TMI Blog2003 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... gms. only were recovered from the respondent-assessee but by mistake the Tribunal has treated whole ornaments weighing 995.500 gms. recovered from different relatives as if recovered from the respondent-assessee. The Tribunal having found an apparent mistake has rightly invoked the jurisdiction of rectifying the mistake. - We do not find any merit in the writ petition so dismissed - - - - - Dated:- 16-9-2003 - Judge(s) : N. N. MATHUR., O. P. BISHNOI. JUDGMENT The judgment of the court was delivered by N.N. Mathur J. - By way of instant application under section 256(2) of the Income-tax Act, 1961, the Commissioner of Income-tax, Bikaner, seeks reference on the following question of law for the opinion of this court: "Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e during the course of search and the recording of the statement of the appellant. These affidavits have not been controverted by the Assessing Officer while completing the assessment. All these facts clearly indicate that all was not well with the statements of surrender recorded under section 132(4) of the Income-tax Act on September 29, 1988. After carefully perusing the above statements and all the above referred facts and circumstances of the case, I have no hesitation in concluding that the above referred alleged statements of surrender given by the appellant on September 29,1988, were not voluntary. Thus it would be quite unfair to make additions on the basis of such statements. Therefore, the additions, if any are required to be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative before the Tribunal could not be considered due to oversight, thus, by order dated November 25, 1996, posted the case for rehearing. The Tribunal by order dated April 21, 1998, rectified the error in the order dated February 3, 1997, and allowed the appeal of the respondent-assessee. The Department filed a reference application under section 256(1) of the Income-tax Act, 1961, which was rejected by the order dated August 31, 1998. Mr. Bissa, learned counsel appearing for the Department, has vehemently argued that the Tribunal has exceeded the jurisdiction in reviewing its own order and recalling the same under the garb of rectification. Learned counsel has strongly placed reliance on the decision of the apex court in Patel Narshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee, of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: Provided further that any application filed by the assessee in this sub-section on or after the 1st day October, 1998, shall be accompanied by a fee of fifty rupees. . . ." Section 254(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it finds that it has omitted to deal with an important ground urged by the party. It is not correct to say that the expression 'record' in the phrase 'mistake apparent from the record' in section 254(2) means only the judgment. The record means the record before the Tribunal." In CIT v. Ramesh Chand Modi [2001] 249 ITR 323, this court has held that once a mistake on the face of record is established what order should follow to correct that mistake shall always depend on the facts and circumstances required to rectify the mistake. The court observed: "If the mistake is one which requires determination of some undecided issue because it has not been decided though raised, the procedure that would follow the discovery of such mistakes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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