TaxTMI 
TaxTMI 
TaxTMI 
2017 (11) TMI 1848
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....015. 2. The Revenue has taken similar grounds in these Miscellaneous Applications and has requested for rectification of orders on account of the certain alleged mistakes apparent from record. For the sake of convenience the alleged mistakes as contained in the Miscellaneous Applications in M. A. No. 35/Asr/2017 are reproduced below: "5. From a perusal of the records it is noticed that the following perversities have arisen in this case which need the kind attention of this Hon'ble bench. (a) The Ld. CIT(A) vide para No.6.9 of his order had calculated the profit on gross purchases at 27.66% and on Net purchases (after discount) at 38.23%. Finally he applied the profit rate of 38.23% to Net purchases of Rs. 5,32,29,279/- (b) The Hon'ble ITAT has applied the profit rate calculated by the Ld. CIT(A) for gross purchases to the figure of Net purchases determined by him. As a result, despite the rejection of books of a/c the profit determined by the ITAT in A.Ys. 2008-09 and 2012-13 is even lower than the profit returned by the assessee. Even in other Assessment Years, it has been determined at a considerably lower amount. (c) At page-22 of its order the H....
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....ses. It was submitted that though the Ld. CIT(A) has applied the higher rate of profit based on net purchases, the Hon'ble Tribunal had applied the same G.P., which has been calculated of Ld. CIT(A) on gross purchases and our specific attention was invited to para 28 of the order of the Tribunal. The Ld. AR submitted that Hon'ble Tribunal has clearly held that the gross profit ratio relied on by Ld. CIT(A) gave absurd figures and after recording a finding of fact, the Hon'ble Tribunal has held that the application of this gross profit ratio was in consonance with the findings of Assessing Officer, which he had made in the beginning of the assessment order and where he has held that rate of profit in this trade is more than 20% and therefore in view of these facts, the Ld. AR argued that the Hon'ble Tribunal has recorded a finding of fact for applying gross profit rate and therefore there is no mistake apparent from record. The Ld. AR submitted that it is a settled law that either party cannot ask for review in the garb of application u/s 254(2) which is subject of a long drawn process of arguments and in view of the above it was prayed that applications of dep....
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.... the basis of gross discount received by the assessee as compared to gross purchases made by the assessee should have been applied and the application of this gross profit ratio is in consonance with the findings of the AO, which he had made in the beginning of the assessment order for AY 2009-10, where he has held that rate of profit in this trade is more than 20%. The Gross Profit ratio calculated on the basis of gross discount and gross purchases as tabulated below. 2008-09 25.17% 2009-10 24.29% 2010-11 26.09% The contention of the ld. counsel that gross profit ratio with respect to sales should have been applied while working out suppression in the gross profit does not carry any force as the sale figure in the trading account itself was not reliable. Therefore, any working with respect to sale will not give fair results. Moreover, the argument of the ld. counsel that assessee be allowed relief on account of wastage etc. equivalent to 10% of purchase also do not carry any force in view of the fact that method of valuation of stock as adopted by the assessee and as noted in audit report is ....
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....ble 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 observed by the Supreme Court in Master Construction Co. (P) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. A similar view was also expressed in Satyanarayan Laxminarayan Hedge v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137. It is to be noted that the language used in Order 47, Rule 1 of the Code of Civil Procedure, 1908 is different from the language used in section 254(2) of the Act. Power is given to various authorities to rectify any 'mistake apparent from the record' is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of 'an error apparent on the face of the record'. Mi....
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....terfere with the decision of the Tribunal." Similarly, the Hon'ble Madras High Court decisions in T.C.(A) No. 156 of 2006 dated 21.08.2007 in the case of CIT Vs. Tamil Nadu Small Industries Development Corporation Ltd. wherein the Hon'ble High Court held as under: "The Tribunal has no power to review its order. When the Tribunal has already decided an issue by applying its mind against the assessee, the same cannot be rectified under Section 254 (2) of the Act. There was no necessity whatsoever on the part of the Tribunal to review its own order. Even after the examination of the judgments of the Tribunal, we could not find a single reason in the whole order as to how the Tribunal is justified and for what reasons. There is no apparent error on the face of the record and thereby the Tribunal sat as an appellate authority over its own order. It is completely impermissible and the Tribunal has traveled out of its jurisdiction to allow a Miscellaneous Petition in the nake of reviewing its own order." "In the present case, in the guise of rectification, the Tribunal reviewed its earlier order and allowed the Miscellaneous Petition which is not in acco....