9911796707
TMI Blog2003 (11) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... ing into 197 pages. Further, on 21st March, 2003, 8 pages were submitted along with the copy of order of Hon'ble Rajasthan High Court dt. 27th Jan., 2003. Further, he mentioned in his M.A. in para 1.2 that along with written submission of 8 pages on 1st April, 2003, 3 pages of case laws were also submitted. The applicant also submitted rejoinder dt. 2nd April, 2003, running into 7 pages where the copy of letter dt. 25th Nov., 2002 and notice of demand dt. 25th Feb., 2003 were annexed. He further submitted that the applicant also submitted other details on 3rd April, 2003, running into 37 pages. The learned Authorised Representative expressed his grievance by submitting that the Tribunal vide its order dt. 25th April, 2003 has not considered the entire material as mentioned above. By giving the different instances mentioned in its miscellaneous application as well as in the tabular chart, he submitted that the Tribunal has not specifically considered the following papers from the assessee's paper book: Pages 156-166, 123, 4, 5 (additional) 172-184 (Affidavit), rejoinder dt. 2nd April, 2003 para 3.4 on p. 14 along with affidavit, etc. 4. The learned Authorised Representative furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the duty of the Tribunal to consider all the facts and give reason for its decision. In the instant case, the Tribunal was in agreement with the CIT, but has not given any reasons for remanding the matter. He also relied on the following cases: (i) K. Assan Koya & Sons (1988) 67 CTR (Ker) 265 : (1988) 172 ITR 677 (Ker) (ii) P.J. Philip vs. State of Kerala (1993) 110 CTR (Ker) 338 : (1993) 201 ITR 591 (Ker) Further, he submitted that in the case of Deeksha Suri vs. ITAT (2003) 179 CTR (SC) 265, the Hon'ble Supreme Court observed that the Tribunal was required to dispose of the pending application under the ITAT Rules before hearing the appeal on merits. High Court was not justified in asking (sic-holding) that s. 254(2) was not attracted. So, the order of the Tribunal was set aside and remitted to Tribunal to dispose of the application on merits and thereafter proceed to dispose of the appeal on merits. Lastly, he submitted that in the interest of justice, the paras mentioned in the miscellaneous application tabular chart deserve to be incorporated. For this purpose the impugned Tribunal's order may kindly be amended/recalled. 6. On the other hand, the learned Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wati Developers (P) Ltd. (2003) 182 CTR (Cal) 619 : (2003) 261 ITR 658 (Cal) (2) Trikamlal Maneklal, In re (1958) 33 ITR 725 (Bom) (3) T.S. Balaram, ITO vs. Volkart Brothers (1971) 82 ITR 50 (SC) (4) J.N. Shani vs.ITAT (2002) 174 CTR (Del) 367 : (2002) 257 ITR 16 (Del) (5) ITO vs. ITAT (1987) 65 CTR (Raj) 8 : (1987) 168 ITR 809 (Raj) (6) Deeksha Suri vs. ITAT (1998) 146 CTR (Del) 576 : (1998) 232 ITR 395 (Del) (7) Dr. Rajah Sir M.A. Muthiah Chettiar (Decd.) vs. CIT (1999) 156 CTR (Mad) 318 : (1999) 238 ITR 505 (Mad). 9. Lastly, the learned Departmental Representative justified the order of the Tribunal by submitting that there is no mistake apparent from the record. 10. To counter it, the learned Authorised Representative submitted that the case laws cited by the learned Departmental Representative were either overruled or have no relevance with the facts of the case. Similar views were expressed by the learned Departmental Representative about the case laws cited by learned Authorised Representative. 11. We heard both the parties at length and gone through the material available on record. First of all, we would like to mention that the Tribunal has very limited power und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the mistake. If there is a mistake, it remains as a mistake and which needs to be corrected and decision is to be arrived at on the basis of corrected facts and it may completely reverse the findings or support the findings completely or partially of the earlier order. 15. Now what is mistake. "Mistake" is an ordinary word but in taxation law it has a special signification. It is not an arithmetical or clerical error that comes within its purview. It comprehends errors which are discerned after the judicious probe into the record from which it is supposed to emanate. It is difficult to axiomatise and lay down dicta for the discovery of a mistake from official records. It is inherently indefinite in scope and mostly subjective, the dividing line being thin and undiscernible. In the ultimate analysis, a well equipped and trained judicial mind will reach after scrutinising the record on a conclusion which will govern his finding whether it is a mistake or not. 16. The Madras High Court in T.S. Rajan vs. CED (1968) 69 ITR 342 (Mad) observed: "for a rectification of an error which is said to be apparent from the record, the mere complexity of the problem or that genuine argument i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curat lex, which means that law takes no account of very trifling matters. 19. The Hon'ble Supreme Court in the case of CIT vs. Karam Chand Thapar & Bros. (P) Ltd. (1989) 76 CTR (SC) 36 : (1989) 176 ITR 535 (SC) observed as under: "It is equally well settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the Court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusion arrived at by the Tribunal is perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula. If the judgment of the Tribunal shows that it has, in fact, done so, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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