TaxTMI 
TaxTMI 
2010 (10) TMI 198
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....the mandatory requirements of statue, as there cannot be estoppels against the law. (d) The Tribunal erred in holding that the property belongs to the firm and hence the capital gains on transfer of the property is taxable in the hands of the firm. (e) The CIT(A) ought to have appreciated that at no point of time the property was owned by the firm. (f) The Tribunal ought to have appreciated that the sale was executed by the partners of the firm in the individual capacity and not as partners of the firm. (g) The Tribunal ought to have appreciated that the individuals have obtained 230A Certificate from the Income-tax Department. (h) The Tribunal ought to have appreciated that the buyer has given the sale consideration by issuing cheques to all the individuals. (i) Without prejudice to the above, the Tribunal ought to have appreciated that assuming firm is the owner of the property, the execution of sale by the partners in their individual capacity would be void ab initio. Hence, capital gains cannot be assessed in the hands of them. (j) The Tribunal ought to have appreciated that the Assessing Officer has himself observed at pages 4....
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...., however, does not cover cases where a revision or review of the order is intended. 'Mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting, it is an error; a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) is permissible where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. Accordingly, the amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order which is not permissible under the provisions of section 254(2). Further, where an error is far from self-evident, it ceases to be an apparent error. It is no doubt true that a mistake capable of being rectified under section 254(2) is not confined to clerical or arithmetical mistakes. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observe....
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....nor it is part of the order, therefore, in our considered view, it could not be the subject-matter of rectification. That apart the assessee has not pointed out nor this Bench has noticed any mistake in the elaborate and detailed order passed while considering each and every aspect of matter in appeal and in case, request of the assessee is accepted, it would amount to review of the order of the Tribunal which is not permissible under the law. Under rectification proceedings, the Tribunal is not empowered to review the order passed earlier and support can be taken from the decision of the Hon'ble Calcutta High Court in the case of CIT v. Gokul Chand Agarwal (202 ITR 14), which has dealt with the similar point and opined as under: "Section 254(2) of the Income Tax Act, 1961, empowers the Tribunal to amend its order passed under section 254(1) to rectify any mistake apparent from the record either suo moto or on an application. The jurisdiction of the Tribunal to amend its order thus depends on whether or not there is a mistake apparent from the record. If, in its order, there is no mistake which is patent and obvious on the basis of the record, the exercise of the jurisdiction by....
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....C. 254 Further it was held as under: "It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. Similarly the Bombay High Court in the case of CIT v. Ramesh Electric and Trading Co. (203 ITR 497) .................