1990 (11) TMI 111

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....s and in the circumstances of the case, the Tribunal was legally competent to review the matter instead of correcting only the apparent mistakes ? 3. Whether the Tribunal was legally justified in observing that the question raised and its non-determination is a mistake apparent from the record which deserves to be rectified in spite of the legal position that any point raised which has not been specially dealt with is presumed to have been decided against the concerned party ?" Orders of assessment relating to the assessment years 1980-81 and 1981-82 were revised by the Commissioner under section 263. The Commissioner's orders were appealed against by the assessee before the Tribunal. A preliminary objection was raised before the Trib....

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....proposition that where a contention is urged by a party but is not dealt with by the Tribunal, the contention must be deemed to have been negatived. He submitted that, in such a situation, the Tribunal has no jurisdiction to reopen the appeals since it cannot be said that its order suffers from any error apparent on the face of the record. It is not possible to agree. It may be that a contention urged but not dealt with by the Tribunal can be taken as having been negatived. This proposition is, however, not inconsistent with the power of the Tribunal to reopen the appeal where it is brought to its notice that an important contention raised by the party was not dealt with by the Tribunal in its order. By way of illustration, take a case wher....

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....ourt in Hari Vishnu Kamath v. Ahmed Ishaque, AIR 1955 SC 233. Suffice it to say that failure to deal with a preliminary objection relating to maintainability of the appeal on the ground of limitation does amount to an error apparent on the face of the record. It is neither possible nor desirable to try to define the said expression or to lay down the several situations attracting the same. We must state that no question is raised with respect to the correctness of the finding that the appeals were barred by time. All the three questions sought to be raised relate to the power of the Tribunal to reopen the appeals. We agree with learned counsel for the assessee that the Tribunal has no power to review. Its only power is one of rectific....