M/s. Spectra Shares & Scripts (P) Ltd, Hyderabad V. DCIT, Circle-3(2), Hyderabad

MA 193/HYD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7772 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 08-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS; T DIWAKAR PRASAD
• Keywords: Business income; Rectification of order; Charitable institution; Principle of natural justice; Rule of consistency; Reasonable cause; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO.193/HYD/2011 (IN ITA NO.748/HYD/2011) ASST. YEAR: 2006-07 M/S. SPECTRA SHARES & SCRIPS, HYDERABAD (PANAABCV4969M) V. DCIT, CENTRAL CIR-3(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY: SRI VIJAY MEHTA RESPONDENT BY: S/SHRI V. SRINIVAS & T. DIWAKAR PRASAD DATE OF HEARING: 20.01.2012 DATE OF PRONOUNCEMENT: 16.03.2012 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING THE TRIBUNAL TO RECALL ITS ORDER PASSED IN ITA NO.748/H YD/2011 AND SA NO.50/HYD/2011 DATED 5 TH AUGUST, 2011 PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIRST MISTAKE APPARENT FROM RECORD IS NON-DISPOSAL OF GROUND NOS. 2 AND 3. THE COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE ORDER OF THE TRIBUNAL CONTAINS CERTAIN MISTAKES WHI CH ARE APPARENT FROM THE RECORD AND, HENCE, THE ORDER OF T HE TRIBUNAL MAY BE RECALLED AND/OR MODIFIED SUITABLY. IT WAS SU BMITTED BEFORE THE TRIBUNAL THAT DETAILED SUBMISSIONS WERE MADE TO THE EFFECT THAT THE ID. CIT WAS NOT JUSTIFIED IN ISSUIN G THE REVISED SHOW CAUSE NOTICE DATED 21.02.2011 WHICH WAS COMPLE TELY DIFFERENT FROM THE ORIGINAL NOTICE DATED 29.01.2010 . ELABORATE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 2 ARGUMENTS WERE MADE EVEN IN THE WRITTEN SUBMISSIONS FILED BEFORE THE TRIBUNAL. THE COUNSEL INVITED ATTENTION OF THE BENCH TO PARAGRAPHS 12 AND 13 OF THE WRITTEN SUBMISSIONS. NOT DECIDING THE GROUNDS OF APPEAL RAISED BEFORE THE TR IBUNAL IS UNDOUBTEDLY A MISTAKE APPARENT ON RECORD AND NEEDS TO BE RECTIFIED. ON MERITS THE LEARNED COUNSEL FOR THE A SSESSEE RELIED ON THE FOLLOWING ORDERS: (I) PURANLAL AGRAWAL (HUF) V. CIT [131 TTJ 78 (NAG)]; A ND (II) S.S.I. LIMITED V. DCIT [85 TTJ 1049 (CHENNAI)] 3. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED WITH REGARD TO THE 2 ND MISTAKE THAT ORDER U/S. 263 UPHELD ON THE GROUND WHICH WAS NOT MENTIONED IN SHOW CAUSE NOTICE U/S. 263 OF THE ACT. IT IS EVIDENT FROM EVEN THE CURSORY LO OK AT THE ORDER OF THE TRIBUNAL THAT THE REVISION U/ S. 263 HAS BEE N UPHELD ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT APPLI ED HIS MIND/ NOT CAUSED ENQUIRY/NOT EXAMINED THE ISSUE WHILE PAS SING THE ORDER U/ S. 143(3) OF THE ACT. THIS IS EVIDENT FRO M PARAGRAPHS 34 TO 41 OF THE ORDER OF THE TRIBUNAL. HOWEVER, ON PERUSAL OF THE SHOW CAUSE NOTICES DATED 29.01.2010 AND 21.02.2011, IT IS EVIDENT THAT THIS IS NOT AT ALL THE BASIS FOR INVOC ATION OF THE REVISIONARY JURISDICTION BY THE CIT. SINCE THE CIT CANNOT PASS AN ORDER BASED ON A GROUND OTHER THAN THE GROUND ME NTIONED IN THE SHOW CAUSE NOTICE, CERTAINLY THE TRIBUNAL CANNO T UPHOLD THE ORDER U/ S. 263 ON SUCH NON-EXISTENT GROUND. THIS I S CERTAINLY A MISTAKE APPARENT FROM THE RECORD. THIS PROPOSITION IS SUPPORTED BY THE JUDGMENT OF THE PUNJAB AND HARYANA HIGH COUR T IN THE CASE OF CIT V. JAGADHRI ELECTRIC SUPPLY AND INDUSTR IAL CO. (140 ITR 490) AND THAT OF THE CALCUTTA HIGH