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TMI Blog2014 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order rejects the application for rectification of the order dated 30.1.2013 passed on merits in an appeal emanating from an Assessment Order dated 30.12.2008 passed under Section 143(3) read with Section 153A of the Act consequent to a search & seizure action. The Assessment year involved is Assessment Year 2004-05. 3. The grievance of the petitioner in its rectification application was that the order dated 30.1.2013 of the Tribunal holding that the claim for capital gains was not genuine confirmed the amount claimed as Income under the head 'income from other sources' on application of Section 68 of the Act. This was passed in ignorance of the fact that in regular assessment proceedings for Assessment Year 2004-05 the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in its impugned order dated 18.10.2013 accepted the petitioner's contention that the Counsel was not aware of the order dated 20.10.2010 of the Tribunal and therefore, could not bring it to the notice of the Tribunal during the hearing leading to the order dated 30.1.2013 of the Tribunal. Inspite of the above finding the Tribunal holds in the impugned order dated 18.10.2013 that the earlier order of the Tribunal dated 20.10.2010 has to be ignored on the ground that in view of the second proviso to Section 153(2A) of the Act, the order of the Tribunal dated 20.10.2010 could not be given effect in view of the period of limitation provided therein. Therefore, according to the Tribunal, there was only one order of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 143(3) and 153A of the Act for the Assessment Year 2004-05. In its order dated 20.10.2010 the Tribunal has rendered a finding that there was sale of shares and the petitioner is entitled to be charged under heading "capital gains". The only issue on which it remanded the proceedings to the Assessing Officer was to determine the nature of capital gains i.e. 'short term or long term capital gain'. The Tribunal in its order dated 30.1.2013 has come to the conclusion that the purchases were not genuine, one of the two shares involved viz. M/s.Shalimar Agro Product Ltd. was also the subject matter of the inquiry before the Tribunal in its order dated 20.10.2010. The Supreme Court in the case of Assistant Commissioner of Income Tax Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal." 9. The limited area of examination in the present proceedings is not as Mr.Chhotaray tried to emphasis the conduct of the petitioner or the fact that they had not filed appeal from order dated 30.1.2013 but have preferred only an application for rectification. The application for rectification was filed less than four months from the order dated 30.1.2013 which is being sought to be rectified. Thus, there was no delay and the rectification application was well within time to file an appeal under Section 260A of the Act to the High Court. The Tribunal being a final fact findi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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