TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 1550
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....se law paper book filed during the original appellate proceedings, wherein the decision of Hon'ble Jurisdictional High Court in the case of CIT vs Gangeshwari Metal P Ltd reported in 361 ITR 10(Del) was specifically relied upon which was not taken note of by the tribunal while passing the appeal order. The ld. AR heavily relied upon the decision of the Hon'ble Supreme Court in the case of ACIT vs Saurashtra Kutch Stock Exchange Ltd reported in 305 ITR 227 (SC), wherein it had been held that non-consideration of decision of Hon'ble Jurisdictional High Court or of Hon'ble Supreme Court in an order would constitute mistake apparent from record in the order warranting rectification u/s 254(2) of the Act. 3. Per Contra, the ld. DR relied on the decision of Hon'ble Supreme Court in the case of CIT vs Reliance Telecom Ltd in Civil Appeal No. 7110 of 2021 and CIT vs Reliance Communications Ltd in Civil Appeal No. 7111 of 2021 dated 3.12.2021. The ld. DR argued that this tribunal does not have any power to recall the order passed by it pursuant to the decision of the Hon'ble Supreme Court in Reliance Telecom referred supra. 4. We are unable to comprehend ourselves to accept to the content....
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....s not required to re-visit its earlier order and to go into detail on merits and the powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 26. However, in our view there is a distinction between erroneous order passed on merits and an order passed on account of mistake apparent from the record. In the present Tribunal's order dt.23.11.2021, the Tribunal had committed various mistakes as mentioned in foregoing paras, however it can be summarized as under: (i) The Tribunal has not followed the earlier decisions in the case of assessee; (ii) The Tribunal had by mistake mentioned that the previous bench(es) has not considered the Explanation to section 801A while deciding the case in respect of the assessee; (iii) The Tribunal has not adjudicated the facts in the present case; (iv) The Tribunal has relied upon the decision of M/s. NEC NCC MAYTAS - JV Vs. DCIT (supra) without bringing on record how the said decision is applicable in the facts of the present case and; (v) The Tribunal committed mistake by not considering the order passed by Id.PCIT u/s 263 of the Act and subsequent order giving effect passed by the ....
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....f the question under consideration, and to treat it to be complete law declared by this Court". The Tribunal has ended up doing something which, as is the law laid down by the Hon'ble Supreme Court, is impermissible in law. That cannot but be a glaring, obvious and patent error and, accordingly, liable to be rectified under s. 254(2) of the Act. To suggest that a conscious mistake, even if that be a mistake apparent from record, cannot be rectified under s. 254(2) is somewhat devoid of logic and rationale. If a conscious mistake is a mistake apparent from record, there is no reason for not rectifying the same under the provisions of law. To err is human but there cannot be any justification for perpetuating an error. VI. In Laxmi Electronic Corporation Ltd. vs. CIT (1991) 188 ITR 398 (All) the Tribunal had omitted to consider a preliminary objection that the appeals were barred by time although the same had been urged in arguments before the Tribunal. The Court held that the proposition that a contention urged but not dealt with by the Tribunal can be taken as having been negatived is not inconsistent with the power of the Tribunal to reopen the appeal where it is brought to....
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....led a rectification application which was rejected. The High Court while deciding the appeal on merits affirmed the view of the Tribunal and held that no application u ITR s 254(2) would lie in the circumstances. On an appeal, the Supreme Court set aside the order of the High Court and remanded the matter back to the file of the Tribunal to decide the application u ITR r 29 on merits and thereafter dispose of the appeal on merits. XI. 261 ITR 49 (Del - Seth Madanlal Modi vs. CIT - The Tribunal admittedly relied on a wrong section while passing the order on merits. The Assessee filed an application for rectification on that ground. The Tribunal upheld the application and recalled its order. The Department went in appeal, the High Court upheld the decisions of the Tribunal inasmuch as reliance on a wrong provision of law tantamount to an error apparent on record. Also see 267 ITR 450 (Mad) Prithviraj Chohan vs. CIT. XII. Similarly, in case the Tribunal had dismissed the appeal of the assessee on account of low tax effect as per the CBDT Circular, or case of the assessee falls in any exceptions mentioned in board circular, then in our view the Tribunal has power to recall the or....