COURT IN THE CASE OF CIT V. HOWRAH FLOUR MILLS LTD. (236 ITR 156). BESIDES, THE CO- ORDINATE BENCHES OF THE TRIBUNAL HAVE ALSO TAKEN TH E SAME VIEW VIDE S.S.I. LIMITED V. DCIT [85 TTJ 1049 (CHENNAI)] AND MAXPAK M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 3 INVESTMENT LTD. V. ACIT [13 SOT 67 (DEL)]. THE COU NSEL FOR THE ASSESSEE SUBMITTED THAT EVEN IN THE ORDER PASSED BY THE CIT U/S. 263 OF THE ACT, THERE IS NO SUCH ALLEGATION THAT T HE ASSESSING OFFICER HAS NOT APPLIED HIS MIND/NOT MADE PROPER ENQUIRY/NOT EXAMINED THE CASE PROPERLY. IN SUCH CIRCUMSTANCES, THE TRIBUNAL WAS NOT JUSTIFIED IN AR RIVING AT THE CONCLUSION, FOR THE FIRST TIME, THAT THE REVISION I S JUSTIFIED DUE TO NON-APPLICATION OF MIND BY THE ASSESSING OFFICER. 4. THE THIRD MISTAKE POINTED OUT BY THE LEARNED COUNSE L FOR THE ASSESSEE WITH REGARD TO UPHOLDING CIT'S ACTION IN DECIDING THE ISSUE ON MERIT INSTEAD OF REMITTING THE MATTER TO THE FILE OF THE ASSESSING OFFICER. HE SUBMITTED THAT ASSUMING FOR A MOMENT THAT THE ASSESSING OFFICER HAS NOT APPLIED H IS MIND AND A LAWFUL CONCLUSION TO THAT EFFECT CAN BE ARRIVED A T, STILL THE ACTION OF THE CIT IN DECIDING THE ISSUE FINALLY, IN STEAD OF REMITTING THE MATTER BACK TO THE FILE OF THE ASSESS ING OFFICER, IS UNSUSTAINABLE. THE HON'BLE TRIBUNAL HAS ERRED IN UP HOLDING SUCH ACTION OF THE CIT. IT IS SUBMITTED THAT IN A CASE WHERE THE ASSESSING OFFICER HAS NOT APPLIED HIS MIND OR HAS N OT TAKEN ANY CONSCIOUS DECISION, THE CORRECT COURSE OF ACTION FO R THE CIT IS TO REMAND THE MATTER BACK TO THE ASSESSING OFFICER. TH E CIT, UNDER SUCH CIRCUMSTANCES, WOULD NOT BE JUSTIFIED IN EITHE R DECIDING THE MATTER HIMSELF OR DIRECTING THE ASSESSING OFFIC ER TO COMPLETE THE ASSESSMENT IN A PARTICULAR MANNER. FOR THE ABO VE PROPOSITION, THE LEARNED COUNSEL FOR THE ASSESSEE P LACED RELIANCE ON THE DECISION OF MADRAS HIGH COURT IN THE CASE OF CIT V. SMT. TASNEEM Z. MADRASWALA (324 ITR 67). FURTHER, RELI ANCE IS PLACED UPON THE ORDER OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF M/S. VNS MAKRO TECHNOLOGIES P. LTD. V. DCIT IN ITA NO. 870/HYD/2011 DATED 05.08.2011. THE COUNSEL SUBMITTED THAT RELIANCE CAN BE PLACED UPON THE JUDI CIAL M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 4 PRONOUNCEMENTS EVEN IN 254(2) PROCEEDINGS AS THE LE GAL POSITION EXISTING ON THE DATE OF ORDER IS ALWAYS BI NDING ON THE TRIBUNAL IRRESPECTIVE OF THE FACT WHETHER SUCH PRON OUNCEMENTS WERE BROUGHT TO THE NOTICE OF THE TRIBUNAL OR NOT. IN SUPPORT OF THIS PROPOSITION, HE PLACED RELIANCE ON THE DECISIO N OF THE HON'BLE KERALA HIGH COURT IN THE CASE OF KERALA CHE MICALS AND PROTEINS LTD. V. CIT (235 ITR 467) AND ORDER OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SWAN MILLS LTD . V. ADDL. CIT (6 SOT 420). 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE 4 TH MISTAKE IS WITH REGARD TO CONSISTENCY THAT HAS NOT BEEN FOLLOWED. HE SUBMITTED THAT DETAILED ARGUMENTS WER E ADVANCED BEFORE THE TRIBUNAL AS REGARDS THE CONSISTENCY TO B E FOLLOWED IN THE INCOME-TAX PROCEEDINGS. THIS HAS BEEN REJECTED BY THE TRIBUNAL IN PARA 42 OF THE ORDER BY OBSERVING THAT THE PRINCIPLES OF RES JUDICATA ARE NOT APPLICABLE. THE TRIBUNAL HAS FURTHER OBSERVED IN THE SAID PARA THAT IF THERE IS A CHANGE IN THE FACTS AND CIRCUMSTANCES, A DIFFERENT VIEW IS REQUIRED TO BE TAKEN. WHILE OBSERVING SO, THE