TaxTMI 
TaxTMI 
2006 (8) TMI 233
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.... course of hearing of the application under s. 254(2), a question was raised as to whether the Tribunal can exercise its powers under s. 254(2) when appeal against the said order has been admitted by the Hon'ble jurisdictional High Court under s. 260A and is pending disposal. Apart from making submissions before the Bench, the learned counsel for the applicant-assessee has filed written submissions to support the contention that the Bench of the Tribunal does not lose its power under s. 254(2) to rectify any mistake apparent from record merely because the High Court has admitted an appeal in regard to substantial question(s) of law. The learned Departmental Representative was given a copy of the written submissions moved by the assessee's representative and was asked to respond. However, till date no response has been received. We accordingly proceed to decide the issue on the basis of material on record and the contentions advanced in the course of hearing and also taking into account, the written submissions filed on behalf of the assessee-applicant. 3. On consideration of rival contentions and material on record, we are satisfied that there is no conflict in the jurisdiction ....
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....vs. State of Karnataka (1993) Suppl. (4) SCC 595, have observed as under: "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in administrative law as in public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the roof from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In administrative law the scope is still w....
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....Co. (P) Ltd., the CIT(A) was justified in treating the sale of shares on capital account being in consonance with the decision of the Tribunal in assessee's own case and there being no change in facts. The Hon'ble Supreme Court in the case of Dalhousie Investment Trust Co. Ltd., have laid down certain principles for determining the nature of the transaction in shares in the case of an investment company. The decision on the basis of such principles is dependent on the findings of fact recorded by the Tribunal. The Tribunal having recorded a finding of fact in the case of Vesta Investment & Trading Co. (P) Ltd. on the basis of evidence on record, it was not permissible to AO to come to a different conclusion without there being any change in facts or in law. The decision of the CIT(A) in the case of Vesta Investment & Trading Co. (P) Ltd. in ITA Nos. 791/2002 and 172/2003 is also accordingly upheld. These appeals of the Revenue are also dismissed." The Bench has also recorded at p. 26 para 24 "There is no decision of the Tribunal in the case of other assessees." "It has been brought to our notice that this observation which is crucial, is contrary to the facts on record insofa....
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....ioned five cases had not been placed on record or brought to the notice of the Tribunal, the claim of the assessee that there is a mistake in the order may not appear to fall within the ambit of s. 254(2). So, however, we agree with the contention advanced on behalf of the assessee that the Tribunal has recorded the following finding "That there is no decision of the Tribunal in other assessees" without making any inquiry from the assessee or the Department. The finding that there is no decision of the Tribunal in the case of other assessees is not based on any material on record. We are c0nvinced that there is a mistake in our order in this regard. We should have either made inquiry from the assessee or based our finding on some material on record. We have based the finding on presumption insofar as no reference had been made to any such decision in the course of arguments before us. Since the said finding is based on presumption and is contrary to the facts, we consider it our duty to rectify the mistake by modifying our order suitably to fit in with the facts of the case. We accordingly substitute paras 23 to 26 in place of paras 23 to 26 of our order dt. 7th April, 2005 as unde....
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....p; consolidated order ------------------------------------------------------------ 536/Chd/1996 Saptrishi Inv. & Tdg. 1992-93 29-5-1998 Co. (P) Ltd. 541/Chd/1996 Ranbaxy Managers 1992-93 Welfare Ltd. 542/Chd/1996 Abhay Investments 1991-92 (P) Ltd. 543/Chd/1996 Wesrex Investments 1991-92 (P) Ltd. 544/Chd/1996 Jupiter Investments 1991-92 ....
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....t to impress upon us the circumstances under which the shares of various companies had been treated as investments and not as stock-in-trade. Our attention was also invited to certain newspaper reports placed before us in the paper book. However, since the Revenue authorities had not the benefit of the explanation of the assessee nor of any evidence, if any, available, we in the interests of justice, consider it appropriate to restore the issue to the file of the AO for the purpose of fresh decision in accordance with law. The assessees shall be given reasonable opportunity to establish the initial intention of holding the shares as investments as against stock-in-trade. Needless to reiterate that the book entries for treating the shares as investments is not sufficient. Assessees shall have to give reasons and establish the initial intention for holding the shares as investments. The principles laid down by the Hon'ble Supreme Court in various decisions, including the decision in the case of Dalhousie Investment Trust Co. Ltd. shall be kept in mind by the AO while deciding the issue afresh in accordance with law. We accordingly set aside the orders of the CIT(A) and those of the A....