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TMI Blog2021 (10) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Income Tax Appellate Tribunal (in short "the Tribunal‟), whereby the Miscellaneous Application i.e., M.A. No.555/Del/2019 was dismissed. 2.1. The aforementioned M.A. was filed by the assessee/petitioner seeking adjudication qua additional grounds i.e., Ground Nos. 6 and 7, which formed part of its appeal i.e., ITA No.1909/Del/2016. For the sake of convenience, the said grounds are extracted hereafter: "Ground No. 6 The Ld. AO, on facts and in law, has erred in disallowing the advances written off amounting to INR 52,53,000 under the provisions of Section 36(2) of the Act. In doing so, the Ld. AO has failed to appreciate that such advances were given during the normal course of business and their subsequent nonrecovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed its power under Section 254(2) of the Income Tax Act, 1961. 4.1. Inter alia, in this context, Mr. Sarin has placed reliance upon a full bench judgement of this Court, rendered in Lachman Dass Bhatia Hingwala (P.) Ltd. v. Assistant Commissioner of Income Tax, 2010 SCC OnLine Del 4617. In particular, reliance is placed on paragraph 27 of the said judgement. For the sake of convenience, the same is extracted hereafter: "27. In this context, we may refer with profit to the decision in Assistant Commissioner of Income-Tax v. Saurashtra Kutch Stock Exchange Ltd., [2003] 262 ITR 146 wherein a Division Bench of the Gujarat High Court was dealing with a writ petition preferred under Articles 226 and 227 of the Constitution of India. In the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified; (g) After the mistake is corrected, consequential order must follow, and the Tribunal has power to pass all necessary consequential orders." On the basis of the said conclusions, the writ court affirmed the order of recall passed by the tribunal. The aforesaid decision was challenged by the revenue before the Apex Court and their Lordships in ACIT v. Saurashtra Kutch Stock Exchange Ltd., [2008] 305 ITR 227 (SC) came to hold as follows: "The core issue, therefore, is whether non-consideration of a decision of jurisdictional court (in this case a decision of the High Court of Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the court. In Administrative Law, the scope is still wider. Technicalities apart if the court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order." In the present case, according to the assessee, the Tribunal decided the matter on October 27, 2000. Hiralal Bhagwati, [2000] 246 ITR 188 (Guj) was decided a few months prior to that decision, but it was not brought to the attention of the Tribunal. In our opinion, in the circumstances, the Tribunal has not committed any error of law or of jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issues raised before the Income Tax Appellate Tribunal (in short "the Tribunal") by way of additional ground nos. 6 and 7, in view of the fact that the appeal had been withdrawn by the petitioner. 2.4. Mr. Sharma also cannot but accept the position that, the Tribunal has the power to amend its order to rectify mistakes, which are apparent on the face of the record, in exercise of its power under sub-section (2) of Section 254 of the Income Tax Act, 1961 (in short "the Act"). 3. It is our view that, the power available to the Tribunal under subsection (2) of Section 254 of the Act is not limited to a mistake committed by the Tribunal. The amendment to the order of the Tribunal can also be made, if it is triggered on account of a mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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