TRIBUNAL HAS IGNORED THE FO LLOWING VITAL FACTS: I) IN ALL THE EARLIER YEARS AS WELL AS THE SUBSEQUENT YEAR, THE STAND OF THE ASSESSEE HAS BEEN ACCEPTED BY THE DEPARTMENT IN SCRUTINY PROCEEDINGS. II) DURING THE YEAR UNDER CONSIDERATION, THERE IS NO CH ANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. NO SUC H 'CHANGE' HAS BEEN DISCUSSED BY THE TRIBUNAL NOR THE SAME IS TO BE FOUND IN THE ORDER OF THE CIT. III) IT HAS BEEN CATEGORICALLY EXPLAINED THAT THE FACTS ARE IDENTICAL AND HENCE, DIFFERENT VIEW IS NOT REQUIRED TO BE TAKEN. IV) IT WAS SPECIFICALLY POINTED OUT IN PARA 5 OF THE WR ITTEN M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 5 SUBMISSIONS THAT IN THE EARLIER YEARS THE ASSESSING OFFICER HAD SPECIFICALLY RAISED THE ABOVE QUERY AND ACCEPTE D THE STAND OF THE ASSESSEE AFTER SATISFYING HIMSELF WITH THE REPLY OF THE ASSESSEE. V) THE TRIBUNAL HAS IGNORED THE DIRECT DECISIONS AND V ARIOUS ORDERS OF CO-ORDINATE BENCHES ON THE PRINCIPLE OF CONSISTENCY/ RES JUDICATA RELIED UPON BY THE ASSESSEE. FOR HIS PROPOSITION HE RELIED ON THE FOLLOWING DECISION S: CIT V. GOPAL PUROHIT [336 ITR 287 (BORN)] [SLP DISM ISSED VIDE 334 ITR (ST) 308]; AND SHANTILAL M. JAIN V. ACIT FOR A.Y. 2006-07 IN ITA N O. 2690/MUM/2010 DATED 27.04.2011. 6. THE COUNSEL FOR THE ASSESSEE SUBMITTED THAT MISTAKE NO. 5 IS WITH REGARD TO TREATMENT OF INVESTMENT MADE IN THE EARLIER YEARS AS STOCK-IN-TRADE BY THE DEPARTMENT HE SUB MITTED THAT WITHOUT PREJUDICE TO THE ABOVE THAT, IN ANY CASE, T HE TRIBUNAL HAD FALLEN IN ERROR IN HOLDING THAT THE LONG-TERM C APITAL GAIN IS A BUSINESS INCOME. THIS IS DUE TO THE FACT THAT THE S HARES AND UNITS, THE SUBJECT-MATTER OF DISPUTE, WERE PURCHASE D IN THE EARLIER YEARS, REFLECTED AS INVESTMENT IN BALANCE S HEET, AND ACCEPTED BY THE DEPARTMENT IN THE SCRUTINY ASSESSME NT PROCEEDINGS. NOW, WHEN THE SAME ARE SOLD, THEY CAN NOT BE TREATED AS STOCK-IN-TRADE. HE PLACED RELIANCE ON T HE FOLLOWING DECISIONS: I) ACIT V. SHRI MANISH D. DESAI FOR A.Y. 2006-07 IN I TA NO. 3661/MUM/2010 DATED 27.05.2011; II) M/S. CRYSTAL IMPEX LTD. V. DC IT FOR A.Y. 2006-07 IN ITA NO. 237/MUM/2010 DATED 15.07.2011; AND III) M/S. KAMLESH REAL ESTATES PVT. LD. V. ACIT (OSD-2) IN ITA NO. 1451/MUM/2010 DATED 20.04.2011. M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 6 7. ACCORDING TO LD. AR THE SIXTH MISTAKE APPARENT FROM RECORD IS THAT THERE ARE OTHER APPARENT MISTAKES CO NCERNING THE MERITS OF THE ISSUE WHICH ARE AS UNDER: I) IN PARAGRAPH NO. 2 OF THE TRIBUNAL'S ORDER, IT HAS BEEN OBSERVED THAT THE 'ASSESSEE-COMPANY IS CARRYING ON BUSINESS OF DEALING IN SHARES AND MUTUAL FUND UNITS '. HE SUBMITTED THAT THIS IS CERTAINLY NOT THE ADMITTED F ACT AND HENCE, THIS COULD NOT COME IN THE PREFACE OF THE OR DER. THUS, THE HON'BLE TRIBUNAL HAS PROCEEDED ON INCORRE CT ASSUMPTION OF THE FACT RIGHT FROM INCEPTION. II) IN PARAGRAPH NO. 44 OF THE ORDER, THE TRIBUNAL HAS MADE SOME OBSERVATIONS REGARDING THE SHARES OF HINDUSTAN COCOA COLA BEVERAGE LTD. AND THOSE OF THE SUBSIDIAR Y US COMPANY. HE SUBMITTED THAT THE TRIBUNAL HAS COMPLETELY IGNORED THE ASSESSEE'S SUBMISSION ON THI S ISSUE WHICH ARE CONTAINED IN PARAGRAPHS 18 TO 20 OF THE WRITTEN SUBMISSIONS. III) FURTHER, IN THE SAME PARAGRAPH, THE TRIBUNAL HAD REPRODUCED THE DATES OF PURCHASE AND SALE OF SHARES OF ANDHRA SUGARS LTD.. HERE AGAIN, THE TRIBUNAL