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2019 (8) TMI 231 - AT - Income TaxRectification u/s 254 - income from sale of shares have been treated as capital gains OR business income - HELD THAT - A perusal of the above facts clearly indicate that the applicant has not pointed out any mistake apparent from the record. A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. This view is supported by the decision of the Hon ble Supreme Court in T.S. Balaram, ITO v. Volkart Bros . 1971 (8) TMI 3 - SUPREME COURT , Master Construction Co. P. Ltd. v. State of Orissa , 1965 (12) TMI 108 - SUPREME COURT , Karam Chand Thapar Bros. (Coal Sales) Ltd. v. State of U.P. 1976 (7) TMI 143 - SUPREME COURT . In fact, not a single error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. The Hon ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji 1970 (3) TMI 163 - SUPREME COURT that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2) of the Act
Issues Involved:
1. Consideration of case laws and propositions laid down therein. 2. Classification of repetitive transactions as business income. 3. Doctrine of res judicata or estoppel by record. 4. Rule of uniformity in treatment and consistency. 5. Tribunal's power to review its own order under section 254(2) of the Act. Issue-wise Detailed Analysis: 1. Consideration of Case Laws and Propositions: The applicant contended that the ITAT did not consider the propositions laid down in the case laws cited by the assessee while adjudicating ground No. 1 for AY 2006-07. Specifically, the ITAT concluded that the assessee's transactions were systematic and organized without detailing the characteristics of such a manner. For AY 2008-09, similar contentions were raised regarding the systematic and organized nature of transactions in five scripts. 2. Classification of Repetitive Transactions as Business Income: For AY 2006-07, the ITAT found that the assessee engaged in repetitive transactions in Bharati Shipyard and Sah Petro scripts, which were deemed systematic and organized, thus classified as business income. Similarly, for AY 2008-09, repetitive transactions in Great Offshore Ltd., Orbitco, JSW Steel Ltd., Sesa Goa Ltd., and K.S. Oils Ltd. were classified as business income. The Tribunal confirmed the CIT(A)'s order treating the respective amounts as business income but directed the AO to allow related business expenses. 3. Doctrine of Res Judicata or Estoppel by Record: The Tribunal referred to the decisions in New Jehangir Vakil Mills Co. Ltd. v. CIT and T.M.M. Sankaralinga Nadar & Bros., stating that the doctrine of res judicata or estoppel by record does not apply to AO’s decisions. The Tribunal noted that a decision by income tax authorities in one year could be departed from in a subsequent year. 4. Rule of Uniformity in Treatment and Consistency: The applicant argued that the rule of uniformity and consistency should have been followed, citing that in the appellant's own case for other assessment years with identical facts, the income from repetitive transactions was treated as capital gains, not business income. The Tribunal should have considered the principle of uniformity and consistency as laid down by various Supreme Court judgments. 5. Tribunal's Power to Review its Own Order under Section 254(2): The Ld. DR argued that there was no mistake apparent from the record in the impugned order and that the Tribunal does not have the power to review its order under section 254(2) of the Act. The Tribunal agreed, stating that a mistake apparent on the record must be obvious and not something that requires a long reasoning process. The Tribunal cited several judgments supporting this view, including T.S. Balaram, ITO v. Volkart Bros., and others, concluding that the Tribunal cannot review its own decision unless permitted by statute. Conclusion: The Tribunal found no apparent mistake in the impugned order and dismissed the Miscellaneous Applications (MA) as devoid of merit. The Tribunal emphasized that it does not possess the inherent power to review its decisions unless specifically conferred by law. The order was pronounced in the open Court on 23/07/2019.
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