TMI Blog2019 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... where the Court has passed the elaborate order while disposing of the contentions of the assessee on the basis of written submission and/or oral submissions, the order can be rectified. In our view the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the co-ordinate Bench or whether some incidental fact which appears on record has not been noticed by the Tribunal in its judgment. If on a fair reading of the judgment of the Co-ordinate Bench, it appears that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, then the decision of the Co-ordinate Bench, is not liable to be interfered with, unless, of course, the conclusions arrived at by the Bench are perverse. As it is also well settled that only glaring and mistake apparent on the face of the record alone can be rectified but not otherwise permissible under Sec.254(2) of the Act. A mistake must exist and the same must be apparent from the record, which is not apparent in this case, hence we do not have any hesitation to dismiss the application of the Assessee. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal evidence and to decide the appeal afresh after giving opportunity to the assessee. 2. On the contrary , the Ld. DR refuted the claim of the assessee and submitted that the Hon ble Bench has not only decided the appeal of the assessee on the ground of additional evidence u/s 46A of the Act but also decided the same on merit hence no rectification can be entertained . 3. Having heard the parties at length and perused the material available on record. The Co-ordinate Bench, vide order dated 25-10-2017 while adjudicating the appeal of the assessee in para No.7 thoroughly discussed the applicability of Sec. 46A of the I.T. Rules, 1962 to the instant case and passed elaborate order while affirming the action of the Ld. CIT(A) for rejection of application u/s 46 of the Rules, 1962. For the sake of brevity and ready reference the relevant part of the order is reproduced herein below. 7. We have gone through with the facts and circumstances of the case, it is not in controversy that despite offering 17 opportunities, the assessee did not co-operate with the assessment proceeding and on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that during the assessment proceedings, it was contended by the appellant that the cash deposits in the bank were out of the securities advances received from 81 persons and each person deposited ₹ 19,500/- and it was never been contended by the assessee that the cash deposit in the Axis Bank was out of advances received from the customers for purchase of immovable property. The Ld. CIT(A) while considering the application u/s 46A of the I.T. Rule 1962 came to the conclusion that from the perusal of the assessment order, it is found that AO at no stage refused to admit any additional evidence which ought to have been admitted even the appellant has not been able to make out any case that which was prevented by sufficient cause from producing the evidence which was called for produced by the A.O. and from the assessment order it clearly reflects that the case of the assessee was fixed for hearing on 17 occasions during the more one year but at no stage the assessee expressed any intention to adduce any such evidence as is being adduced at the appellate stage, therefore, it cannot be said that the assessee was prevented by a sufficient cause from producing the evidence whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be attracted. Hence, this petition. 3. . 4. We do not find any forcible submission advanced on behalf of the petitioners that once the order had been dictated in open court, the order to review or recall is not permissible in view of the provisions of Section 362 Cr.P.C. for the simple reason that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed. In the instant case, admittedly, the order was dictated in the court, but had not been signed. 5. In Mohan Singh v. King-Emperor 1943 ILR (Pat) 28, a similar issue was examined wherein the facts had been that the judgment was delivered by the High Court holding that the trial was without jurisdiction and a direction was issued to release the appellant therein. However, before the judgment could be typed and signed the court discovered that the copy of the notification which had been relied upon was an accurate copy and that the Special Judge had jurisdiction in respect of the offence under which the appellant therein had been convicted. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his part . If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery. But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge's responsibility is heavy and when a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture; also, a question of public policy is involved. As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought on record by the assessee directly or in directly that the assessee has doubt in the integrity of his counsel and /or submissions of his counsel. Once the vakaltnama has been filed on behalf of the party, which in this case has not been disputed, every authority conferred to its counsel to plead his case by taking any ground/objection and or any defence on behalf of the assessee and if wrong submissions has been made by counsel on behalf of the assessee by getting signature or with or without his assent, then also because of vakaltnama, the assessee is liable for consequences directly or indirectly. If we seriously consider the issue under hand as it reflects that the assessee has taken stand that he had received security advance of 81 persons and also filed a list of which is signed by 81 persons in the assessment proceedings, however, during the appellate proceeding the same was denied on the pretext that the assessee being ignorant having no proper knowledge about the explanation given by the counsel while the truth of the matter was different, it prima-facie shows that the assessee had produced forge and fabricated documents in the assessment proceedings for which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through with the assessment order where it is not specified that how much expenses have been debited by the assessee qua Telephone, Vehicle, Stationary, Electricity etc. in P L Account, however, as the assessee had failed to furnish any expenditure vouchers or other documentary evidence and the books of account,, therefore, the Assessing Officer disallowed a sum of ₹ 50,000/- in lumpsum out of expenses from the P L Account of the assessment year under consideration. It reflects that the assessee has claimed various expenses which is of ₹ 20,0524/- which includes interest of ₹ 82,722/- and depreciation of ₹ 38,753/- and remaining amount comes to ₹ 74,549/-only, however, the Assessing Officer disallowed ₹ 50,000/- out of the said expenses which in our considered opinion excessively high, therefore, we restrict the same to the tune of ₹ 7,500/- only, being 10% of expenses of ₹ 75,000/-. Hence, Ground No.3 of the appeal is partly allowed . 4.2 Let us to reproduce the relevant provision of law as applicable for rectification of the order on the ground of any mistake apparent from the record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot confined to clerical or arithmetical mistakes. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. 5.3 The Apex Court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360 , held that an error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. 5.4 The Hon ble Supreme Court in the case of CIT vs. Karam Chand Thapar Br. P. Ltd.,176 ITR 535 has held as under: It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be a subject matter of rectification. 5.7 The Hon'ble Delhi High Court on the scope of rectification u/s 254(2), in the case of Ras Bihari Bansal Vs. CIT 293 ITR 365 has held as under: Section 254 of the Income Tax Act, 1961, enables the concerned authority to rectify any mistake apparent from the record . It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section. 5.8 In conclusion, crux of the provisions and judgments is that the scope for rectification of the order is very limited and depends upon the mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, the order can be rectified. In our view the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the co-ordinate Bench or whether some incidental fact which appears on record has not been noticed by the Tribunal in its judgment. If on a fair reading of the judgment of the Co-ordinate Bench, it appears that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, then the decision of the Co-ordinate Bench, is not liable to be interfered with, unless, of course, the conclusions arrived at by the Bench are perverse. As it is also well settled that only glaring and mistake apparent on the face of the record alone can be rectified but not otherwise permissible under Sec.254(2) of the Act. A mistake must exist and the same must be apparent from the record, which is not apparent in this case, hence we do not have any hesitation to dismiss the application of the Assessee. 6. In the result, the Miscellaneous Application filed by the Assessee stand dismissed. Order pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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