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TMI Blog1997 (2) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... y when the entries are not recorded in the books of account if any maintained by the assessee. Here common book was maintained by the assessee and the entries were entered in the book and therefore income cannot be assessed under section 69 of the I.T. Act. This is a mistake apparent from the records. (c) Relating to seized account Book No. SD 53, the Assessing Officer himself accepted part of the entries from that book relating to other members. Then it is erroneous to say that the book is not a common book. Therefore, it is a mistake apparent from the records. (d) As per the draft assessment order, originally, the income was assessed amounting to Rs. 1,22,611 under the head 'Business' whereas in rectification proceedings, this income has been held by Officer as under head 'Other sources' though no such direction was given by the Appellate Order. As such the Tribunal decision is erroneous and mistake is apparent from the record. (e) The Tribunal has erred in holding that the set aside of order was limited purposes but from the order dated 17-9-1979, passed by the Income-tax Officer, giving effect to the Appellate decision in I.T.A. No. 24/79-80 C.C.IV(8), it will be observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to 29 other debtors were not at all disclosed in the regular books. The advances made to the eight specified debtors were not only obtaining in the duplicate and regular books relating to the assessee but also those standing in the names of the remaining members of the assessee's family. The aggregate of the outstandings due as on 14-11-1974 from the eight specified debtors, standing in the name of the assessee and his other family members, as per the seized books, was greater than the outstanding balances due from the very same debtors, as disclosed in the regular books maintained by the assessee and his family members for income-tax purposes." The income of the assessee was originally computed on the basis of the difference between the opening balance in all the accounts put together as per books numbered as SD 27, 22, 34, 38, and 47 and the amount of opening balance as per SD 53. The assessee's plea was that it should be assessed only in respect of the amount advanced by it but not on the amount of difference found in the consolidated SD 53. Another plea was that the Voluntary Disclosure made by the other members of his family whose books were seized in the premises of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was of the view that question was definitely concluded against the assessee in the first appellate order and, therefore, the CIT(A) in the second round of litigation could not have reopened the issue for rendering the decision. It also held in para 11 of its order as follows: "Whereas the other members of the assessee family came forward with the voluntary disclosures claiming that they have made undisclosed advances up to the assessment year 1975-76 there may be some justification in the absence of other valid constraints for the learned Commissioner (Appeals) to reduce the quantity of undisclosed advances for the assessment year 1975-76 taking into consideration the admitted disclosures by the other members of the assessee family, but there is no such justification available, when we come to deal with the appeal for the assessment year 1976-77." However, no relief was granted in the order of the Tribunal in respect of the assessment year 1975-76. For the assessment year 1976-77, the assessment was confirmed. It is in this background that we have to consider the points raised by the assessee in the Misc. Petition. 4. The assessee's plea is that the difference with the open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecalling the Tribunal order is whereas the income was assessed under the head 'Business', in a rectification proceeding the amount was included under the head 'Other sources' even though there was no direction to that effect by the first appellate authority in the first round of litigation and the Tribunal erred in confirming the assessment of Rs. 1,22,611 under the head 'Other sources' in its order cited supra. This appears to be a mistake. 6. Understanding the order of the first appellate authority dated 21-8-1979 as one for a limited purpose, it cannot be gainsaid that the limited purpose was for determining the correct tax liability of the assessee and the specific direction that a trial balance should be made and the excess investments over the credits should be ascertained, is a direction to consider the claim of the assessee in respect of the investments belonging to the relatives of the assessee. This aspect has not been dealt with by the Tribunal and this inadvertent omission appears to constitute a mistake apparent on record. 7. For the above reasons, the order of the Tribunal dated 19-11-1990 is recalled. 8. In the result, the Misc. Petition is allowed. Per Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers, the matter is referred to the President, ITAT for enabling him to appoint a Third Member to decide the following question: "Whether, on the facts and in the circumstances of the case, the miscellaneous petition is fit to be allowed to recall the order of the Tribunal dated 19-11-1990?" THIRD MEMBER ORDER 1. This Miscellaneous Petition is filed by the assessee under section 254(2) of the I.T. Act, requesting the Tribunal to recall its order dated 19-11-1990, made in ITA Nos. 663 664 (Mds)/1995, relating to the assessment years 1975-76 and 1976-77, on the ground that certain mistakes apparent from record have crept into the order of the Tribunal and that the appeals may be heard afresh and decided according to Law. 2. As there is a difference of opinion between the Members that heard this Miscellaneous Petition, the following question has been referred under section 255(4) of the I.T. Act for decision by a Third Member: "Whether, on the facts and in the circumstances of the case, the Miscellaneous Petition is fit to be allowed to recall the order of the Tribunal dated 19-11-1990?" 