2006 (8) TMI 233 - AT - Income Tax

Summary

Issues Involved:
1. Typographical errors
2. Decision of the coordinate Bench of the Tribunal in the case of five companies not considered
3. Findings of facts given by the CIT(A) in other cases not recorded
4. Jurisdiction of the Tribunal under section 254(2) when an appeal is pending under section 260A

Detailed Analysis:

1. Typographical Errors:
The Tribunal identified and corrected several typographical errors in its consolidated order dated 7th April 2005. These corrections included:
- Substitution of "68/2003" in place of "68/2002" for M/s Astral Investment & Trading Co. (P) Ltd. for the assessment year 1998-99.
- Correction of the figure "48" in place of "42" at page 2, paragraph 1.
- Replacement of the word "trading" with "traders" at page 2, paragraph 2, line 5.
- Substitution of specific figures at page 27, line 25.

2. Decision of the Coordinate Bench of the Tribunal in the Case of Five Companies Not Considered:
The Tribunal acknowledged that it had not taken into account its own earlier decisions in the case of five companies which followed the decision in Vesta Investment & Trading Co. (P) Ltd. The Tribunal rectified this by noting that the decisions in the following cases should have been considered:
- Saptrishi Investment & Trading Co. (P) Ltd.
- Ranbaxy Managers Welfare Ltd.
- Abhay Investments (P) Ltd.
- Wesrex Investments (P) Ltd.
- Jupiter Investments (P) Ltd.

The Tribunal admitted that it should have either made inquiries from the assessee or based its findings on some material on record. It corrected the oversight by substituting paragraphs 23 to 26 of the original order with new paragraphs that accurately reflected the decisions in these cases.

3. Findings of Facts Given by the CIT(A) in Other Cases Not Recorded:
The Tribunal noted that its previous finding that "there is no decision of the Tribunal in other assessees" was not based on any material on record and was a presumption. The Tribunal rectified this by modifying its order to reflect the correct facts and decisions related to the other assessees.

4. Jurisdiction of the Tribunal under Section 254(2) When an Appeal is Pending under Section 260A:
The Tribunal addressed the question of whether it could exercise its powers under section 254(2) when an appeal against its order had been admitted by the High Court under section 260A and was pending disposal. The Tribunal concluded that there was no conflict or overlap in jurisdiction between sections 254(2) and 260A. Section 254(2) allows for rectification of a mistake apparent from the record, while section 260A permits adjudication by the High Court on substantial questions of law. The Tribunal cited the Supreme Court's decision in Kunhayammed vs. State of Kerala, which clarified that the doctrine of merger does not apply unless the appellate authority modifies or reverses the decision.

The Tribunal also referenced the case of Electropack vs. Dy. CIT, which held that unless the High Court formulates a substantial question of law and admits the hearing, there is no merger between the Tribunal's order and the High Court's order. The Tribunal concluded that it retained the jurisdiction to rectify mistakes under section 254(2) even when an appeal under section 260A was pending.

Conclusion:
The Tribunal allowed the miscellaneous applications, rectified the identified errors, and provided a detailed explanation for its jurisdiction under section 254(2) despite the pending appeals under section 260A. The Tribunal emphasized the importance of justice and the necessity to correct mistakes to avoid miscarriage of justice. The Tribunal's decision was thorough and addressed all the issues raised comprehensively.