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TMI Blog2006 (2) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1046/Ind/96. This appeal was admitted for final hearing on the following substantial questions of law : "1. Whether the Income-tax Appellate Tribunal was justified in entertaining the application made under section 254 of the Income-tax Act and further erred in granting the relief to the assessee by holding that there was an error apparent on face of the record as required to be made out in rectification of an order dated September 30, 2002, passed in I. T. A. No. 1046 of 1996 ? 2. Whether the Income-tax Appellate Tribunal was justified in holding that the assessee is entitled to claim deduction under sections 80HH and 80-I in respect of the miscellaneous income earned from other sources (and not derived from industrial undertaking) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt their black money (ill-gotten wealth) in white money by claiming deduction under Chapter VI-A which is otherwise not available to them under the twin sections. The issue on the facts was dealt with by the Tribunal in detail while negativing the claim of the assessee in the following words (para 7) : "In view of this observation, it is not always correct to apply the ratio of different decisions to the similar facts of the case without going deep into details of the facts in hand. Even the hon'ble Supreme Court in CIT v. Brij Lal Lohia and Mahabir Prasad Khemka [1972] 84 ITR 273 has held that the fact that in the earlier proceedings, the Tribunal took a different view was not conclusive circumstances and the decision of the Tribunal reac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrial activity. Decision regarding telescoping relied on by the learned authorised representative cannot be applied for allowing special deduction under Chapter VI-A. Telescoping what has been decided by various courts is that a particular item on which addition has been made can be treated to be a source for another item of expenditure. We have gone through our earlier orders and in order for the assessment year 1991-92 in I. T. A. No. 14/Ind/96 at paragraph 8 there is a finding that there is no iota of evidence wherefrom it can be interfered that the assessee has ever entered into trading activities with regard to raw cotton which was purchased from the agriculturists, whereas in the current year there are some trading activities, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel with Shri D. S. Kale, learned counsel for the assessee/respondent. 5. Learned counsel for the appellant (Revenue) while assailing the legality of the impugned order in the first instance contended that the Tribunal exceeded their jurisdiction in entertaining the application made under section 254(2) of the Act by the assessee seeking rectification of the order earlier passed in the main appeal. According to learned counsel, the Tribunal in the garb of seeking rectification as provided under section 254(2) ibid, recalled the entire order passed in appeal and dismissed the appeal. This in the submission of learned counsel was not permissible in law and ought not to have been done. In reply, learned counsel for the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the assessee, it becomes very clear that the Tribunal did go into the entire facts and legal position applicable to it. It is only then a detail and categorical finding was recorded on facts to the effect that the income surrendered by the assessee was not an income which could be regarded as income having been derived from the industrial undertaking. The Tribunal while thus accepting the contention of the Revenue both on facts and in law on the other hand and in our view rightly went to the extent of observing that the assessee was making efforts to convert their black money in white by taking recourse to the provisions of section 80HH/80-I of the Act. Having thus examined the issue in such minute detail running in "9 pages" resultin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". We are satisfied that the appellate order did not suffer from any mistake much less mistake/error apparent on its face so as to entitle the Tribunal to recall the same in its entirety. Indeed the Tribunal while allowing the application made under section 254(2) read with rule 34A did not advert to any of the requirement of these two provisions as to how and in what manner these two provisions are attracted. Mere mention that there is an error, the Tribunal did not assume jurisdiction to recall their well reasoned order passed in appeal. 10. A well reasoned decision which has gone in favour of the Revenue in regularly constituted appeal cannot be upturned by taking recourse to the provisions of section 254(2) ibid like an appellate court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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