TaxTMI 
TaxTMI 
2011 (8) TMI 868
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....and case law adduced before him to the effect that the appellant is an owner as defined in clause (f) of section 2 of Hire Purchase Act, 1972 and not a 'money-lender' under the Money-Lending Act". 3. It was submitted that the above ground remained to be decided in the way it was referred and whatever decision has been taken in this regard has been taken on (he assumption of incorrect facts, and the same amounts to a mistake apparent on record which has crept in paragraph no. 17 (at page 11) of the Tribunal Order which is rectifiable under section 254(2) of the Income Tax Act. 1961, because this section also applies to Interest Tax Act. 4. On behalf of the Revenue ld. D.R. Shri A.R. Khan, unhesitantly submitted that in case the order of the Tribunal in question is recalled lo that extent, he did not have any objection. We have considered the rival submissions in the light of the available records. We have also carefully gone through the Tribunal Order to ascertain if the claim of the applicant is correct and if so, whether it is rectifiable or not. 5. There is no dispute and it is evidently established fact that the applicant had raised the above extracted common ground, in these....
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....he assessee has enclosed this decision as stated above and the same find no mention in the Tribunal Order. This. definitely amounts to a mistake apparent on record which has crept into the order. Reference can be made to the decision of Hon'ble Delhi Bench of ITAT rendered in the case of Prabhavashali Chit Fund v. CIT [1995] 52 TTJ (Del). 271/[1994] 49 ITD 566 (Delhi). As per Hon'ble jurisdictional High Court, in the case of CIT v. Keshav Fruit Mart [1993] 199 ITR 771 (All.) omission to consider a ground raised in the memorandum of appeal would be a mistake apparent from record. Another mistake pointed out by ld. A.R. that the Tribunal has conceived the fact that the vehicle has already been registered in the name of hirer as also found to be not correct. Thus, in the background of these facts a patent mistake of fact has crept in the Tribunal Order which is rectifiable under section 254(2) of the Act. The other orders on which reliance has been placed were also considered. In the result. Tribunal Order in question is recalled to adjudicate upon ground no. (5) in all these appeals. 8. In the result, all these M.As. are allowed accordingly. Sanjay Arora, Accountant Member - I ha....
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....r to successfully invoke the provision of s. 254(2). must exhibit, even if without reference to any ground, if any prejudice stands caused to it per the adjudication by the Tribunal, i.e. so long as it is in respect of the matter that is the subject matter of the issue before the Tribunal and stands brought to its notice. De hors such an exhibition, the assessee's petition is bereft of any basis; the word 'mistake', which an order under section 254(2) seeks to rectify, by modifying the impugned order to that extent, intrinsically carries or bears the notion of a prejudice, being etymologically an amalgam of the words "mis" and "take". In the context of the law, it has been a subject matter of elucidation by the higher Courts of law, without however, in any manner, deviating from this basic premise. In fact, as stated earlier, the assessee's ground no. 5 does not raise an issue which is in any manner different from that sought to be raised by the assessee per its other grounds, being broadly worded, and which stands duly delineated, considered and decided by the Tribunal with reference to the decision by the Apex Court in the case of Sundaram Finance Ltd. v. State of Kerala, AIR 196....
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....f Charanjeet Singh Chaddha (supra) nowhere stated by the assessee in its M.A. which runs in 3 pages nor stood argued by the ld. A.R. during the course of hearing. The same is in relation to a criminal complaint, the scope of which is vastly different and related to the maintainability of the complaint under IPC. In any ease, it stands considered by the ld. CIT (Appeals) whose findings stand upheld by the Tribunal, whose findings are essentially of fact, arrived at after considering the law in the matter as elucidated by the Apex Court in. the present case. 4. In my view, therefore, the assessee's MAs are liable to be dismissed, and 1 decide accordingly. THIRD MEMBER ORDER G.E. Veerabhadrappa, Vice President (As a Third Member - There being a difference between the Members who originally heard these miscellaneous applications arising in Interest Tax Appeal Nos. 15/Agr/2002 to 19/Agr/2002 for AY 1994-95 to 1999-2000, the Hon'ble President has nominated me as a Third Member to resolve the difference under Section 255(4) of the Income-tax Act, 1961. 2. These are applications filed by the assessee requesting the Tribunal to rectify certain mistakes that are stated to have been commi....
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....s under reference, any other reading of the Tribunal order amounts to a review, which the Tribunal is not entitled to do within the meaning of Section 254(2); of the Act. 6. I may point out that one other aspect that prompted the learned Judicial Member to take a view that on behalf of the Revenue, the learned Departmental Representative Shri A.R. Khan unhesitantly submitted that in case the order of the Tribunal in question was recalled to that extent, he did not have any objection. To this, the findings of the learned Accountant Member are that what all the learned Departmental Representative stated while representing the Revenue is that if the Tribunal finds that if there has been in fact, a non-adjudication of the relevant ground, the Revenue would have no objection for recalling of the order to that limited extent. According to learned AM, the pleading made by the learned DR cannot be construed as concession of the revenue to the Tribunal for recall of its order. 7. With these discussions, the learned Members of the Division Bench have agreed to refer the following point of difference for adjudication by the Third Member:- "Whether common ground No. 5 in all these appeals r....
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....th a clear line of demarcation between the two. 3. Because the impugned orders under appeal are full of conjectures & surmises in complete disregard of the fact that the appellant on one hand and the hirer on the other have distinct civil right in the peculiar nature of business carried on by the appellant:" 10. I may point out that the only dispute before the Tribunal was whether the assessee's activity, as undertaken, is one of hiring or one of financing the loans for interest within the meaning of Interest Tax Act, 1974. When viewed from only this dispute of the assessee, we may see that the assessee has taken the following grounds in this connection:- "1. Because the authorities below have grossly erred on facts and in law in equating 'Hire charges' with 'interest' ignoring the submissions of the appellant and statutory definition of 'hire charges' under the Hire Purchase Act, 1972. The addition of Rs. 15000/- so made under the Interest Tax Act, 1974 being unjustified and unwarranted is liable to be deleted. 2. Because the authorities below ought to have appreciated that 'interest' on loans and advances as envisaged to be liable to Interest Tax under the I....