TaxTMI 
TaxTMI 
2015 (7) TMI 765
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.... of sales in all the years referred above. 3. In the miscellaneous petitions, the revenue has pointed out that the assessing officer had received information from the Electricity department about Power theft alleged to have been committed by the assessee herein by tampering the Electricity Meter. The power theft reported by the Electricity department pertained to the period from February, 2001 to November, 2003. The quantum of power theft was estimated by the electricity department based upon the horse power of the machinery used by the assessee. Based upon the power consumption details, the AO estimated the production suppressed by the assessee and also estimated the suppressed Gross profit and added the same. 4. The revenue has further stated that the assessee had also suppressed the actual electricity payments made by it. For example, in the year relevant to the assessment year 2000-01, the assessee had paid electricity charges of Rs. 4,99,363/-, but it has accounted only Rs. 50,000/- in its books of account. It is stated that the assessee has accepted the fact of suppression of electricity charges in its books of account. The revenue has further pointed out that the addition ....
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....mitted that there is no merit in the contentions of the revenue that there are mistakes apparent from record in the common order passed by the Tribunal. He submitted that the Tribunal is empowered u/s 254(2) of the Act to correct non-debatable mistakes apparent from the record. The ld A.R submitted that the prayer made by the revenue in the impugned petitions are debatable in nature. Accordingly he submitted that the relief sought by the revenue would lead to review of the order passed by the Tribunal, which is not permissible under the provisions of sec. 254(2) of the Act. 9. The Ld A.R further submitted that the revenue has already preferred appeals before Hon'ble High Court of Bombay challenging the orders passed by the Tribunal. He submitted that present miscellaneous applications are invalid, since the appeals filed by the revenue against the orders of the Tribunal have since been admitted by the Hon'ble High Court. For this proposition, the Ld A.R placed reliance on the following case law:- (a) Tata Communications Ltd Vs. CIT (124 TTJ 721)(Mum-SB) (b) R.W Promotion Pvt Ltd (MA No.194/Mum/2013) (c) DCIT Vs. Padam Prakash (HUF) (121 TTJ 593)(Del-SB) Accordingly, the Ld A.R....
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....f section 254 enables the Tribunal to entertain the application of the above nature but what orders ought to be passed on such an application depends upon the facts and circumstances of each case. No general rule can be laid down in that behalf. The Tribunal can rectify any mistake apparent from the record and amend its order passed under section (1) of section 254. If the amendment has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, then, such an amendment shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. We are not confronted with such a situation. What we are called upon to decide is the correctness of the view taken by the Tribunal and that the judicial propriety does not allow the petitioner-assessee to seek a full remedy similar before two authorities and in particular when the issue is pending for admission before higher forum. 10. The least that can be said about the understanding of the legal provision by the Tribunal is that it is ex facie incorrect and erro....
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....ting to addition made on account of power theft is not available in assessment year 2000-01. The addition made in AY 2000-01 pertained to the Gross profit estimated on suppressed production on account of suppression of electricity charges. However, it is noticed that the Tribunal has proceeded to dispose of all the appeals by its common order by considering the fact that the assessee has been acquitted in power theft case. 14. In assessment year 2001-02 to 2004-05, it is submitted by the revenue that the addition pertained to the Gross profit estimated on suppressed production on account of suppression of electricity charges. However, it is noticed that the Tribunal has proceeded to dispose of this issue also under the erroneous impression that the same related to alleged power theft. Hence the Tribunal took note of the fact that the assessee has been acquitted from the power theft case and accordingly deleted the addition. 15. The Ld A.R submitted that the revenue has filed appeals before the Hon'ble High Court of Bombay challenging the order passed by the Tribunal. The assessee has furnished copies of order passed by the Hon'ble High Court, wherein following Substantial Questio....