HAD COMPLETELY IGNORED THE DETAILED SUBMISSIONS MADE BY THE ASSESSEE VIDE PARA 21 OF THE WRITTEN SUBMISSION. A PART FROM THE ABOVE, THE WHOLE COMPARISON OF PURCHASE AN D SALE OF SHARES DURING THE YEAR IS MISNOMER. IF THE COMPARISON OF PURCHASE AND SALE OF SHARES WITHIN FE W DAYS WOULD HAVE BEEN CORRECT, THE RESULTANT GAIN WO ULD HAVE BEEN ASSESSED AS SHORT-TERM CAPITAL GAIN. HOWE VER, THAT IS NOBODY'S CASE. THE SHARES SOLD ARE OUT OF T HE EARLIER ACQUISITION, THE PROFIT WHEREFROM HAS BEEN OFFERED AND ASSESSED AS LONG-TERM CAPITAL GAIN. IN LIGHT OF THIS, THE WHOLE DISCUSSION IS IRRELEVANT AND MISLEADING. IV) IN PARAGRAPHS 47 AND 48, THE TRIBUNAL HAS CONSIDERE D THE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 7 VOLUME AND FREQUENCY OF THE TRANSACTIONS IN MUTUAL FUND. IT IS CLARIFIED THAT THE FIGURES GIVEN ON PAGE NO. 38 OF THE TRIBUNAL'S ORDER ARE INCORRECT AND MISLEADING. THE CORRECT FIGURES ARE TO BE FOUND ON PAGE NO. 4 OF THE MISCEL LANEOUS APPLICATION DATED 08.09.2011 FILED BEFORE THE TRIBU NAL. IT MAY BE CLARIFIED THAT THE COMPLETE PARTICULARS OF T HE PURCHASE AND SALE OF UNITS ARE ALREADY AVAILABLE ON PAGE NOS. 57 TO 64 OF THE PAPER BOOK NO. 1 FILED BEFORE THE TRIBUNAL DURING THE COURSE OF THE HEARING. V) IN ANY CASE, THE FINAL CONCLUSION IN PARA 51 OF THE TRIBUNAL'S ORDER IS IN RESPECT OF THE TRANSACTIONS OF SHARES AND, HENCE, THE DISPUTE QUA UNITS HAS REMAINED TO B E DECIDED. IT WOULD BE WORTHWHILE TO ADD THAT THE ONL Y PARAGRAPHS WHERE THE TRANSACTION IN UNITS HAVE BEEN REFERRED ARE PARAGRAPHS 47 AND 48, IN WHICH ALSO, INCORRECT FACTUAL OBSERVATIONS HAVE BEEN MADE, AS EXPLAINED HEREINABOVE. 8. THE COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE 7 TH MISTAKE IS WITH REGARD TO THE DECISION ARRIVED AT O NLY ON THE BASIS OF VOLUME AND FREQUENCY. ON PERUSAL OF THE D ISCUSSION ON MERIT AT PARAGRAPHS 43 TO 51, AND MORE PARTICULARLY PARAGRAPHS 50 AND 51, IT IS EVIDENT THAT THE TRIBUNAL HAS ARRI VED AT THE CONCLUSION MERELY ON THE BASIS OF VOLUME AND FREQUE NCY. IT HAS BEEN HELD BY VARIOUS COURTS, TIME AND AGAIN, AND AL SO LAID DOWN BY THE CBDT IN CIRCULAR NO. 4 DATED 15.06.2007 [291 ITR (ST.) 384] THAT ALL THE FACTORS HAVE TO BE SEEN CUMULATIV ELY AND DECISION CANNOT BE ARRIVED AT ON THE BASIS OF A SIN GLE CRITERION. IN THE PRESENT CASE, THE TRIBUNAL HAS ERRED IN IGNO RING ALL OTHER RELEVANT CRITERIA, LIKE PERIOD OF HOLDING, TREATMEN T IN ACCOUNTS, METHOD OF VALUATION, ABSENCE OF BORROWED FUND, CONS ISTENCY, SUBSTANTIAL DIVIDEND INCOME, ABSENCE OF ANY BUSINES S M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 8 TRANSACTIONS IN SHARES AND UNITS, ABSENCE OF F & O TRANSACTIONS ETC. 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED T HAT IN ITS ORDER DATED THE 5 TH AUGUST, 2011 THE TRIBUNAL HAD SUMMARISED THE ELABORATE ARGUMENTS OF THE AUTHORIZE D REPRESENTATIVE OF THE ASSESSEE AS WELL AS THE DEPAR TMENTAL REPRESENTATIVE AND PASSED A REASONED AND SPEAKING O RDER RUNNING INTO 40 PAGES. NOW, IT IS CLAIMED BY THE LE ARNED COUNSEL THAT THERE ARE SOME MISTAKES, NECESSITATING A PET ITION U/S 254(2). IT IS CONTENDED THAT THERE IS A BASIC CONT RADICTION BETWEEN THE CLAIM MADE AND THE RELIEF SOUGHT. IT IS STATED THAT THE PRESENT PETITION IS A PRAYER FOR RECTIFICATION OF CERTAIN MISTAKES APPARENT FROM THE RECORD. THE RELIEF SOU GHT VIDE PARA 12 OF THE PETITION ON PAGE 8, HOWEVER SEEKS THAT TH E TRIBUNAL MAY BE PLEASED TO RECALL ITS ORDER AND RE-HEAR THE APPEAL. IT IS READILY APPARENT THAT POWERS OF RECALL ARE AVAILABL E FOR CONSIDERATION ONLY IN TERMS OF RULE 24 AND RULE 25 OF THE ITAT RULES APPLICABLE ONLY FOR EX-PARTE DECISIONS. THE S COPE OF SEC 254(2), ON THE OTHER HAND, ARE CONFINED TO MISTAKE S, IF ANY, THAT ARE READILY APPARENT FROM THE RECORD. 