TMI Blog2015 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion ought to have been raised in a regular appeal and the same has nothing to do with rectification of any mistake apparent from the record. The findings entered by the Assessing Authority was based clearly on facts which was susceptible to an appeal. We also did not find any error apparent from the record which enabled the assessee to invoke the said provision. In the said circumstances, we do not find any illegality or other legal infirmities in the finding entered by the Appellate Tribunal so as to invoke our jurisdiction conferred under Sec.260A - I.T.A. No. 242 of 2014 - - - Dated:- 8-9-2015 - ANTONY DOMINIC AND SHAJI P. CHALY, JJ. FOR THE APPELLANT : SRI.B.ASHOK SHENOY, SMT.C.G.PREETHA, SRI.K.V.GEORGE, SRI.P.N.RAJAGOPALAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Assessing Authority, after taking into account the facts and circumstances, found that the assessee Trust has no corroborative evidence to prove that the donation received by it was a capital donation and therefore the entire receipt of the Trust during the assessment year in question was treated as its income and the claim of the appellant for exemption under Sec.11 of the Act was rejected and thereupon the assessment was completed accordingly. 4. Aggrieved by the order, appellant had chosen to file an application for rectification under Sec.154 of the Act, seeking to rectify the order of assessment, contending that out of the gross income of ₹ 2,66,50,000/- an amount of ₹ 84,00,000/- was received during the previous y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. 6. Aggrieved by the said order, Revenue preferred appeal before the Appellate Tribunal. The Tribunal, without going into the merits of the case, entered into a finding that in case the assessee was aggrieved against the decision of the Assessing Officer, the remedy de facto did not lie before the Assessing Officer. Holding so, it was found that there was no mistake apparent from record in the order of the Assessing Officer so as to seek the rectification under Sec.154 of the Act and therefore the appeal filed by the Revenue was allowed. It is thus aggrieved by the said order, this appeal was preferred by the assessee. 7. Heard the learned counsel for the appellant and the learned Standing Counsel for the Revenue. 8. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reducing a refund or otherwise increasing the liability of the assessee (or the deductor), shall not be made under this section unless the authority concerned has given notice to the assessee (or the deductor) of its intention so to do and has allowed the assessee (or the deductor) a reasonable opportunity of being heard. (4) Where an amendment is made under this section, an order shall be passed in writing by the income-tax authority concerned. (5) Where any such amendment has the effect of reducing the assessment or otherwise reducing the liability of the assessee or the deductor, the Assessing Officer shall make any refund which may be due to such assessee or the deductor. (6) Where any such amendment has the effect of enhanci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was any error apparent from the record so as to invoke the power under Sec.154 of the Act. It is true that the Assessing Authority as well as the Appellate Authority have considered the subject matter on merits. According to us, in a matter like this, the course open to the authorities concerned were to consider first whether such an application was maintainable in law or not. That error committed by the authorities was considered by the Tribunal and the Tribunal found that there was no mistake apparent from the record so as to invoke Sec.154 of the Act. 10. The learned counsel has invited our attention to the judgment in 'Asian Techs Ltd. v. C.I.T., Cochin' [2000 KHC 846] and contended that the mistake apparent from record is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was apparent from record and not deciding the matter over and again on merits and that the rectified order does not supersede the original order but continues with the incorporated changes. 12. Moreover, we have come across two judgments of the Hon'ble Apex Court in 'S. Nagaraj v. State of Karnataka' [(1993) Supp. 4 SCC 595] and 'Ammonia Supplies Corporation Pvt. Ltd. v. Modern Plastic Containers Pvt. Ltd.' [AIR 1998 SC 3153], by which it was held in the former judgment that rectification of an order stems from fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. In the latter judgment, it was held that rectification connotes something what ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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