9911796707
TMI Blog2021 (1) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... ng reference of the judgment of GKN Driveshafts (India) Ltd, [ 2002 (11) TMI 7 - SUPREME COURT] it means the Tribunal was aware about the judgment cited by the assessee in its paper book, however it is not necessary that the said judgment should be used by the Tribunal in its conclusion(ratio). This miscellaneous application, ld Counsel has argued the various legal issues which were already considered by the Tribunal in its order dated 12.02.2019. When an argument and debate is made by ld Counsel for a particular issue then it would not a mistake apparent in the order of the Tribunal. The Power to rectify an order, under section 254(2) of the Act is extremely limited and it does not extend to correcting errors of law, or re-appreciating fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the grounds with respect to ground No. (l)(i), ground No. (ll)(1)(ii), ground No.(ll)(2) and ground No.(ll)(3). As a matter of fact, there is not even whisper on applicability of section 45(3) particularly when it formed the very basis of the addition. c. In the second round before the ITAT, one of the key issues before the Tribunal was that the AO did not dispose the objection raised by the appellant on the issue of section 45(3) (Page No.31 of the paper book) in the order disposing of objections (Page No.88 to 94 of the paper book). This was directed by the Hon'ble Tribunal in the first round in paragraph 3 (Page No.85 to 87 of the paper book). Despite given second chance, the AO also did not follow direction of the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that non-agricultural of 4960 kg mtrs held as stock in trade by the assessee was brought as capital contribution to the firm M/s. C. N. Builders and Developer on 18-10-2003." After putting the observed facts in clauses (a) to (d) in para (11), the Tribunal has acknowledged the AO's finding that what was introduced by the appellant into M/s. C. N. Builders was stock-in-trade and that logically it should have been taxed under the head "Profits and gains from business". If that be, the Tribunal should have allowed the appeal entirely because the position of the AO was on income from "Capital gains" and not "Profits and gains from business". f. The Hon'ble Tribunal on page 10 in last but one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, hence there is no mistake apparent in the order of the Tribunal and therefore assessee`s miscellaneous application should be dismissed. 5. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee. We find merit in the submissions of Ms. Anupama Singla, ld. Departmental Representative for the Revenue, as she has rightly pointed out that to adopt the fair market value at ₹ 900 per square meter, instead of ₹ 600 per square meter (suggested by assessee) is the matter of judicial scrutiny/decision of the Tribunal and the assessee cannot dictate the Tribunal to take a particular fair market value in its decision. Moreover, we have gone through the contents of the miscell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment should be used by the Tribunal in its conclusion(ratio). 6. We note that in this miscellaneous application, ld Counsel has argued the various legal issues which were already considered by the Tribunal in its order dated 12.02.2019. When an argument and debate is made by ld Counsel for a particular issue then it would not a mistake apparent in the order of the Tribunal. The Power to rectify an order, under section 254(2) of the Act is extremely limited and it does not extend to correcting errors of law, or re-appreciating factual findings. The plain meaning of the word 'apparent' is that it must be something which appears to be exfacie and incapable of argument and debate. The Recalling the entire order of the Tribunal woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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