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TMI Blog2019 (12) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ss income as the land was sold by way of plotting and that too in a very short time. It was therefore established that the assessee was in the business of Real Estate and the plots held by him were his stock in trade. Since the land was purchased by the assessee in cash, disallowance amounting to Rs. 1,56,87,000/- was made and added back to his income u/s 40A(3) of the Act. Similar addition amounting Rs. 1,28,60,890/- was made in the case of the assessee for the A.Y. 2010-11 which was confirmed by the CIT(A) in appeal no. 59 of 2013-14, however, the same was deleted the Hon'ble Tribunal in ITA no. 475(ASR)/2014 dated 27.05.2016. The said order was challenged by the department by way of filing a Misc. Application as the judgment relied upon by the Hon'ble ITAT i.e., order of Hon'ble Punjab & Haryana High Court in ITA No. 413 dated 16.07.2015 had not been accepted by the Department and a review petition has been filed before the Hon'ble High Court of Punjab & Haryana. 2. Now coming to Assessment Year 2011-12 assessee preferred an appeal before the Id. CIT(A) Amritsar who vide order dated 26.07.2016 in appeal no. 34 of 2014 had allowed the appeal of assessee on the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not open to us at this stage to examine the effect of the amendment to Rule-6DD. We express no opinion in regard thereto except to state that the relevant clause appears to have been amended. It is always open to parties to adopt appropriate proceedings with regard thereto. Needless to say we express no opinion regarding any proceedings that may be adopted including for a review of the judgment." Against the above Judgment of High Court, Department has filed a review petition and the same is still pending, therefore, it is requested that your order, mentioned above, may kindly be reconsidered. Copy of appellate order in ITA No.533 of 2016 dated 31.07.2017 for the Assessment year 2011-12 is enclosed for reference. This application is filed on the directions of Worthy Chief Commissioner of Income Tax, Amritsar vide his office letter no. CCIT/ASR/ITO(Hq-I)/7-18/ 6066 dated 31.10.2017. Approval for the draft of the Misc. Application has been obtained from the Worthy Pr. CIT-II, Amritsar. 2. Having heard the parties and perused the material available on record. 2.1 The grievance of the Revenue Department is that the Hon'ble Tribunal vide its order dated 31.07.2017 passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take apparent from the record. "Orders of Appellate Tribunal 254.(1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (1A) [***] (2) The Appellate Tribunal may, at any time within six months from the end of the month in which the order was passed, with a view to rectifying 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 of October, 1998, shall be accompanied by a fee of fifty rupees." 4.1 From the provisions of Sec.254(2) it is clear that Tribunal may at any time within six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 4.5 In conclusion, crux of the provisions and judgments is that the scope for rectification of the order is very limited and depends upon the mistake apparent from record. The Tribunal can only rectify its mistakes apparent from the record and the provision of rectification does not permit the Tribunal to review its earlier order. There is wide difference between rectification and review. Rectification implies correction of error and removal of defect or imperfection and while exercising power rectification, the court can not exercise the power of review or revision. It is well settled principle of law that review is creature of statute and in absence of any statutory provision for review, exercise of power of review un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owners and the purchasers directly as reflects from the conveyance deeds. The Tribunal further observed that even otherwise in assessee's case qua Asst. Year:2010-11, was dealt with by the Co-ordinate Bench whereby the Bench has deleted the similar addition as disallowed under the said provision. Finally the Tribunal concluded that considering the overall facts, conclusion and effects of the order passed by the Co-ordinate Bench as well as independently applying the mind, we do not find any infirmity, impropriety and illegality in the order passed by the Ld. CIT(A), therefore, it does not require to be interfered with. 4.7 Though the revenue department claimed that Sakun Aggarwal (supra) based on the same facts, for rectification of order 27-05-2016 passed in Sakun Aggarwal (supra), is yet to be decided by Tribunal and therefore, prayed for recalling of order under challenge, till the decision on the same, however it is a fact that the Tribunal vide its order dated 23.11.2017 passed in Sakun Aggarwal (supra), has already dismissed the application for rectification of tribunal's order dated 27.05.2016 relevant to the Asst. Year:2010-11 passed in the assessee's own case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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