The Income Tax Officer, Abohar V. M/s J.B. Resorts, Fazilka

MA 13/ASR/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5499 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 01-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Rectification of order; Deemed to accrue or arise in india
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEM BER AND SH.N. K. CHOUDHRY, JUDICIAL MEMBER M. A. NO. 13/(ASR)/2017 (ARISING OUT OF I.T.A. NO. 488/(ASR)/2015) ASSESSMENT YEAR: 2011-12 PAN: AAHFJ6707G INCOME TAX OFFICER, WARD- II (4), ABOHAR. VS. M/S. J. B. RESORTS, F. F. ROAD, FAZILKA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (D.R. ) RESPONDENT BY: SH. SUDHIR SEHGAL DATE OF HEARING: 25.08.2017 DATE OF PRONOU NCEMENT: 30.11.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY RE VENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 19.05.2016. 2. AT THE OUTSET, THE LD. DR SUBMITTED THAT ASSESS EE HAD SURRENDERED AN AMOUNT OF RS.10 LACS AS ADDITIONAL I NCOME DURING THE COURSE OF SURVEY U/S 133A OF THE ACT AND HE HAD FAI LED TO DISCLOSE THE SOURCE OF SUCH INCOME AND THEREFORE ASSESSING OFFIC ER HAD MADE THE ADDITION U/S 69B OF THE ACT AND HON'BLE TRIBUNAL HA S DELETED THE SAME BY FOLLOWING THE CASE LAW OF GAURISH STEELS PVT. LT D. VS. ACIT, 43 ITR 414. HE SUBMITTED THAT HON'BLE PUNJAB & HARYANA HIG H COURT IN THE CASE OF KHUSHI RAM & SONS FOODS PVT. LTD. HAD HELD THAT UNLESS THE ASSESSEE PROVES THAT THE SURRENDERED INCOME WAS FRO M HIS BUSINESS INCOME, THERE CANNOT BE ANY PRESUMPTION THAT THE SA ME WAS DERIVED MA NO. 13 (ASR)/2017 (ARISING OUT OF I.T.A. NO.488/(ASR)/2015 ASST. YEAR:2011-12 2 FROM THE BUSINESS. THE LD. DR SUBMITTED THAT THIS J UDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT HAS BEEN PRONOU NCED AFTER THE DATE OF THE PRONOUNCEMENT OF DECISION OF TRIBUNAL A ND THEREFORE THERE IS A MISTAKE OF LAW APPARENT FROM RECORD WITHIN THE ME ANING OF SECTION 254(2) OF THE INCOME TAX ACT AND WHICH NEEDS TO BE RECTIFIED. 3. THE LD. AR ON THE OTHER HAND SUBMITTED THAT HON' BLE TRIBUNAL HAD PASSED ORDER AFTER RECORDING FACTS AND CIRCUMSTANCE S OF THE CASE AND AFTER HOLDING THAT THE ASSESSEE WAS CARRYING ON MAR RIAGE PALACE WHICH WAS STARTED BEFORE THE DATE OF SURVEY AND A COPY OF LEDGER ACCOUNT SHOWING THE INCOME FROM RENT OF MARRIAGE PALACE WAS ALSO FILED AND THIS INCOME HAD BEEN DECLARED AS BUSINESS INCOME. THEREF ORE HON'BLE TRIBUNAL HAD HELD THAT THE SOURCE OF SURRENDERED IN COME WAS FROM BUSINESS OF THE ASSESSEE WHEREAS IN THE CASE LAW RE LIED ON BY THE LD. DR IN THE CASE OF KHUSHI RAM & SONS FOODS PVT. LTD, TH E ASSESSEE WAS NOT ABLE TO PROVE THAT THE SURRENDERED INCOME WAS EARNE D FROM BUSINESS. THE LD. AR SUBMITTED THAT THE HON'BLE TRIBUNAL HAS RECORDING ITS FINDINGS FROM PARA 8 ONWARDS WHICH ARE VERY CLEAR A ND SPECIFIC TO THE ISSUE AND THEREFORE ANY CONTRARY FINDING IN THIS RE GARD WILL AMOUNT TO REVIEW OF ITS OWN ORDER WHICH IS NOT PERMITTED UNDE R THE PROVISIONS. RELIANCE IN THIS RESPECT WAS PLACED ON THE FOLLOWIN G CASE LAWS: 1 . COMMISSIONER OF INCOME TAX V/S PEARL WOOLLEN MILLS [2010] 191 TAXMAN 286 P&H-HC 2. COMMISSIONER OF INCOME TAX V/S HERO CYCLES (P) LTD 94 TAXMAN 271 (SC) MA NO. 13 (ASR)/2017 (ARISING OUT OF I.T.A. NO.488/(ASR)/2015 ASST. YEAR:2011-12 3 3. PREM COLONIZERS PVT. LTD. V/S INCOME TAX OFFICER MA NO.130/DEL/2012 IN ITA NO.4753/DEL/2010, ITAT, DELH I BENCH AT NEW DELHI 4. COMMISSIONER OF INCOME TAX VS VARDHMAN SPINNING 139 CTR 0322 P&H HC 5. M/S VIVEKANAND SOCIETY OF EDUCATION AND RESEARCH VS. INCOME TAX OFFICER M.A NO. 90 ASR/2014 ITA NO. 305/ASR/2010 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT HON'BLE TRI BUNAL HAS PASSED THE ORDER DATED 19.05.2016 AFTER RECORDING ITS DETAILED FINDINGS FROM PARA 8 ONWARDS AND WHEREIN IT HAS HELD THAT THE ASSESSEE W AS EARNING INCOME FROM BUSINESS. THE HON'BLE TRIBUNAL HAS ALSO HELD T HAT THE DATE OF STARTING OF BUSINESS, WAS BEFORE THE DATE OF SURVEY . FOR THE SAKE OF COMPLETENESS, THE FINDINGS OF THE HON'BLE TRIBUNAL FROM PARA 8 ONWARDS ARE REPRODUCED BELOW: 8. