TaxTMI 
TaxTMI 
2013 (1) TMI 262
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....f Rajlaxmi Trading Co. v. CIT [2001] 250 ITR 581 is not applicable to the facts of the assessee's case. The case before the Hon'ble jurisdictional High Court is u/s. 45(4) of the Act and with reference to the capital asset and has no application to stock-in-trade which is not a capital asset. The Tribunal while adjudicating this issue decided against the assessee by holding as follows: "8.1 The Hon'ble Supreme Court in the case of ALA Firm v. CIT have held that on dissolution of the firm, valuation of stock in trade has to be made at market price for mutual adjustment of partners shares and surplus is profit liable to tax. The relevant decisions of the Hon'ble Supreme Court in this case is held as under: "There can be no manner of dou....
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....h was before the Hon'ble jurisdictional HC, the assessee which was a registered firm, was dissolved on 31.8.1990. Upon such dissolution, one of the partners took over its assets at the book value of Rs. 2,17,555. Applying the provisions of s. 45(4) of the Act, the assessing officer held that the fair market value of the transferred property has to be taken into account as determined by the District Registrar at Rs. 5,36,100. He thus added the different amount of Rs. 3,18,545, in the hands of the assessee firm as short term capital gains. The said assessment was upheld both by the CIT(A) and Hon'ble ITAT. On further appeal by the assessee the Hon'ble Jurisdictional High Court held that the Tribunal was right in taking the market value as the....
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....rt distinguished the ratio laid down in the case of ALA Firm. The The AR drew the attention of the Hon'ble Tribunal to page. no. 8 of the order dated 29-01-2010 wherein the assessee's case was dismissed relying on the judgment of the Hon'ble Andhra Pradesh High Court in the Rajlaxmi Trading Co.'s case (supra). The AR submitted that in the case of Rajlaxmi Trading Co.'s case (supra) the issue before the court was valuation of capital assets on dissolution of firm and not stock in trade. 4. The AR submitted that the issue before the Hon'ble Supreme Court both in the case of ALA Firm and Sakthi Trading Co., (supra) was with respect to valuation of stock in trade at the time of dissolution of the firm and the judgment of Sakti Trading Co.'s ....
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....iven the finding, incidentally, not in favour of the assessee. As the issue is decided against the assessee, now the assessee finds that there is mistake apparent on record which is actually not so. 7. Further it is well settled that statutory authority cannot exercise power of review unless such power is expressly conferred. There is no express power of review conferred on this Tribunal. Even otherwise, the scope of review does not extent to re-hearing of the case on merit. It is held in the case of CIT v. Pearl Woolen Mills [2011] 330 ITR 164: "Held, that the Tribunal could not readjudicate the matter under section 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly co....
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....The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms of Rule 24 of the ITAT Rules, 1963, and that too only in case where the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex-parte. Judged in the above background the order passed by the Tribunal is indefensible. 9. The words used in s. 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh ....
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....lted to the party, which prejudice is attributable to the Tribunal's mistake/error or omission, and which an error is a manifest error, then the Tribunal would be justified in rectifying its mistake. The "rule of precedent" is an important aspect of legal certainty in the rule of law and that principle is not obliterated by s. 254(2) of the Act and non-consideration of precedent by the Tribunal causes a prejudice to the assessee. (c) Thirdly, power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. (d) Fourthly, under s. 254(2) an oversight of a fact cannot constitute an apparent mistake rectifiable under the section. (e) Fifthly, failure on the part of the Trib....