3. In the order passed by the learned Judicial Member, the alleged mistakes have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner only. The Assessing Officer rejected the said contentions and made the addition. Aggrieved by the assessment, the assessee carried the matter in appeal. 6. It would appear that the assessee and his family members have made disclosures of their income and wealth under the Voluntary Disclosure Scheme, disclosing some of the amounts mentioned in SD 53. It was contended before the CIT (Appeals) that inasmuch as the disclosure had been made in the names of the sons and wife of the assessee, the same should be given a set off in the assessment of the assessee herein. The learned CIT(A) by his order dated 21-8-1979, rejected the said contention of the assessee holding as follows: "So far as the contention that since the disclosure had been made in the names of the sons and wife of the assessee, the same should be given a set off in the assessment of the assessee concerned, I am not in agreement with the same. It is in the assessee's books that the advances are found to have been given and it is to the extent of the disclosed income by the assessee alone that can be given a set off." 7. An alternate contention was raised before the CIT (Appeals) to the effect that certain c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the assessee again contended before the First Appellate Authority that the amounts noted in SD 53 related to the assessee and his family members, that the assessee and his family members have disclosed various amounts under voluntary disclosure scheme and that the amounts mentioned in the seized books should be apportioned among the assessee and the family members and it cannot be added in lump sum in the hands of the petitioner/assessee only. The learned CIT (Appeals) felt that his predecessor's earlier order setting aside the assessment was not for the limited purpose of examining the two specific issues only and that inasmuch as the assessment was set aside, all the issues were wide open and that the question whether the amounts mentioned in SD 53 belong exclusively to the assessee or they have to be distributed proportionately among the assessee and the family members can be considered. He disregarded the earlier findings of his predecessor in office that the gross amount mentioned in SD 53 should be added in the hands of the petitioner/assessee and chose to give the relief prayed for by the assessee. Aggrieved by it, the revenue preferred the appeal for the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras High Court has categorically held that a power to rectify the mistake does not include a power to review. The Tribunal could only have rectified the mistake pointed out by the assessee or the Department. It has no power or authority to review its own earlier order. Section 254(2) confers a limited jurisdiction on the Tribunal to rectify any mistake apparent from the record or amend any order passed by it under section (1) of section 254. Thus, with a view to rectify any mistake apparent from record, the Tribunal may amend any order passed by it under sub-section 254(2). The scope of section 254(2) is very limited. It is restricted to correct the mistakes apparent from record. If reasonably two views are permissible on an issue and a Bench of the Tribunal follows one such view and makes the order, another Bench of the Tribunal has no jurisdiction to recall the first order on the mere ground that the other view is more rationale or more reasonable. One Bench cannot sit in appeal over the order passed by another Bench. In this connection it would be relevant to refer to the observations made by the Andhra Pradesh High Court in the case of CIT v. ITAT [1994] 206 ITR 126. The High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all aspects and applying its mind, has come to that view. Even if the said view is held to be erroneous, it cannot be said to be a mistake apparent from record since the said view having been arrived at, after due application of mind to the facts on hand and the relevant material on record. When once it is held that the first order of the CIT (Appeals) was a limited one, giving a limited mandate to the Assessing Officer to examine two specific issues only, and nothing more, and re-frame the assessment, the alleged mistakes pointed out in this petition cannot be said to be mistakes at all. The same can be considered to be mistakes if the first order of the CIT (Appeals) setting aside the assessment was not a limited one. However, that is not the case here. The specific finding of the Tribunal is that the scope of the said order of the CIT (Appeals) is very limited and that the findings given by the CIT (Appeals) in the said order which has become final cannot be unsettled by his successor-in-office in the second round of litigation. 17. In my considered opinion, the learned Accountant Member very rightly came to the conclusion that in case this petition is allowed, it amounts to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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