2012 (3) TMI 450 - ITAT HYDERABAD

Rectification of mistake - Revision u/s 263 - treatment of income arising on sale of shares acquired by the assessee as income from business instead of capital gain - Held that:- On consideration of the present arguments of the counsel for the assessee amounts to reviewing of earlier Tribunal order rather than rectification. The power so conferred on the Tribunal to rectify an error apparent on the record has a limited application. It does not enable the Tribunal to reverse, revise or review the earlier order of the Tribunal but it permits only such error which is on the face of the record to be corrected. However, it does not permit to review or rewrite the order of the Tribunal. The jurisdiction u/s. 254(2) is limited to rectifying the error which is patent, manifest and self-evident which does not require elaborate discussion of evidences or arguments to establish it. The argument of the assessee's counsel before us suggests that to discover the error in the order said to have crept in the order requires a long drawn process of reasoning and it is not a mistake at the face of the record. The Tribunal has taken one possible view and that cannot be said to be covered by an error apparent on the face of the record. What can be rectified u/s. 254(2) should be apparent and patent. The mistake has to be such for which no elaborate reasons or enquiries are necessary.

Where two views are possible, then it cannot be said to be a mistake apparent on record. Rectification can be done only when a glaring mistake of fact or law is committed by the Tribunal while passing the order and which is apparent from record. Rectification is not possible when the issue is debatable.

In our opinion, the learned counsel for the assessee seeks review of the earlier order of the Tribunal which Tribunal has no power. In this case the Tribunal after considering the entire facts and circumstances of the case came to conclusion that the CIT validly invoked the provisions of section 263 and also held that income arising on sale of shares/units is 'income from business' and it is not income form 'capital gains'. While holding so, this Tribunal discussed all the contentions raised by the parties and now reviewing or recalling of order on the basis of certain stray observations which are alleged to be incorrect as it had not relied solely on the said observations in coming to the conclusion.