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TMI Blog2007 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... . As regards the addition of Rs. 13,81,852, the Tribunal restored the addition, reversing the order of the CIT (Appeals) reducing the addition to Rs. 5 lakhs. The present misc. application is directed against the order of the Tribunal restoring the addition of Rs. 13,81,342. 3. We have heard both the sides at length and we have also perused the record. The main contentions of the learned counsel for the assessee are that the Tribunal overlooked certain vital factual aspects of the case and committed factual mistakes while dealing with the addition of Rs. 13,81,852 and further that certain cases cited on behalf of the assessee during the hearing of the appeal did not find a place in the order of the Tribunal. In particular, it was submitted that the assessee's contention that the rate was not mentioned in the stock inventory and despite repeated queries, the income-tax authorities did not furnish the basis of the rate adopted by them for making the stock addition, was not considered by the Tribunal. Our attention in this connection was drawn to page 3, 8th line from the bottom, where it was stated by the Tribunal that the stock inventory prepared by the survey authorities had menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department, the miscellaneous application was vehemently opposed and it was urged that having regard to the tenor of the observations made by the Tribunal at page 8 of its order there is no scope for any kind of rectification, let alone a rectification in the manner desired by the assessee. Strong reliance was placed on these observations to contend that they take care of the contentions of the assessee. It was submitted that the order of the Tribunal has to be read as a whole and if its found on such reading that the claims and contentions of the assessee have been dealt with in substance then there would be no scope to contend that some points were left out of consideration and therefore the order of the Tribunal requires rectification. It was pointed out that the Tribunal had observed that despite opportunities the assessee did not submit the rates of the inventorised items to the Assessing Officer and it was in such circumstances that the Tribunal was left with no option but to confirm the addition. It was pointed out that the points taken by the assessee in the miscellaneous application can at best give rise to some argument or show that the assessee has an arguable case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contentions, the Tribunal proceeded to dispose them of in paragraph 9 of its order. The findings of the Tribunal are : (a) that the addition was based on specific material gathered during the survey in the course of which stock inventory was prepared; (b) there is no force in the argument that the inventory gave only the particulars of quantity and rate but not the value because once the quantity and rate are given, the value is only a matter of calculation; (c) the inventory of stock was countersigned by the assessee and, therefore, it may be assumed that it was furnished to the assessee on the date of survey; (d) the department has acted on specific material but the assessee has not relied upon an iota of material to dispute the inference drawn, except criticizing the procedure; (e) the Assessing Officer is right in saying that it was incumbent upon the assessee to furnish his own valuation or to establish that the valuation of the Assessing Officer was not correct; (f) the assessee himself admitted during the survey that proper trading records were not admitted and the return was filed on ad hoc basis; (g) the assessee has not relied on any documentary evidence to dispute the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as really no need to examine the case-law relied on by the assessee. The mere non-mention of the decisions does not give rise to any mistake apparent from record when the order of the Tribunal has proceeded on the factual basis. There may even be an error of judgment in appreciating the impact of the points raised by the parties before the Tribunal which may make its order vulnerable in further appeal but that also does not give rise to a mistake apparent from the record. If on a fair and whole reading of the Tribunal's order, one can broadly say that the Tribunal has fairly and substantially dealt with the contentions raised by the parties before it or the issue in all its important aspects, the mere fact that there has been an omission of some incidental points or to refer to a decision or authority cited before it does not give rise to a mistake apparent from the record. 10. In CIT v. Honda Siel Power Products Ltd. [2007] 158 Taxman 56 , the Hon'ble Delhi High Court, after a review of the authorities on the question, has held that the power to rectify a mistake under section 254(2) is not equivalent to a power to review or recall the order sought to be rectified. In paragraph 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. [2007] 159 Taxman 122, again the Hon'ble Delhi High Court reiterated its judgment in Honda Siel Power Products Ltd.'s case (supra) and held that under section 254(2) the decision of the Tribunal cannot be reviewed in the guise of a rectification. 12. A perusal of these two judgments of the Hon'ble jurisdictional High Court, apart from reiterating the well-established position in law that no review of the order is permissible under section 254(2) also reveals another aspect of the matter. The provisions of section 260A were introduced into the Income-tax Act with effect from 1-10-1998 by the Finance (No. 2) Act, 1998, providing for an appeal to the High Court from the order passed by the Tribunal if the case involves a substantial question of law. The provisions of section 256 which contained the earlier procedure for reference of a question of law to the High Court were suitably amended. The High Court was, thus, constituted as an appellate Court under section 260A. Earlier under the advisory jurisdiction under section 256, the view was that when a reference of a question of law is made to the High Court, the Tribunal does not lose seizin of the appeal which continuous to rema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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