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TMI Blog2013 (10) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act – Miscellaneous Application filed by the assessee is dismissed – Decided against the Assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... felt that these cash credit entries could not represent the income or profits of the assessee- company as they were all made very soon after the company commenced its activities. Thus, it is factually incorrect to say that the dispute in this case was with regard to large amount of cash appearing on the first day of the accounting year. Secondly, though there were no separate provisions in Indian Income Tax Act, 1922 corresponding to s. 68 of the Income Tax Act, 1961, yet it was laid down in several decisions on the basis of general principles that cash credits which were not satisfactorily explained could be treated as income of the assessee. Therefore, it is contrary to the law to say that provisions of s. 68 deal with cash credits in a manner different from that of the Indian Income Tax Act, 1922. 5. The AR submitted that even under the provisions of Income Tax Act, 1961 it was held by various courts that cash credited on the first day of the accounting year cannot be treated as income of the assessee. In India Rice Mills vs. CIT (218 ITR 508) (All.) it was held that "the Tribunal should have taken note of the fact that all the deposits aggregating to Rs. 1,43,000 represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 20th December, 2012 by removing the above mentioned errors. In the alternative, he prayed that the Tribunal may recall its order dated 20th December, 2012 and hear the appeal afresh. 9. On the other hand, the learned DR submitted that there is no mistake apparent in the order of the Tribunal. The Tribunal had considered entire facts and circumstances of the case and had given finding. He relied on Homi Mehta & Sons (P) Ltd. v. DCIT (63 ITD 15) (Mum), Dharamchand Surana v. ITO (61 ITD 115) (Mad) (TM), CIT vs. Ramesh Electric and Trading Co. (203 ITR 497) (Bom). 10. We have heard both the parties and perused the material on record. In the present case, the CIT(A) allowed appeal of the assessee by observing that the business of the assessee had not yet been commenced, there would not be any occasion for the company to earn unaccounted income and introduce it in the firm as share capital and deleted the addition by placing reliance on various decisions more specifically on the judgement of Supreme Court in the case of CIT vs. Bharat Engineering & Construction Company (cited supra). However, the Tribunal considering the entire facts and circumstances of the case vacate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 12. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under s. 254(1) is the effective order so far as the appeal is concerned. Any order passed under s. 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining un-amended is the effective order for all practical purposes. An order under s. 254(2) does not have existence de hors the order under s. 254(1). Recalling of the order is not permissible under s. 254(2). Recalling of an order automatically necessitates rehearing and re-adjudication of the entire subject-matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant aspect of legal certainty in the rule of law and that principle is not obliterated by s. 254(2) of the Act and non-consideration of precedent by the Tribunal causes a prejudice to the assessee. (c) Thirdly, power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. (d) Fourthly, under s. 254(2) an oversight of a fact cannot constitute an apparent mistake rectifiable under the section. (e) Fifthly, failure on the part of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgement. (f) Sixthly, even if on the basis of a wrong conclusion the Tribunal has not allowed a claim of the party it will not be a ground for moving an application under s. 254(2) of the Act. (g) Lastly, in the garb of an application for rectification under s. 254(2) the assessee cannot be permitted to reopen and reargue the whole matter as the same is beyond the scope of s. 254(2) of the IT Act. 16. Further, in the case of CIT vs. Karam Chand Thapar & Bros. Pvt. Ltd. (176 ITR 535) (SC) wherein held that the decision of the Tribunal has not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee the Tribunal distinguished the judgement of Supreme Court in the case of Bharat Engineering & Construction Co. (cited supra). Thus, in view of our detailed discussion, we concluded that the Tribunal is justified in rejecting the grounds taken by the assessee . 19. Further from the order of the Tribunal dated 20th December, 2012, it is evident that the Tribunal considered the arguments of the assessee's counsel as well as the ratio of the decisions of the Supreme Court elaborately discussing the same in the order. Hence, it cannot be said that the Tribunal has not considered the case-law cited by the learned AR for the assessee as alleged in the Miscellaneous Application. On the contrary, the Tribunal in the order, after taking note of the case-law relied upon by the learned AR for the assessee, gave reasoning why it was not relevant to consider the same. The averment of the assessee is that the decision of the Apex Court relied on by him has not been applied by the Tribunal while coming to the conclusion in the Tribunal order, is not a mistake apparent on record falling within the scope of section 254(2) of the IT Act in view of our discussion hereinabove in this order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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