10. THE LD. DR PLACED RELIANCE ON THE OBSERVATIONS OF THE HONBLE JURISDICTIONAL BENCH IN THE CASE OF SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST ( 47 SOT 501) (HYD) EXCERPTED HEREUNDER 10. THE SCOPE AND AMBIT OF APPLICATION U/S 254(2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATI ON OF MISTAKES APPARENT FROM RECORD. WE SHALL FIRST DEAL WITH THE POWER OF THE TRIBUNAL TO RECALL AN ORDER I N ITS ENTIRETY. RECALLING THE ENTIRE ORDER OBVIOUSLY WOUL D MEAN PASSING OF A FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISLATIVE INTENT . THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER SO FAR A S THE APPEAL IS CONCERNED. ANY ORDER PASSED UNDER S. 254(2) EITHER ALLOWING THE AMENDMENT OR REFUSING TO M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 9 AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMENDED OR REMAINING UN-AMENDED IS THE EFFECTIVE ORDER FOR ALL PRACTICAL PURPOSES. AN ORDER U/S 254(2) DOES NOT HAVE EXISTENCE DE-HORS THE ORDE R U/S 254(1). RECALLING OF THE ORDER IS NOT PERMISSIB LE U/S 254(2). RECALLING OF AN ORDER AUTOMATICALLY NECESSITATES RE-HEARING AND RE-ADJUDICATION OF THE ENTIRE SUBJECT MATTER OF APPEAL. THE DISPUTE NO LON GER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED . POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE ITAT RULES 1963, AND THAT T OO ONLY IN A CASE WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX-PARTE. JUDGED IN THE ABOVE BACKGROUND THE ORDER PASSED BY THE TRIBUNAL IS INDEFENSIBLE. (EMPHASIS SUPPLIED) 11. REGARDING THE NON CONSIDERATION OF GROUND NO. 3 AND CASE LAW REFERRED TO THEREIN, IT WAS URGED BY THE D R THAT, WITHOUT PREJUDICE TO THE POINT THAT THE HONBLE AP HIGH COURT WAS DEALING WITH A ALTOGETHER DIFFERENT SCENARIO IN 114 ITR 404, THE ISSUE HAS BEEN SQUARELY ADDRESSED BY THE HONBL E BENCH. THE ISSUE IS QUITE SPECIFICALLY NOTICED AT PARA 8 O N PAGE 5 OF THE ORDER. IN FACT THE GROUNDS, ARGUMENTS AND CASE LAW CITED BY THE AR HAVE BEEN ELABORATELY NOTICED FROM PAGES 5-13 OF THE ORDER. THE IMPUGNED ISSUES ARE THEREAFTER DISCUSSED IN A C OMPENDIOUS MANNER . NOTICED ISSUES DONT GET OVERLOOKED MERELY BECAUS E THEY ARE NOT IDENTIFIED AS ADJUDICATED IN SERIATIM . BY THE ARS YARDSTICK IT SHOULD FOLLOW THAT NO SPECIFIC ISSUE H AS BEEN ADJUDICATED, WHICH IS NOT THE GRIEVANCE, IN ANY CAS E. THERE CAN BE NO CONSTRUCTION IN LAW OR EXPECTATION IN PRACTIC E THAT THE ORDER OF AN APPELLATE AUTHORITY SHOULD READ LIKE PA RA-WISE COMMENTS. 