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2016 (10) TMI 546 - ITAT MUMBAI

2016 (10) TMI 546 - ITAT MUMBAI - TMI - Rectification of mistake - addition u/s 68 - Held that:- Tribunal has got limited power to rectify mistake u/s. 254(2) of the Act. In the case before us, the AO has not pointed out any arithmetical mistake in the order of the Tribunal nor has he proved that legal position taken by the Tribunal has altered because of subsequent judgment of the Hon’ble jurisdictional high court or the Hon’ble Apex court. The Tribunal has decided the issue after considering a .....

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No. 7628/Mum/2012 - Dated:- 14-10-2016 - Sh. Rajendra, Accountant Member and Amarjit Singh, Judicial Member Appellant by : Shri Rajan Vora Respondent by : Shri K. L. Kanak ORDER Per Rajendra, A. M. Vide its application, dated 16. 06. 2016, the Assessing Officer(AO) has stated that there were some mistakes in the order of the Tribunal dated 21. 10. 2015, that same were to be rectified as per provisions of section 254(2) of the Act, that at Pg. No. 8 of the order the Tribunal had held that the tr .....

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uch facts were required to be considered and proper explanation of the entire deal had to be examined, that the transaction was a colourable device, that the transaction was devoid of any business sense, that the Tribunal had not called upon the parties to provide further evidence, that the cause of justice and the observation of the Tribunal in its order itself would have been best served if the Tribunal had set aside the matter to the file of AO for fresh adjudication or review the case for ve .....

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epresentative (AR) stated that the assessee had submitted all the relevant documents before AO and had met all his allegations, that the Tribunal had advanced all the arguments advanced by the Department, that in the name of rectification application AO wanted review the case. 3. We have heard the rival submissions and perused the material before us. We find that after considering the facts of the case the Tribunal had decided the issue on merits. The DR had emphasized that Tribunal had held tha .....

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xt that the Tribunal had made observation about verification and investigation. The Tribunal had considered the cases relevant to the issue i. e. Oberoi Hotels (P) Ltd. (334ITR293);Salitho Ores Ltd. ( 344 161); K. P. Varghese(131ITR597) and Premier Automobiles(264ITR193). We would also like to reproduce the last paragraph of the order of the Tribunal, dealing with the issue and same reads as under :- The entire chain of events-including delisting of shares, permission of SEBI and RBI, agreement .....

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Tribuan right course of action was be to challenge the order before the proper judicial forum i. e. Hon'ble High Court. Miscellaneous application cannot be used for challenging an order passed by the Tribunal just to review its earlier order. The Tribunal had found that the period of claiming the loss had lapsed and the assessee had informed the AO that it would not set off the loss against any future income to be earned under the head capital gains . Thus the Tribunal had taken an informed .....

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ts and contentions which were not raised by the parties before it or to deal with pleadings, evidence or material to which its pointed attention was not drawn in the course of the proceedings, and which lie buried in the forest of papers filed by the parties. The fact that an appeal under the Incometax Act is not a lis between the parties and is only an adjustment of the tax liability does not also imply that the Tribunal shall exhibit such an imagination that it would be required to deal with i .....

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asis added). 3. 1. We would like to add that he scope of section 254(2) of the Act is very limited and specific. If a mistake is so glaring that on the face of it same has to be amended, then only the provisions of section 254(2)can be invoked. It is said that the section is limited to mistake apparent from record like arithmetical errors, typographical mistakes, non-adjudication of ground of appeal or non-consideration of a judgment of Hon ble Supreme Court or jurisdic - tional High Court havin .....

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e issue was examined on the merits including the judgments relied upon by the assessee. After examining the matter in detail, it allowed the appeal filed by the Revenue. (348ITR118). Following is the decision of the Hon ble jurisdictional High Court has in the case of Ramesh Electricals (203ITR497): Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, "with a view to rectifying any mistake apparent from the record", amend any order passed by it under subsection .....

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