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TMI Blog2021 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation of closing stock after giving opportunity of hearing to assessee and Revenue. (B) Pending admission, hearing and disposal of this petition, adinterim relief be granted and the respondent No.2 be ordered to restrain from enforcing compliance of impugned order dated 8.10.2018 passed by the Hon'ble Tribunal in Misc. Application No.249 of 2017 annexed hereto at Annexure 'G'. (C) Award the cost of this petition. (D) Grant such other and further reliefs as this Hon'ble Court deems fit." 2 The facts giving rise to this writ application may be summarised as under: 2.1 The writ applicant is a partnership firm and is being regularly assessed to tax. The firm filed its return of income on 16th September 2011 declaring the total income at Rs. 5,69,038/. The return filed by the firm was processed under Section 143(1) of the Income Tax Act, 1961 (for short, 'the Act'). The Assessing Officer passed an order under Section 143(3) of the Act on 27th March 2014. 3 We take notice of the fact that several additions were made in the assessment order passed by the Assessing Officer. The firm preferred an appeal before the CIT (Appeals). The CIT (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following: "1.1 Applicant submits that while adjudicating first two grounds Hon'ble Tribunal escaped its attention to the following material facts which were specifically drawn to its notice in the course of hearing: (a) Agricultural income was disclosed by the partners in returns furnished in the hands of HUF and copies of returns had been furnishing indicating disclosure of agricultural income. (b) Partners in turn disclosed share in HUF income in their individual returns and claimed the same as exempt u/s 10(2). (c) Income claimed exempt u/s 10(2) has not been disturbed by the Assessing Officer while making assessment. (d) Purchases from the partners and relatives were made at market rate and comparable purchase vouchers along with chart were furnished indicating no excess payment to the partners and relatives. (e) There was complete quantity tally on day to day basis. (f) There was no rejection of book results. 1.2 It is therefore, submitted that 20% disallowance has been sustained by Hon'ble Tribunal while adjudicating ground Nos. 1 and 2 without taking into account the above stated facts and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the issue from page no.5 to 11, and noticed well reasoned order of the CIT(A), and thereafter following the judgment of the Hon'ble Supreme Court in the case of CIT vs. Hindustan Zinc Ltd came to the conclusion that valuation of closing stock adopted by the assessee was purely adhoc method and without any basis. We find that the scope of subsection (2) is restricted to rectifying any mistake in the order which is apparent from record and does not extend to reviewing of the earlier order. By pointed out the alleged apparent errors, the assessee is trying to review entire order of the Tribunal, which is not permissible in law. Assessee in the present MA is making new found submissions, and trying to undo the order in guise of rectification. We do not find any merit in this application of the assessee, because the issues agitated in the MA have been examined and deliberated upon, and reached a conclusion on merit. Therefore, the same do not require a fresh look in the form of rectification, which is otherwise also not permissible in law." 9 Being dissatisfied with the aforesaid order, the writ applicant is here before this Court with the present writ application. 10 We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not sufficient if there is merely a mistake in the orders sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on the debatable point of law or undisputed question of fact, is not a mistake apparent from the record. 13 The contours of the jurisdiction under Section 254 (2) were examined by the Delhi High Court in Commissioner of Income Tax v. Income Tax Appellate Tribunal [(2005) 204 CTR Del 349]. It was held that: "6. It is evident from the above that the power available to the Tribunal is not in the nature of a review as is understood in legal parlance. The power is limited to correction of mistakes apparent from the record. What is significant is that the section envisages amendment of the original order of the Tribunal and not a total substitution thereof. That position is fairly wellsettled by two decisions of this Court in Ms. Deeksha Suri v. ITAT and Karan and Co. v. ITAT [2002] 253 ITR 131. This Court has in both these decisions held that the foundation for the exercise of the jurisdiction lies in the rectification of a mistake apparent from the record which object is ensued by amending the order passed by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the controversy may constitute an error that would call for correction in an appropriate appeal against the order. Any such error may however fall short of constituting a mistake apparent from the record within the meaning of Section 254(2) of the Act. More importantly just because a point is debatable (which is one of the reasons given by the Tribunal in the instant case) would hardly provide a justification for recalling the order and fixing the appeal for a de novo hearing. While doing so, the Tribunal has no doubt made certain observations in regard to the levy of interest under Section 158BFA being statutory in nature with no power vested in any authority or Tribunal to condone the same, but the very fact that the Tribunal has made those observations would not render valid the order of recall passed by it. The net result of the order made by the Tribunal continues to remain the same viz, the appeal has to be heard again simply because one of the issues decided by the Tribunal is debatable or the Tribunal has not noticed an earlier decision rendered by another Bench. Both these reasons were insufficient to justify the order of recall made by the Tribunal." In Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde and Ors. v. Millikarjun Bhavanappa Tirumale [1960] 1 SCR 890 this Court while spelling out the scope of the power of a High Court under Article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the recordsee Sidhramappa v. Commissioner of Incometax, Bombay [1952] 21 ITR 333(Bom). The power of the officers mentioned in Section 154 of the Incometax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record''. [See : Commissioner of Income TaxII vs. Maruti Insurance Distribution Services Ltd - [2012] 26 taxmann.com 68 (Delhi)] 14 The case on hand is quite unusual or rather we may say typical. 15 The case of the writ applicant is that a specific ground rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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