12. IN THEIR ORDER DATED 02-06-2011 IN M.A. NO. 51/H/20 11 IN THE CASE OF M/S VIMTA LABS LTD., THE JURISDICTI ONAL BENCH OF ITAT (A BENCH) HELD AT PARA 4 AS UNDER M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 10 ...WE HAVE DEALT WITH ALL ISSUES INVOLVED IN THESE APPEALS ELABORATELY IN A COMPOSITE MANNER BY TAKING INTO ACCOUNT ALL AVAILABLE MATERIAL AND SUBMISSIONS OF THE PARTIES CAREFULLY WITHOUT MISSING ANY ASPECT OF THE MATTER AND THE CASE LAWS,...IT IS NOT NECESSARY THAT THE TRIBUNAL HAS TO STATE IN ITS JUDGEMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS... 13. THEIR LORDSHIPS OF THE AP HIGH COURT IN A RECENT DE CISION DT 27-07-2011 IN THE CASE OF SHRI P.V.S. RAJU (I.T.T.A.NO. 54 OF 2011) HELD AS UNDER AT PARA 16 ON PAGES 15-16 OF TH EIR ORDER ...THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY TH E TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL, AND H AS NOT TAKEN INTO ACCOUNT IRRELEVANT MATERIAL IN BASIN G ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NO T LIABLE TO BE INTERFERED WITH UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE . 14. THE NEXT ISSUE IS WHETHER THE ITAT WAS CORRECT IN S TATING THAT THE AO HAS TAKEN A VIEW WITHOUT PROPER ENQUIR Y WHEN IN FACT THE CIT CONCLUDES ON A READING OF THE RECORD T HAT THE AO CAME TO THE WRONG CONCLUSION. IN THE SAME VEIN, I T WAS ARGUED BY THE LD. COUNSEL THAT THE AO MADE ENQUIRIES VIDE HIS QUESTIONNAIRE DATED 04-08-2008 AND IS DEEMED TO HAV E CONCLUDED THAT THE ASSESSEE WAS AN INVESTOR, WHICH IS ONE OF THE POSSIBLE VIEWS. HAVING TAKEN ONE POSSIBLE VIEW, IT WAS ARGUED THAT THE CIT LACKED JURISDICTION TO REPLACE IT WITH HIS VIEW OF THE MATTER. 15. IN SHORT IT IS ARGUED BY THE LEARNED AR THAT THERE IS AN ACCEPTANCE OF ASSESSEES REPLIES WHICH IN TURN IS DEEMED TO BE A FINDING / OPINION OF THE AO. IT WAS URGED IN THE REPLY BY THE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 11 DR THAT THE ASSESSMENT ORDER, BEREFT OF SPECIFIC FI NDINGS IN THIS MATTER IS AS MUCH A PART OF THE RECORD PERUSED BY T HE LD CIT AS THE QUESTIONNAIRE/REPLY THERETO. IT WAS FURTHER URG ED THAT FAILURE TO RECORD A FINDING CANNOT BE A CASE OF EXPRESSING OPINION AND UNLESS OPINION IS EXPRESSED THERE CAN BE NO CONCEPT OF CHANGE OF OPINION. RECORDING OPINION CANNOT BE A MATTER OF ASSUMPTION. 16. IN THIS CONTEXT RELIANCE WAS PLACED ON A RECENT DEC ISION OF THE DELHI HIGH COURT DATED 26-09-2011 IN W.P. NO. 6 205/2010 IN THE CASE OF DALMIA PVT LTD VS CIT . RELEVANT PORTIONS ARE EXTRACTED AS UNDER 14. THE PRESENT CASE IS NOT ONE OF CHANGE OF OPINI ON AS URGED BY THE PETITIONER. QUESTION OF CHANGE OF OPINION ARISES WHEN AN ASSESSING OFFICER FORMS AN OPINION AND DECIDES NOT TO MAKE AN ADDITION AND HOLDS THAT THE ASSESSEE IS CORRECT . IN THE PRESENT CASE THE ASSESSING OFFICER HAD ASKED SPECIFIC AND POINTE D QUERIES WITH REGARD TO THE SUNDRY CREDITORS OF RS 1,66,37,402/- ASKED FOR CONFIRMATION, NAMES, ADDRESSES AND DETAILS OF SERVICES RENDERED. AN ADDITION OF RS 19,86,551/- WAS MADE FOR FAILURE TO FURNISH CONFIRMATION AND EXPLAIN WHAT SERVICES WERE RENDERED BY THE CREDITORS. THERE IS NO DISCUSSION, GROUND OR REASON WHY ADDITION OF RS 32,97,507/- WAS NOT MADE IN-SPITE OF THE FAILURE OF THE ASSESSE E TO FURNISH CONFIRMATION AND DETAILS. ...( EMPHASIS SUPPLIED). 17. THEREAFTER, AFTER DISCUSSING THE MATERIAL PROVISION S OF THE STATUTE, THEIR LORDSHIPS GO ON TO RECORD WITH APPROVAL, AT PARA 16, FROM AN EARLIER DECISION OF THE DELHI HIGH COUR T IN THE CASE OF CONSOLIDATED PHOTO AND FINVEST LTD VS ACIT , 281 ITR 394 AS UNDER - ...THE ARGUMENT THAT THE PROPOSED REOPENING WAS BASED ONLY ON A CHANGE OF OPINION HAS NOT IMPRESSED US. THE ASSESSMENT ORDER DID NOT ADMITTEDLY ADDRESS ITSELF TO THE QUESTION WHICH THE ASSESSING OFFICER PROPOSES TO EXAMINE IN THE COURSE OF REASSESSMENT