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. APROPOS THE CONTENTION OF THE LD. DR THA T GAURISH STEELS P. LIMITED (SUPRA), IS PER INCURIAM KIM PHARMA P. LI MITED (SUPRA). THESE ARE ONE AT ONE WITH THE LD. DR. IN GAURISH STEELS P. L IMITED (SUPRA), THE TRIBUNAL HAS TAKEN NOTE OF THE FACT THAT IN KIM PH ARMA P. LIMITED (SUPRA), THE ONLY ISSUE WAS TAXABILITY OF THE CASH SURRENDER ED DURING THE COURSE OF SURVEY, WHICH WAS ALSO GIVEN IN GAURISH STEELS P. LIMITED (SUPRA). THE TRIBUNAL HELD THAT THE OTHER AMOUNT SURRENDERED, O N ACCOUNT F DISCREPANCY IN THE COST OF CONSTRUCTION, DISCREPANC Y IN STOCK AND DISCREPANCY IN ADVANCES AND RECEIVABLE, HAS TO BE C ONSIDERED AS BUSINESS INCOME, WHEREAS THE CASH SURRENDERED WAS NOT TO BE SO CONSIDERED. IT HAS NOT BEEN SHOWN AS TO HOW THIS ACTION OF THE TRIBUNA L IN GAURISH STEELS P. LIMITED (SUPRA), IS AT VARIANCE WITH KIM PHARMA P . LTD. (SUPRA). ACCORDINGLY, THIS ARGUMENT OF THE LD. DR IS REJECTE D. 9. NOW COMING TO THE FACTS OF THE PRESENT CASE, IN THE SURVEY CONDUCTED, THE ASSESSEE OFFERED RS.10 LAKHS AS ADDI TIONAL INCOME. THE QUESTION AS TO WHETHER THIS CASH IS RELATABLE TO TH E BUSINESS OF THE ASSESSEE, IN ACCORDANCE WITH KIM PHARMA P. LIMITED (SUPRA) AND IF SO, WHETHER IT IS NOT A BUSINESS INCOME. THE SURVEY IN THIS CASE WAS CONDUCTED ON 24.01.2011. THE ASSESSEE MAINTAINS THA T ITS MARRIAGE PALACE WAS STARTED BEING LET OUT FROM 10.10.2010. A COPY OF THE LEDGER ACCOUNT CONTAINING THE BUILDING ACCOUNT HAS BEEN PL ACED ON RECORD IN THE ASSESSMENT PROCEEDINGS. THE SAME HAS BEEN FILED BEF ORE US ALSO. THIS IS ALSO FOR THE PERIOD FROM 01.04.2010 TO 31.03.2011. THE OPENING BALANCE THEREOF STANDS AT RS.34,03,578/-. AS ON 24.01.2011, THE AMOUNT DEBITED ON ACCOUNT OF BUILDING IS RS. 10,00,000/-. AS PER L EDGER ACCOUNT, THE MA NO. 13 (ASR)/2017 (ARISING OUT OF I.T.A. NO.488/(ASR)/2015 ASST. YEAR:2011-12 4 PALACE INCOME FOR THE PERIOD 01.04.2010 TO 31.03.20 11 HAS BEEN SHOWN AT RS.4,65,000/-. NOW, THE AO ASSESSED THE AMOUNT OF R S.4,65,000/- AS BUSINESS INCOME. THIS INCLUDED THE RECEIPTS AMOUNTI NG TO RS.3,44,000/- FOR THE PERIOD FROM 10.10.2010 TO 16.01.2011, AS AC COUNTED FOR IN THE PALACE INCOME OF THE ASSESSEE IN THE LEDGER. THIS I NCOME HAS BEEN SHOWN ON ACCOUNT OF LETTING OUT OF THE MARRIAGE PALACE FO R THE PERIOD FROM 10.10.2010 TO 16.01.2011. AS SUCH, AS RIGHTLY CONTE NDED. THE AO HAS ACCEPTED THIS INCOME OF THE ASSESSEE AS BUSINESS IN COME. THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE FOR THE PERIOD FROM 04.02.2 011 TO 31.03.2011 SHOWN PALACE INCOME BY RS.4,65,000/-, THE DETAILS O F WHICH ARE, AS ABOVE. THEREFORE, THE GRIEVANCE OF THE ASSESSEE IN THIS RE GARD IS CORRECT AND THE SAME IS ACCEPTED. 10. IN KEEPING WITH KIM PHARMA P. LIMITED (SUPRA) , AS RELIED ON IN GAURISH STEELS P. LIMITED (SUPRA), THIS INCOME HA S BEEN CONSIDERED AS THE ASSESSEES BUSINESS INCOME AND NOT AS DEEMED INCOME U/S 69A OF THE ACT. AS SUCH, THE BUSINESS LOSSES INCURRED BY THE ASSES SEE DURING THE YEAR CAN BE SET OFF AGAINST THE INCOME SURRENDERED. AS P ER THE REQUIREMENT OF SECTION 71 OF THE ACT, THE AO IS DIRECTED TO ACT AC CORDINGLY. THUS, GROUND NOS. 1 TO 3 ARE ACCEPTED. 