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2004 DIGILAW 1000 (RAJ)

P. C. Moondra v. Commissioner of Income Tax

2004-07-20

SHASHI KANT SHARMA, Y.R.MEENA

body2004
Judgment 1. The appeal has been admitted in terms of the following questions: “1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that an oversight of the fact cannot constitute a mistake apparent from record under Section 254(2) of the Act ?“ “2. Whether, on the facts and in the circumstances of the case, the Tribunal has rightly refused to allow benefit of telescoping to the appellant while passing the impugned order dt. 16th Oct., 2000 passed under Section 254(2) of the Act, irrespective of the fact that mistake of law may be rectified at any stage of the proceedings ?“ 2. In the appeal, order of the Tribunal, dt. 7th April, 2000, in para 23, the Tribunal has decided the last issue regarding telescoping, holding that since we have not sustained the additions in respect of assets expenditure, this ground requires no discussion. 3. The case of the assessee in miscellaneous application was that as Tribunal has committed mistake which is apparent mistake, by not deciding the issue regarding telescoping in para 23 of its order. The Tribunal has dismissed the miscellaneous application, holding as there was no apparent mistake in the order, therefore, the miscellaneous application preferred by the assessee is dismissed. 4. Mr. Kasliwal, learned counsel for the appellant, submits that he has raised the issue regarding addition in telescoping, but that has not been considered and discussed, therefore, there is apparent mistake in the order and the miscellaneous application has wrongly been rejected. 5. Mr. Mathur, learned counsel for the Department, submits that when there is no apparent mistake in the appeal order dt. 7th April, 2000, no correction can be carried out under Section 254(2) of the Act of 1961. 6. Some additions were made on account of business income, that comes to Rs. 1,80,000. That has been reduced by the CIT(A) to Rs. 75,000. The Tribunal in para 23 of its appeal order held that as no additions have been sustained in respect of assets expenditure, therefore, this ground i.e., addition on account of telescoping requires no discussion. If we read para 23 of the order of Tribunal with the decision of CIT(A) on the issue, the admitted facts are that no addition has been made on account of investment in the assets. If we read para 23 of the order of Tribunal with the decision of CIT(A) on the issue, the admitted facts are that no addition has been made on account of investment in the assets. The result will be the same that when no addition has been made on account of investment in assets, the addition sustained by the CIT(A) on account of business income, that has been sustained by the Tribunal and there is no apparent mistake in the impugned order of the Tribunal, which can be corrected in miscellaneous application. As there is no apparent mistake in appeal order, Tribunal has rightly dismissed the application under Section 254(2) of the Act, 1961. The appeal stands dismissed.