TMI Blog2016 (2) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... iel Power Products Ltd. v CIT (2007 (11) TMI 8 - Supreme Court of India ). In that view of the matter the impugned order dated 19th December, 2014 passed by the ITAT is set aside and the application for rectification filed by the Assessee before the ITAT under Section 254 (2) of the Act is treated as disposed of. However, this would require the restoration of the appeal to the file of the ITAT to examine the grounds urged by the Assessee on the rule of consistency as far as treatment of the interest income earned by the Assessee. - W. P. (C) 3910/2015 - - - Dated:- 15-2-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr Salil Aggarwal with Mr Ravi Pratap Mall, Advocates For the Respondent : Mr Rahul Choudhary, Senior Standing Counsel with Mr Raghvendra Singh, Junior Standing Counsel and Mr Sharad Agarwal, Advocates ORDER Dr. S. Muralidhar, J. 1. This is a writ petition filed by the Petitioner challenging the order dated 19th December, 2014 passed by the Income Tax Appellate Tribunal (ITAT) in M.A. No. 06/Del/2013 in ITA No. 427/Del/2010 under Section 254(2) of the Income Tax Act, 1961 ( Act ) for the Assessment Year ( AY ) 2006-07. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the stand of the Assessee that the interest income earned by it should be treated as business income, there was no reason to make a departure only for AY 2006-07. 6. By the impugned order dated 19th December, 2014, the ITAT dismissed the application. In para 3.1 while rephrasing earlier order of the ITAT dated 12th October 2012, the ITAT observed that admittedly, the rental income, dividend income, income from long terms/short term capital gain cannot be the business income. Now, only other interest was the interest income of ₹ 48,312/- which too was held by the Assessee by investment of own funds. Therefore, the question before the ITAT was whether the earning of the interest was of ₹ 48,312/- by investing own funds can be said to carrying on the business and consequently, allowance of a business expenditure/business loss of ₹ 10,66,545/-. The ITAT then proceeded to record in the impugned order that admittedly in this year the Assessee did not carry on the business of Vyaj Badla. Moreover, interest income was only ₹ 48,312/-. The ITAT then came to the conclusion that in the above facts it could not be said that there was any apparent mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly, rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply proceedings on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal s mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case. 10. The above decision was followed by a Full Bench of this court in Laxman Das v. ACIT (2011) 330 ITR 243 (Del). While, paraphrasing the decision of the Supreme Court in Honda Siel Power Products Ltd. v CIT (2007) 295 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concept of precedent, it can safely be stated that the apex court was dealing with a case which travelled from this court wherein it had been held that the Tribunal had no power of recall of its own order in entirety; that the court was not going by the doctrine or concept of inherent power; that the rule of precedent which is an important part of legal certainty in rule of law is not obliterated by section 254(2) of the Act; that if prejudice has resulted to the party due to the mistake, error or omission which is attributable to the Tribunal and it is manifest from the record, the mistake can be rectified. Thus understood, it is clear as crystal that their Lordships have held that the fundamental principle is that no party appearing before the Tribunal should suffer on account of any mistake committed by the Tribunal and no prejudice is caused to either of the parties before the Tribunal which is attributable to the Tribunal s mistake, omission or commission and if the same error is a manifest error, then the Tribunal would be justified to recall. The line of decisions which have been rendered by this court have proceeded on the basis of review, the limited power of recall as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