11. GROUND NO.4 IS CONSEQUENTIAL. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. THE CASE LAW RELIED ON BY LD. DR IS NOT APPLICABLE IN THE PRESENT CASE AS IN THAT CASE LAW, THE ASSESSEE WAS NOT ABLE TO DEMONSTRATE THAT THE SURRENDERED INCOME WAS FROM BUSINESS WHEREAS IN THE PRESENT CASE, THE ASSESSEE HAD CLEARLY ESTABLISHED THAT THE SURRE NDERED INCOME WAS FROM BUSINESS INCOME. THE CASE LAWS RELIED ON BY LD . AR ALSO SUPPORTS THE CONTENTION OF ASSESSEE THAT HON'BLE TRIBUNAL CA NNOT REVIEW ITS OWN ORDER AND UNDER THE PROVISIONS OF SECTION 254(2), I T HAS VERY LIMITED POWER TO RECTIFY MISTAKE WHICH IS APPARENT FROM REC ORD. A BARE LOOK AT SECTION 254(2) OF THE ACT, WHICH DE ALS WITH RECTIFICATION, MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT FROM THE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APP LICATION OF SECTION 254(2), A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COVER CASES WHERE A MA NO. 13 (ASR)/2017 (ARISING OUT OF I.T.A. NO.488/(ASR)/2015 ASST. YEAR:2011-12 5 REVISION OR REVIEW OF THE ORDER IS INTENDED. MISTA KE MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERRO R IN INTERPRETING, IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONC EPTION. APPARENT MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN, A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECTI ON 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF TH E TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, THE AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGI NALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBL E UNDER THE PROVISIONS OF SECTION 254(2). FURTHER, WHERE AN ERR OR IS FAR FROM SELF EVIDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS N O DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 25 4(2) IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAN D, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATE D PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED BY TH E SUPREME COURT IN MASTER CONSTRUCTION CO. (P) LTD. V. STATE OF ORISSA [1966] 17 STC 360, AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD S HOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELA BORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO E XPRESSED IN SATYANARAYAN LAXMINARAYAN HEDGE V. MALLIKARJUN BHAV ANAPPA TIRUMALE AIR 1960 SC 137. IT IS TO BE NOTED THAT THE LANGUAG E USED IN ORDER 47, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 IS DIFF ERENT FROM THE LANGUAGE USED IN SECTION 254(2) OF THE ACT. POWER IS GIVEN T O VARIOUS AUTHORITIES TO MA NO. 13 (ASR)/2017 (ARISING OUT OF I.T.A. NO.488/(ASR)/2015 ASST. YEAR:2011-12 6 RECTIFY ANY MISTAKE APPARENT FROM THE RECORD IS U NDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PET ITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECORD. MISTAKE IS AN ORDINARY WORD, BUT IN TAXATION LAWS, IT HAS A SPECIAL SIGNIFICANCE . IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WIT HIN ITS PURVIEW. IT COMPREHENDS ERRORS WHICH, AFTER A JUDICIOUS PROBE I NTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE, ARE DISCERNED. THE WORD MISTAKE IS INHERENTLY INDEFINITE IN SCOPE, AS WHAT MAY BE A MI STAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WH ICH A DULY AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE R ECORD. IN ORDER TO ATTRACT THE POWER TO RECTIFY UNDER SECTION 254(2) I T IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO B E RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM T HE RECORD. A DECISION ON THE DEBATABLE POINT OF LAW OR UNDISPUTED QUESTIO N OF FACT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEA RS TO BE SO EX FACIE AND IT IS IN CAPABLE OF ARGUMENT OR DEBATE. IT IS T HEREFORE, FOLLOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAI LURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNO T BE CORRECTED BY WAY OF RECTIFICATION. