2012 (3) TMI 450 - AT - Income Tax

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.

Issues Involved:
1. Non-disposal of ground Nos. 2 and 3.
2. Order u/s 263 upheld on a ground not mentioned in the show cause notice.
3. CIT's action in deciding the issue on merit instead of remitting the matter to the Assessing Officer.
4. Consistency not followed in income-tax proceedings.
5. Treatment of investment made in earlier years as stock-in-trade.
6. Other apparent mistakes concerning the merits of the issue.
7. Decision arrived at only on the basis of volume and frequency.

Issue-wise Detailed Analysis:

1. Non-disposal of ground Nos. 2 and 3:
The assessee's counsel argued that the Tribunal failed to dispose of ground Nos. 2 and 3, constituting a mistake apparent from the record. Detailed submissions were made, emphasizing that the CIT's revised show cause notice dated 21.02.2011 was different from the original notice dated 29.01.2010. The Tribunal's non-decision on these grounds was considered a mistake needing rectification.

2. Order u/s 263 upheld on a ground not mentioned in the show cause notice:
The counsel contended that the Tribunal upheld the revision u/s 263 on a ground not mentioned in the show cause notice, which is a mistake apparent from the record. The Tribunal concluded that the Assessing Officer did not apply his mind or conduct an inquiry, which was not the basis for the CIT's invocation of revisionary jurisdiction. This was supported by judgments from the Punjab and Haryana High Court and the Calcutta High Court.

3. CIT's action in deciding the issue on merit instead of remitting the matter to the Assessing Officer:
The counsel argued that even if the Assessing Officer did not apply his mind, the CIT should have remitted the matter back to the Assessing Officer instead of deciding it on merit. The Tribunal's upholding of the CIT's action was considered erroneous. Reliance was placed on decisions from the Madras High Court and the Hyderabad Bench of the Tribunal.

4. Consistency not followed in income-tax proceedings:
The counsel submitted that the principle of consistency was not followed, as the Department had accepted the assessee's stand in earlier and subsequent years. The Tribunal's rejection of this argument was considered incorrect, as there was no change in the facts and circumstances during the year under consideration. Reliance was placed on decisions from the Bombay High Court and the Mumbai Bench of the Tribunal.

5. Treatment of investment made in earlier years as stock-in-trade:
The counsel argued that the Tribunal erred in treating long-term capital gain as business income, as the shares and units in question were purchased in earlier years and reflected as investments in the balance sheet. Reliance was placed on decisions from the Mumbai Bench of the Tribunal.

6. Other apparent mistakes concerning the merits of the issue:
The counsel pointed out several mistakes in the Tribunal's order, such as incorrect assumptions about the assessee's business activities, ignoring submissions on specific issues, and incorrect factual observations regarding the volume and frequency of transactions. These mistakes were considered apparent from the record.

7. Decision arrived at only on the basis of volume and frequency:
The counsel argued that the Tribunal's decision was based solely on the volume and frequency of transactions, ignoring other relevant criteria such as the period of holding, treatment in accounts, method of valuation, absence of borrowed funds, consistency, substantial dividend income, and absence of business transactions in shares and units. This approach was considered erroneous.

Tribunal's Conclusion:
The Tribunal concluded that the arguments presented by the assessee amounted to a review of the earlier order rather than rectification. The power to rectify an error apparent on the record has limited application and does not permit the Tribunal to reverse, revise, or review its earlier order. The Tribunal held that the errors pointed out required a long drawn process of reasoning and were not mistakes apparent on the face of the record. The Tribunal emphasized that its decision was based on a possible view and that rectification is not possible when the issue is debatable. Consequently, the Tribunal dismissed the miscellaneous application filed by the assessee seeking recall of the order.

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