TMI Blog2001 (10) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... Sh. Bhagwan Dass, a partner, of the appellant-firm, The addition had been made and the penalty had been imposed on a sole ground that the appellant-firm is a dealer in Karyana items and entries recorded in the note book also pertained to Karyana items. 4. The said appeal of the appellant has been dismissed by making the following observations in para No. 3 of the order passed by the Hon'ble Bench. 3. The learned counsel of the appellant pleaded that they have submitted an explanation which was bona fide and it was onus on part of the Department to prove that the entry is the income of the appellant......." 5. It is here above the mistake has crept in. The argument of the appellant, during all hearing had been as under: (i) That the note book containing entries was found at the residential premises of Sh. Bhagwan Dass. (ii) That Sh. Bhagwan Dass, besides being partner in the appellant-firm is also a partner in M/s Goel Sugar Co. Goniana Mandi. His wife Smt. Laxmi Devi is also a partner in M/s Jot Ram Bhagwan Dass, Goniana. (iii) That all the three firms are dealers in Karyana items. (iv) The note book cannot be connected with the appellant. That all the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in the assessee-firm was also a partner in M/s Goel Sugar Co., Goniana Mandi. It was also brought to the notice of the Tribunal that Smt. Laxmi Devi, wife of Sh. Bhagwan Dass, was also a partner in M/s Jot Ram Bhagwan Dass, Goniana. According to the learned counsel for the assessee, all the above three firms were dealing in Karyana items. 3.1. The next contention of the assessee, before the Tribunal was that it was not established on record that the note book could not be linked with the assessee. Sh. Rakesh Goel, the learned counsel for the assessee, further submitted before us that the above arguments were duly noted down by the Hon'ble J.M. Sh. Vimal Gandhi in the proceedings register or on some other paper. According to him, the non-consideration of the above arguments can be considered as a mistake of law and, therefore, the order of the Tribunal i.e., in ITA No. 72/Asr/1991 may be recalled/rectified for reconsideration. 4. On the other hand, Shri Tarsem Lal, the learned Departmental Representative submitted that the powers vested in the Tribunal under s. 254(2) of the IT Act, 1961, can be exercised for rectifying the mistake apparent from record and not for reviewing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997, in ITA No. 72 73 (Asr)/1991. These appeals were heard and decided by the Division Bench comprising S/Sh. Vimal Gandhi, Hon'ble J.M. and G.L. Garoo, the Hon'ble A.M. We have also gone through the original records. It is apparent from the record that these two appeals were heard on 18th Feb., 1997. It is apparent that these two appeals were allotted to Shri G.L. Garoo, the Hon'ble A.M. for dictating/writing the order/judgment on behalf of the Bench. From the records, it would be clear that there is no such indication that the results of the appeals were announced in the open Court. At the same time, there is also no evidence in support of this contention of the assessee that the Hon'ble Members had made their intentions clear to this effect that the appeals of the assessee were being allowed. It is also apparent that the draft order was prepared by the Hon'ble A.M., Sh. G.L. Garoo, and the same was placed before the Hon'ble J.M. on 23rd Dec., 1997. The said order was approved and signed by the Hon'ble J.M., Sh. Vimal Gandhi. In other words, the order became final on 23rd Dec., 1997, when the same was approved and signed by the J.M. In the case of ITAT vs. V.K. Aggarwal Anr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction is "with a view to rectify and mistake apparent on the record" and the object is achieved by 'amending any order passed by it'. The power so conferred does not contemplate a rehearing which would have the effect of rewriting an order affecting the merits of the case. Else there would be no distinction between a power to review and a power to rectify a mistake. What is not permitted to be done by the statute having deliberately omitted to confer review jurisdiction on the Tribunal cannot be indirectly achieved by recourse to s. 254(2) of the Act." 5.2. At this stage, it would also be relevant to state here that the Hon'ble Supreme Court in the case of Hari Singh Mann vs. Harbhajan Singh Bajwa Ors. AIR 2001 SC 43 has held that there is no provision in the Cr.PC authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Therefore, the High Court was not justified in reviewing its order under s. 482 of Cr.PC. It is true in the IT Act, 1961, also no power has been given to the Tribunal to review its own order and, therefore, applying ratio/principle laid down by the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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