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KA RAN CHAND THAPAR & BR. P. LTD., 176 ITR 535 HAS HELD AS UNDER : IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER S OME INCIDENTAL FACT MA NO. 13 (ASR)/2017 (ARISING OUT OF I.T.A. NO.488/(ASR)/2015 ASST. YEAR:2011-12 7 WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JU DGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT M ATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH , UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE . IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CU MULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOW S THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE D ECISION OF THE TRIBUNAL. SIMILARLY, THE HON'BLE MADRAS HIGH COURT DECISIONS IN T.C.(A) NO. 156 OF 2006 DATED 21.08.2007 IN THE CASE OF CIT VS. TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. WHEREIN THE HON'BLE HIGH COURT HELD AS UNDER: THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHE N THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING ITS MIND AGAIN ST THE ASSESSEE, THE SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF T HE ACT. THERE WAS NO NECESSITY WHATSOEVER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER THE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL, WE COULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER AS TO HOW T HE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASONS. THERE IS NO APPARENT ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHOR ITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PETITION IN T HE NAKE OF REVIEWING ITS OWN ORDER. IN THE PRESENT CASE, IN THE GUISE OF RECTIFICATION , THE TRIBUNAL REVIEWED ITS EARLIER ORDER AND ALLOWED THE MISCELLANEOUS PETITIO N WHICH IS NOT IN ACCORDANCE WITH LAW. SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DO ING SO, WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAK ES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) IS LIMITED AND NARROW. IT IS RESTRIC TED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE OR DER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORDER IS SNOT PERMISSIBLE UNDER SE C. 254(2) OF THE ACT. ONLY GLARING AND ANY MISTAKE APPARENT ON THE FACE OF THE RECORD ALONE CAN BE RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. MA NO. 13 (ASR)/2017 (ARISING OUT OF I.T.A. NO.488/(ASR)/2015 ASST. YEAR:2011-12 8 FURTHER, THE HON'BLE DELHI HIGH COURT JUDGMENT ON T HE SCOPE OF RECTIFICATION U/S 254(2) AS REPORTED IN THE CASE OF RAS BIHARI BANSAL VS. CIT 293 ITR 365 HAS HELD AS UNDER: SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT M ISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATI ON UNDER SECTION 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THE SECTION. THEREFORE, IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE CASE, AND IN THE LIGHT OF RATIO OF THE DECISIONS CITED AND DI SCUSSION AS ABOVE, WE DO NOT FIND ANY SUBSTANCE IN THE APPLICATION OF REVENU E AND DISMISS THE SAME BEING DEVOID OF ANY MERITS. 6. IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICAT ION FILED BY REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 30/11/2017 GP/SR./PS COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER