes on to suggest that the Income-tax Appellate Tribunal has all the trappings of the Appellate Court as defined in the Civil Procedure Code. He further submitted that the Hon'ble Supreme Court in the case of Udhavdas Kewalram v. CIT [1967] 66 ITR 462 further laid down the law that the Income-tax Appellate Tribunal has to adjudicate upon all facts and law in that regard. 11. The learned counsel for the Revenue further submitted that the scope of jurisdiction of this Tribunal is limited to the extent of correcting the error apparent on the face of record or on any "pulpably error" manifest on the face of record which undermines its soundness and/or results in miscarriage of justice. He further submitted that the applicant is more concerned with the so-called remark rather than any error of law or fact. According to the learned counsel for the Revenue, the so-called remark is not a remark but a finding of fact a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has been given to the very sound and logical ratio of the said Calcutta High Court judgment. With regard to the submissions of the learned counsel for the Revenue that the applicant is more concerned with the so-called remark rather than any error of law of facts, Shri Trivedi submitted that the applicant's objection is not merely confined to a particular remark, but it is directed to the entire finding, which is given without considering- the applicant's letter dated 7-5-1997. The applicant has resented to the said remarks, because the same were unwarranted and had a serious effect on the applicant's credibility when he was representing India in various World Economic Forums. According to the learned counsel, the applicant's grievance was that he was without any remedy against those remarks, because he could not go in reference against them. 13. We have considered the rival submissions and perused the facts on record. Section 254(2) and section 154 of the Income-tax Act, 1961 enable the concerned authorities to rectify any "mistake apparent from the record". The said expression has a wider content than the expression "error apparent on the face of the record" occurring in Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 root 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 then it is its constitutional and legal obligation to set it right by recalling its order." 17. Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove error and not for disturbing finality. 18. The purpose of the Tribunal is to render justice and not to negate it. We are approaching this problem keeping the above wholesome principle in view. It is true that three issues were before the Tribunal. The first issue i.e., reopening of assessment was the paramount/nodal issue and the other two issues were subsidiary/alternative issues. The first issue was admittedly decided by the Tribunal in favour of the assessee by observing in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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