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TMI Blog2021 (10) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.8.2019. By way of present application, Revenue seeks recall of the impugned order qua ITA No.1838/Ahd/2013 in the case of present assessee. 2. Brief facts of the case are that Revenue has filed an appeal against order of the ld.CIT(A)-XIV, Ahmedabad dated 29.4.2013 for the Asstt.Year 2005-06. Grievance of the Revenue was that the ld.CIT(A) has erred in deleting the additions of Rs. 15,02,885/- and Rs. 57,86,702/- which were added by the AO with the aid of section 68 by rejecting short term and long term capital gains claimed by the assessee as bogus. This appeal of the Revenue was dismissed by the Tribunal on 14.8.2019 by holding that tax effect by virtue of relief given by the ld.CIT(A) is below tax effect, and therefore, circular no.17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a the above appeal of the Revenue is liable to be recalled and appeal the Revenue may be listed for hearing on merit. 4. With the help of ld.representatives, we have gone through the impugned orders and the circulars cited by the Revenue. The power of rectification under section 254 of the Income Tax Act can be exercised only when the mistake, which is sought to be rectified, is an obvious patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. There are series of decisions at the end of the Hon'ble Supreme Court as well as Hon'ble High Court expounding scope of exercising powers under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted by the Tribunal or even if a mistake has occurred at the instance of party to the appeal; (e) A mistake apparent from record should be self-evident, should not be a debatable issue, but this test might break down because judicial opinions differ and what is a mistake apparent from the record cannot be defined precisely and must be left to be determined judicially on the facts of each case; (f) Non-consideration of a judgment of the jurisdictional High Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified; (g) After the mistake is corrected, consequential order must follow and the Tribunal has power to pass all nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 14.08.2019, neither the Circular No. 23 of 2019 dated 06.09.2019 nor the Office Memorandum No. 279 dated 16.09.2019 was in existence. Apart from the fact that the said circular and the Office Memorandum being not in existence and therefore not taken into consideration by the Tribunal while disposing all the Appeals could not be said to be a mistake apparent from the record as contemplated under sub-section (2) of Section 254 of the said Act, the Court also does not find any substance in the submission of Mr. Bhatt that the Tribunal should have recalled the order dated 14.08.2019 in view of the said Circular dated 06.09.2019 and the Office Memorandum dated 16.09.2019, which had retrospective effect. The Court at this juncture doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular dated 06.09.2019, it clearly transpires that the appeals may be filed on merits as an exception to the other Circulars issued earlier, where the Board by way of special order direct filing of Appeals on merits in the cases involved in organized tax evasion activity. Therefore, by virtue of the said Circular dated 06.09.2019, the appeals could be filed on merits, irrespective of the monetary limits fixed in earlier cases, if the Board passes special order for filing appeals in cases involving tax evasion activity. The said Circular speaks about the Appeals that may be filed with the special order of the Board in future, and hence could not be construed to have retrospective effect. The Tribunal interpreting the said Circular/ Office Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 6. A reading of the above judgment would indicate that subsequent decision of Hon'ble jurisdictional High Court on point of law could brand the Tribunal's order suffering from apparent error. In the present case, the subsequent judgment of Hon'ble jurisdictional High Court in the case of Anand Natwarlal Sharda (supra) laid down that on the day when the Tribunal has decided the appeal, circular no.23, guidance note etc. were not in the picture. In that case, even the appeals were decided on 14.8.2019 and the impugned circular came on 6.9.2019. In other words, appeals were decided by the Tribunal including that of the present assessee on 14.8.2019 i.e. prior to the circular issued by the Board on 6.9.2019, and 16.9.2019. Therefore, the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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