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TMI Blog2015 (9) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... l has correctly applied the formula in the light of the orders of the Tribunal and also the judgment of the Hon'ble M.P. High court in the case of Badri Prasad Bhagwandas & Co vs. CIT (1994 (10) TMI 268 - MADRAS HIGH COURT ), of which reference was made in the case of Govind Pd. Krishan Kumar vs. Jt. CIT (Spl.), Agra (supra). Since the Tribunal has adjudicated the issue in the light of the facts available before it, no error as suggested by the ld. counsel for the assessee, is crept in the order of the Tribunal. No merit in this Miscellaneous Application of the assessee, as no error apparent in the order of the Tribunal is pointed out. The ld. counsel for the assessee has tried to dispute the findings of the Tribunal and seeking a review of the order of the Tribunal which is not permissible under section 254(2) of the Act and we accordingly reject the Miscellaneous Application. - Decided against assessee. - M.A. No.28/LKW/2014, Arising out of ITA No.388/LKW/2011 - - - Dated:- 3-9-2015 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER For The Applicant : Shri. K. R. Rastogi, C.A. For The Respondent : Smt. Nidhi Verma Singh, D.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r liter is Y , then the total sale will be Z x X/Y. While adjudicating the issue, the Tribunal has also examined the judgment of the Agra Bench of the Tribunal in the case of Govind Pd. Krishan Kumar vs. Jt. CIT (Spl.), Agra (supra) which was directed to be followed while estimating the sales and profit thereon. In that judgment in para 10 it has been mentioned that the average sale rate per liter has to be worked out from the rates fixed by the State Excise Department on the quantity/purchase available with the assessee, therefore, the sales can be estimated multiplying the average sale rate per liter to the quantity purchased. Thereafter, the Tribunal has also laid down some formula in order to determine the sales. While adjudicating the issue in terms of the direction of the Tribunal, the Assessing Officer has categorically mentioned that in the case of Govind Pd. Krishan Kumar vs. Jt. CIT (Spl.), Agra (supra), the average sale rates were fixed by the State Excise Department, but in the instant case, no price list was notified by the Excise Department of the State Government, therefore, the total sales cannot be worked out as per formula laid down in the order of the Tribunal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sales. For the sake of reference, we extract para 10 of the order of the Tribunal in the case of Govind Pd. Krishan Kumar vs. Jt. CIT (Spl.), Agra (supra) in which the Tribunal has laid down the modalities to work out sales after rejecting the books of account:- 10. We have heard both the parties and perused the material available on record. After rejecting of books of account, the Assessing Officer has to complete the assessment to the best of his judgment in the manner laid down under section 144 of the Act. However, in the case before us, the Assessing Officer has estimated the sales by applying 2.5 times of the bid money relying on the decision of Hon'ble M.P. High Court in the case of Badri Prasad Bhagwan Das Co. (supra). In this case, the purchase price of the liquor was 11.80 per litre and the sales were at ₹ 30/- per liter. The ratio of sales to purchase was 2.5. Thus the estimation of sales was made by multiplying 2.5 to the bid money. Thus, the estimation of sales on the basis of bid money was held to be justified. In the case before us, the information regarding the purchase and sales rates as fixed by the State Govt. are not available. The ratio of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT (Spl.), Agra (supra), cannot be applied in the instant case. Therefore, the direction issued by the Tribunal could not be applied with. But in that case, the sales are to be estimated and the Assessing Officer has estimated the sales by applying the multiplier and the Tribunal having followed the order of the Lucknow Bench of the Tribunal in the case of ACIT, Kanpur vs. M/s Unnao Wines, Kanpur (supra), estimated the sales by applying the multiplier of 2.5 times of licence fee/bid money of ₹ 3,14,53,860/-. Therefore, we are of the view that the Tribunal has correctly applied the formula in the light of the orders of the Tribunal and also the judgment of the Hon'ble M.P. High court in the case of Badri Prasad Bhagwandas Co vs. CIT (supra), of which reference was made in the case of Govind Pd. Krishan Kumar vs. Jt. CIT (Spl.), Agra (supra). Since the Tribunal has adjudicated the issue in the light of the facts available before it, no error as suggested by the ld. counsel for the assessee, is crept in the order of the Tribunal. 7. Moreover, the scope of provisions of section 254(2) is very limited and only those errors which are apparent or arithmetical can only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal or of like nature, which can be detected without there being any necessity to re-argue the matter or to re-appraise the fact as appearing from the records. In another case CIT Vs. Golal Chand Agarwal; 202 ITR 14 their Lordships of Calcutta High Court have also held that section 254(2) of the Income-tax Act, 1961 empowers the Tribunal to amend its order passed u/s 254(1) to rectify any mistake apparent from the record either suo moto or on an application. If in its order there is no mistake which is patent and obvious on the basis of the record, the exercise of the jurisdiction by the Tribunal u/s 254(2) will be illegal and improper. An oversight of the fact cannot constitute an apparent mistake rectifiable under section 254(2). This might, at the worst, lead to perversity of the order for which the remedy available to the assessee is not under section 254(2) but a reference proceedings u/s 256. The normal rule is that the remedy by way of review is a creature of the statute and unless clothed with such power by the statute, no authority can exercise the power. 9. The Hon ble High Court of Allahabad in the case of CIT Vs. ITAT; 143 CTR 446 has held that sub-section (1) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ero Cycles Pvt. Ltd.; 228 ITR 463 in which their Lordships have held that rectification can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from record. Rectification is not possible if the question is debatable. Moreover, a point which was not examined on facts or in law cannot be dealt with as mistake apparent from record. In the case of ITO Vs. ITAT; 229 ITR 651 their Lordships of Patna High Court have also expressed a similar observation after holding that section 254(2) of the Act empowers the Tribunal to amend any order passed by it under sub-section (1) with a view to rectifying a mistake from record. However, section 254(2) does not authorize the Tribunal to review its order or to sit in appeal over its earlier order. If it is done, it would amount to an amendment of an earlier order with a view to rectify a mistake apparent from record, but it would be an order passed on reappraisal of the material facts and circumstances and on a fresh application of the legal position which is not permissible within the scope of section 254(2) of the Act. 11. In the case of Ms. Deeksha Suri Vs. ITAT; 232 ITR 395 their Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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