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Bhavpujya Securities Pvt.Ltd v/s Asstt Commissioner of Income

    Misc Application No. 30/Ahd of 2016 in ITA.No. 1713/Ahd of 2015

    Decided On, 25 October 2018

    At, Income Tax Appellate Tribunal Ahmedabad


    For the Appellant: S.N. Divetia, AR. For the Respondent: Mudit Nagpal, Sr.DR.

Judgment Text

Rajpal Yadav, Judicial Member:

1. By this Misc. Application, the assessee is seeking recall and rectification of order of the Tribunal passed in ITANo.1713/Ahd/2015 dated 27.1.2016.

2. In the Misc. Application the assessee has pointed out certain errors committed by the Tribunal while adjudicating the issue of speculation loss. The relevant part of pleadings made in the MA read as under:

"5. The appl

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icant most respectfully submits that I order to ascertain the non-applicability of said explanation, the AO has to ascertain gross total income or the principal business of the Company. If the gross total income consist mainly of heads other than business income this Explanation will not apply. Similarly if the principal business of the Company is banking or granting of loans & advances, this Explanation will not apply. Now the perusal of the entire order of Hon'ble Tribunal shows that only the second exception has been considered whereas the first exception relating to composition of gross total income has not been considered at all. The applicant submits that for the purposes of the gross total income the test laid down by decision in case of CIT v. Darshan Securities P. Ltd ( 341 ITR 0556)(Bom.) has to be considered but the Tribunal not been considered the same. It is held that in computing the gross total income the normal provisions of the Act is applied and it is only thereafter, that it has to be determined as to whether the gross total income so computed consists mainly of income which is chargeable under the heads referred to in the Explanation. Therefore in the present case there is business loss of Rs. 14,93,823/- from share treading falling under the head "business income" whereas income from brokerage of Rs. 1,77,164/- and interest on loans & advances of Rs. 9,53,119/-. Under the circumstances, the Tribunal was not justified in coming to the conclusion that the applicant's case did not fall within the purview of the exceptions carved out in the Explanation to section-73."

3. With the assistance of the ld. representatives, we have gone through the impugned order. Before us, the ld. counsel for the assessee made submissions in line with pleadings contained in the MA. He further submitted that the mistakes pointed out in the MA are apparent on the face of the order, and therefore, impugned order of the Tribunal cited supra deserves to be rectified. The ld.DR on the other hand submitted that all issues pointed out by the assessee in the MA have already been dealt with by the Tribunal in its detailed order, and therefore, no further adjudication is required. He submitted that the assessee under the garb of MA is attempting to review the order which is not permissible in law. Once the Tribunal decided the issue on merit and passed order, it becomes final and Tribunal cannot sit on for reviewing its order.

4. We find that the power of rectification under section 254 of the Income Tax Act can be exercised only when the mistake, which is sought to be rectified, is an obvious patent mistake and apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. We find that the alleged error pointed out by the assessee while considering the issue in dispute, the Tribunal had detailed discussion on legal as well as on factual aspects and no fresh exercise is required. We find that the scope of sub-section (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. It is settled position of law that reconsidering the findings recorded, or reconsidering application of relevant provisions of law to facts of case, such a course is not permissible under section 254(2). Therefore, we are of the view that by pointing out the alleged apparent errors, relying on new found and repeated submissions, the assessee is trying to review and revisit entire order of the Tribunal, which is not permissible in law. We do not find any merit in this application of the assessee, because the issues agitated in the MA have already been examined and deliberated upon, and reached a conclusion on merit. MA, therefore, fails.

5. In the result, Misc. Application of the assessee is dismissed.

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