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TMI Blog2007 (5) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... t advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal has not allowed a deduction, even if the conclusion is wrong, that will be no ground for moving an application u/s 254(2) of the Act. Further, in the garb of application for rectification, the assessee cannot be allowed to be permitted to reopen and reargue the whole matter, which is beyond the scope of this section and same is the view of this court in the case of Ms. Deeksha Suri [ 1997 (5) TMI 20 - DELHI HIGH COURT] . Accordingly, we find that the present appeal is wholly misconceived and without any basis and we do not find any reason to disagree with the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an appeal before the Tribunal. The Tribunal vide order dated April 22, 2004, upheld the disallowance of loss of Rs. 38,30,000. 5. Thereafter, the assessee filed an appeal before this court. While disposing of the appeal, it was observed by this court on December 6, 2004, that : In view of paragraphs 13 and 14 of the Tribunal's order, it is not possible for us to accept the contention that the assessee had produced books of account. It is for the Tribunal, which is a fact finding authority, to examine the same and to record a finding. If the appellant had produced all the necessary documents in this behalf, then the Tribunal should have examined the same. In fact, in such a situation, instead of approaching this court, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal has been disposed of by this court. Now by way of present appeal, the assessee cannot reagitate the same issue again. 10. Now, coming to the order dated June 15, 2005, passed by the Tribunal, it would be fruitful to reproduce the relevant section, that is, section 254(2) of the Act which is necessary for the purposes of disposal of the present appeal, which reads as under : 254. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub- section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer : Provided . . . 11. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectly achieved by recourse to section 254(2) of the Act. 13. Paras 13 and 14 of the order dated April 22, 2004, passed by the Tribunal, the reference of which is there in this court's order dated June 6, 2004, reads as under : 13. In the light of the above principles, we now proceed to examine the present case. No doubt, in the approval given by the RBI on July 15, 1995, the payment of the loan is stated to be working capital requirements. But that does not in our opinion establish that the assessee has in fact utilised the loan for working capital. It was for the assessee, which possesses exclusive knowledge as to the utilisation of the loan, to prove the same by leading evidence to that effect. It was for the assessee to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he utilisation of the loan, to prove the same by leading evidence to that effect by producing the books of account and showing the entries made therein and that the assessee has not discharged this burden either before the Commissioner of Income-tax (Appeals) or before the Tribunal. It is stated that the Tribunal has noted in para 14 of the order that in the assessment year 1997-98 the assessee had filed some details and documents on the basis of which the Commissioner of Income-tax (Appeals) accepted the claim, but has gone further to record that for the year under appeal no such details were filed. The submission of the assessee before us is that the loss was allowed by the Income-tax authorities in the assessment years 1996-97 and 1997-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year under appeal, but even if there is grievance on this score, it could not perhaps be redressed by resorting to section 254(2) of the Act. At best it may amount to an error of judgment or may even amount to the Tribunal insisting on the same evidence being formally placed on record for the year under appeal, which may appear to be ritualistic but since the Tribunal has gone on the basis of the question of burden, it is not possible for us to accept the present application. We are also unable to give a finding as to the nature of loss, keeping in view the very fair admission that the question was not raised before the Tribunal or the Income-tax authorities. 17. The assessee in the garb of application for rectification has sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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