TaxTMI 
TaxTMI 
2010 (1) TMI 979
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....vities. The relevant findings of the Tribunal on which the assessee is aggrieved are given at paragraph 8 of its order which is reproduced hereunder: "This leaves us with the issue whether carry forward business losses could be allowed set off against such lease rentals assessed under the head `Income from house property'. For this claim, the assessee has strongly banked upon decision of the jurisdictional High Court in CIT v. Ramnath Goenka [2003] 259 ITR 26 (Mad) where their Lordships held that carry forward losses from the assessee's business could be set off against dividend income derived from the shares which were held as stock-in-trade. The hon'ble jurisdictional High Court followed the decision of the apex court in the case of....
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....orward business losses ought to have been considered for set off against lease rentals cannot be accepted." A clear finding has been given by this Tribunal that the assessee had ceased to carry on any business during the relevant previous year, based on its admission that there was no manufacturing activity and it had sold its machinery. The assessee also could not produce any evidence to prove that there was only a temporary lull in business and it had resumed possession of the property. It was also submitted by the assessee before the Commissioner (Appeals) that leased assets consisted of land and building, the plant and machinery having been sold. We do not find any mistake in the order of the Tribunal, much less any mistake apparent ....
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....ourt, reiterating the well settled position in law, it was held that (page 467 of 228 ITR) : "Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with as mistake apparent on the record". More recently, the hon'ble Supreme Court in the case of Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 came to hold as under (headnote) : "A patent, manifest and self-evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record....
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.... it. If however the order passed by the Tribunal is not in conformity with the judgment of the hon'ble Supreme Court or that of the jurisdictional High Court rendered prior to or subsequent to the impugned order, the same constitutes a mistake from record capable of rectification under section 254(2). In the same breath it will be an error apparent from record if the order is not in conformity with the retrospective amendment carried out to the statutory provision covering the period and point in dispute, of course, subject to the fulfilment of other conditions prescribed in the Act such as limitation period, etc. It is, therefore, clear that the power given to the Tribunal under section 254(2) is confined to rectifying any mistake which....
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.... whether the commission payment of Rs. 54,000 was deductible under section 37 of the Income-tax Act. After examining the circumstances, the Tribunal came to the conclusion that it was not so deductible. The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. No such mistake was apparent from the record. In fact, we doubt if this sort of an exercise could have been done by the Tribunal even if it had the power of review. The Tribunal has, patently, far exceeded its jurisdiction under section 254(2) o....
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....application was held to be not maintainable. Further it was clarified that the case before the hon'ble Rajasthan High Court was on the failure to decide the grounds raised by the assessee in appeal memo. It is, therefore, axiomatic that the judgment of the hon'ble Bombay High Court in the case of Ramesh Electric and Trading Co. [1993] 203 ITR 497 has not been diluted in any manner by any other courts including the Rajasthan High Court in CIT v. Ramesh Chand Modi [2001] 249 ITR 323, it is well-settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Failure of the Tribunal to consider the judgment of a non-jurisdictional High Court cited by party before it, also would not be a mistake apparent....