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TMI Blog2016 (1) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... h this miscellaneous application, the assessee is bringing altogether a new fact, which has the effect of changing the position by 360 degrees. Further, as submitted by the Ld D.R, the same is a new fact, which was not available on record and which requires verification also. It is a well settled proposition that the Tribunal is empowered to rectify the mistakes apparent from record, i.e., mistakes available on the face of record. The assessee may also agree with the position that the order passed by the Tribunal does not suffer from any mistake on the basis of facts available on record at the relevant point of time. Only, if the new facts are taken into account, the decision rendered by the Tribunal may turn out to incorrect one. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olders named Inter Gold Gems Pvt Ltd (IGGPL) to another shareholder named Rosy Blue (India) Pvt Ltd (RBPL). The IGIPL held 10,99,850 shares representing 54.99% of share capital and RBPL held 5,99,900 shares representing 30% of the share capital as at the beginning of the year. All through, i.e., before the AO, CIT(A) and Tribunal, it was submitted that the entire shareholding of 54.99% of share capital was transferred by IGGPL to RBPL. The effect of the said transfer of shares was that the assessee was denied the benefit of setting off of brought forward losses in view of the provisions of sec. 79 of the Act. The said provisions read as under:- Carry forward and set off of losses in the case of certain companies. 79. Notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital was transferred, the AO noticed that the share holding pattern has changed by more than 51% and accordingly held that the assessee is not entitled to set off the brought forward losses in view of the provisions of sec. 79 of the Act. The said decision of the AO was unsuccessfully challenged before the Ld CIT(A) and the Tribunal. 3. It appears that the assessee has later realized that IGPPL has not transferred its entire 54.99% of the share capital but it has transferred only 54.79% of the share capital retaining 4000 shares representing 0.20% of the share capital. The effect of the same was that more than 51% of the shares came to be held by the same group of shareholders and hence the bar prescribed in sec. 79 shall not be applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression is a mistake rectifiable u/s 254(2) of the Act. He further placed reliance on the decision rendered by Hon ble Jurisdictional Bombay High Court in the case of Supreme Industries Ltd Vs. CIT (2014)(369 ITR 758), wherein the Hon ble Bombay High Court has observed that the Tribunal should adopt a justice oriented approach and not defeat the legitimate rights on the altar of procedures and technicalities. Accordingly, the Ld A.R submitted that the miscellaneous application of the assessee should be accepted and the impugned order should be amended. 6. On the contrary, the Ld D.R submitted that the assessee is bringing new facts through this miscellaneous application, which was not available on record before the tax authorities as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on sale of property in the hands of one of the co-owners. Before the Tribunal, the assessee referred to the decision rendered by Ld CIT(A) in the hands of another co-owner, wherein the Ld CIT(A) had determined the market value of the property at ₹ 42.50 lakhs. The representative of the assessee submitted before the Tribunal that the value determined by Ld CIT(A) has been accepted by the department and hence the assessee would be satisfied in the same value was adopted. Accordingly the order was passed by the Tribunal. Later on, it came to the notice of the assessee that the other co-owner has challenged the order passed by Ld CIT(A) and the Tribunal has determined the value at ₹ 18.00 lakhs. Under these set of facts, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the hearing of appeal. The assessee has accepted throughout the proceedings that there was change in share holding pattern by more than 51%. The decision on the issue of eligibility of the assessee to set off the brought forward losses was adjudicated on the basis of the above said facts originally presented by the assessee. Through this miscellaneous application, the assessee is bringing altogether a new fact, which has the effect of changing the position by 360 degrees. Further, as submitted by the Ld D.R, the same is a new fact, which was not available on record and which requires verification also. 9. It is a well settled proposition that the Tribunal is empowered to rectify the mistakes apparent from record, i.e., mistakes availa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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