PROCEEDINGS. THE SUBMISSION OF MR M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 12 VOHRA THAT EVEN WHEN THE ORDER OF ASSESSMENT DID NOT RECORD EXPLICIT OPINION ON THE ASPECTS NOW SOUG HT TO BE EXAMINED IT MUST BE PRESUMED THAT THOSE ASPECTS WERE PRESENT TO THE MIND OF THE ASSESSING OFFICER AND HAD BEEN HELD IN FAVOUR OF THE ASSESSEE IS TOO FAR-FETCHED A PROPOSITION TO MERIT ACCEPTANCE . THERE MAY INDEED BE A PRESUMPTION THAT THE ASSESSMENT PROCEEDINGS HAVE BEEN REGULARLY CONDUCTED, BUT THERE CAN BE NO PRESUMPTION THAT EVEN WHEN THE ORDER OF ASSESSMENT IS SILENT, ALL POSSIBLE ANGLES AND ASPECTS OF A CONTROVERSY HAD BEEN EXAMINED AND DETERMINED BY THE ASSESSING OFFICER ...(EMPHASIS SUPPLIED). 18. THIS DECISION ASSUMES FURTHER IMPORTANCE FOR THE RE ASON THAT IT IS RENDERED AFTER THE SUPREME COURTS OBITER DICTA ON CHANGE OF OPINION IN THE CASE OF KELVINATOR LTD 320 ITR 561. 19. IT WAS ALSO POINTED OUT BY THE DR THAT THIS WAS THE PRECISE POINT BEING MADE BY THE HONBLE BENCH IN THE PRESEN T ORDER, WHERE AT PARA 38 ON PAGE 29 IT WAS HELD THAT ... ADOPTING ONE OF THE COURSES PERMISSIBLE IN L AW NECESSARILY REQUIRES THE ASSESSING OFFICER TO CONSCIOUSLY ANALYSE AND EVALUATE THE FACTS IN THE LIGHT OF RELEVANT LAW AND BRING THEM ON RECORD. IT IS ONLY THEN THAT HE CAN BE SAID TO HAVE ADOPTED OR CHOSEN ONE OF THE COURSES PERMISSIBLE IN LAW. THE ASSESSING OFFICER CANNOT BE PRESUMED OR ATTRIBUTED TO HAVE ADOPTED OR CHOSEN A COURSE PERMISSIBLE IN LA W WHEN HIS ORDER DOES NOT SPEAK IN THAT BEHALF.... 20. SIMILARLY, IN THEIR ORDER DATED 09-04-2010 VIDE ITA 01/H/2009 IN THE CASE OF M/S SARANG HI-TECH COLD S TORAGE (P) LTD., THE A BENCH (HYDERABAD) HAVE HELD AS FOLLOWS AT PARA 4 ON PAGE 3- THE CIT IS JUSTIFIED IN INVOKING THE PROVISION U/ S 263 OF THE ACT, BECAUSE THERE IS A WRONG ASSUMPTION OF FACTS BY ASSESSING OFFICER AND ALSO NON APPLICAT ION OF MIND . THERE WAS TOTAL FAILURE ON THE PART OF THE ASSESSING OFFICER TO MAKE ENQUIRIES THAT ARE CALLED FOR IN THE CIRCUMSTANCES IF THE CASE. THE ASSESSING OFF ICER SHOULD HAVE MADE FULL ENQUIRIES BEFORE ACCEPTING TH E CLAIM MADE BY THE ASSESSEE IN ITS RETURN. THE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 13 ASSESSING OFFICER IS NOT ONLY AN ADJUDICATOR BUT AL SO HE IS AN INVESTIGATOR. HE CANNOT REMAIN PASSIVE IN THE FACE OF A RETURN WHICH IS APPARENTLY IN ORDER B UT CALLS FOR FURTHER ENQUIRY. IT IS HIS DUTY TO ASCERT AIN THE TRUTH OF THE FACTS STATED IN THE RETURN WHEN THE CIRCUMSTANCES ARE SUCH AS TO PROVOKE INQUIRY. THE MEANING OF THE WORD ERRONEOUS IN SECTION 263 EMERGES OUT OF THIS CONTEXT .... 21. THE B BENCH IN AN ORDER DATED 15-02-2008 VIDE ITA 270/H/2006 IN THE CASE OF THERMAL SYSTEMS (HYD) (P) LTD AFTER NOTICING THAT THE DECISIONS OF THE RAJASTHAN HIGH C OURT IN 213 ITR 843 (EMERY STONE MFG CO), GUJARAT HIGH COURT IN 111 ITR 312 (MUKUR CORPORATION), DELHI HIGH COURT 281 ITR 3 94 (CONSOLIDATED PHOTO & FINVEST LTD), AND BOMBAY HIGH COURT 150 ITR 513 (KRISHNA NARAYAN NAIK), WERE ALL CLEARLY SU PPORTED IN THEIR CONCLUSIONS BY THE SUPREME COURTS DECISION ( 243 ITR 83) IN THE CASE OF MALABAR INDUSTRIAL CO. LTD IN THE MA TTER OF ASSUMPTION OF JURISDICTION BY THE CIT U/S 263, HELD THAT WHERE AO HAS NOT APPLIED HIS MIND HE CANNOT BE SEEN AS HA VING TAKEN ONE OF THE PERMISSIBLE VIEWS. ON A CONSIDERATION OF THE SUPREME COURTS DECISION IN THE CASE OF CIT VS MAX INDIA LTD 295 ITR 282 WHICH HELD THAT AN ORDER CANNOT BE ERRONEOUS WHEN O NE OF THE TWO POSSIBLE VIEWS WAS TAKEN, THE HONBLE BENCH HEL D ...IN THIS CASE AS WE HAVE ALREADY DISCUSSED, THE AO HAD NOT TAKEN ANY VIEW WHICH WAS POSSIBLE ON THE FACTS AND IN LAW, AVAILABLE ON THE DATE ON WHICH HE PASSED THE ASSESSMENT ORDER. ... FURTHERMORE, THE A O HAD NOT RECORDED ANY REASON AT ALL. THE ASSESSMENT ORDER IS IN FACT SILENT WITH REGARD TO THE ISSUE RA ISED BY THE ADMINISTRATIVE COMMISSIONER.... 22. THE WRONG CONCLUSION REFERRED TO ON PAGE 6 OF THE ORDER U/S 263 FLOWS FROM THE ERROR IN ACCEPTING THE CLAIM ON RECORD. THE GENESIS OF THIS ERROR POINTED OUT BY THE LEARNE D CIT, AS WAS URGED BY THE DR, LAY IN ACCEPTING THE CLAIM OF THE ASSESSEE WITHOUT CARRYING OUT A COMPLETE ENQUIRY, AND WITHOU T RECORDING A FINDING OF ANY NATURE. THIS WAS POINTED OUT ON TH E M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 14 IMMEDIATELY PRECEDING PAGE 5 OF THE AFOREMENTIONED ORDER. THIS WAS PRECISELY THE POINT NOTED BY THE BENCH FROM PA GES 26-30 OF THEIR ORDER. THE ERROR LAY IN AN INCORRECT ASSUMPTI ON OF FACT IN NOTICING WHICH THERE WAS NO DIVERGENCE BETWEEN THE LD CIT AND THE BENCH. THE LD COUNSEL IN TRYING TO SET UP A CO NFLICT BETWEEN THE PHRASE WRONG CONCLUSION USED BY THE L D CIT AND THE EXPRESSION HAS NOT AT ALL EXAMINED EMPLOYED B Y THE BENCH HAS MISSED THE OVERARCHING FACT THAT THE BENCH HAS APPROVED OF THE CONCLUSIONS DRAWN BY THE LD CIT FROM THE FACTS ON RECORD. 23. IT WAS ALSO URGED BY THE DR THAT WITHOUT PREJUDICE TO THIS ARGUMENT ON THE CORRECTNESS OF THIS ARGUMENT, THE H ONBLE BENCH CANNOT BE REQUESTED TO REVIEW THE CORRECTNESS OF ITS CONCLUSIONS IN A PETITION U/S 254(2). IT IS JUDICI ALLY WELL ESTABLISHED THAT AN ERROR OF JUDGMENT, ASSUMING IT TO BE SO, DOES NOT GIVE RISE TO A MISTAKE APPARENT FROM THE RECORD . 24. LD AR IN HIS ARGUMENTS HAD SUBMITTED THAT THERE WER E CERTAIN MISTAKES IN DRAWING CONCLUSIONS FROM REDE MPTION OF MUTUAL FUND UNITS, RATIO OF CAPITAL GAINS TO DIVIDE ND, FREQUENCY OF TRANSACTIONS, NUMBER OF SHARES PURCHAS ED IN SPECIFIC TRANSACTIONS, ETC. IN RESPONSE IT WAS URGE D BY THE DR THAT EVEN IF THESE MISTAKES ARE INDEED MISTAKES, BY THEMSELVES THEY ARE NOT ENOUGH TO QUALIFY THE BUSINESS NATURE OF THE ASSESSEES ACTIVITY. SECONDLY, THE IMPACT OF THESE MISTAKES ARE ARGUABLE AND HENCE OUTSIDE THE SCOPE OF THIS PETITI ON. AS URGED IN THE PRECEDING PARAGRAPH, IT IS AT THE MOST, AN A PPEALABLE ERROR OF JUDGEMENT AND NOT A RECTIFIABLE MISTAKE APPARENT FROM RECORD. 25. IN THIS CONTEXT RELIANCE WAS PLACED BY THE DR ON TH E FOLLOWING OBSERVATION OF THE JURISDICTIONAL HIGH CO URT IN THE CASE OF SHRI P.V.S. RAJU (SUPRA) ON PAGE 16-17 M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 15 17. THE ORDER OF THE ITAT OUGHT NOT TO BE MICROSCOPICALLY SCRUTINISED ONLY TO LOCATE SOME INSIGNIFICANT ERRORS. WHEN VIEWED IN THE LIGHT OF SEVERAL FINDINGS RECORDED BY THEM IN COMING TO THE CONCLUSION THAT THE SHARES WERE HELD BY THE APPELLANTS AS STOCK IN TRADE AND NOT AN INVESTMENT, THE ERRONEOUS FINDING OF THE ITAT THAT THE APPELLAN TS HAD ALL THE SHARES FOR LESS THAN TWO MONTHS PALES INTO INSIGNIFICANCE....HUGE VOLUME OF SHARE TRANSACTIONS, THE REPETITION AND CONTINUITY OF THE TRANSACTIONS, GIVE THEM A FLAVOUR OF TRADE ;... 26. FURTHERMORE, IT WAS ALSO HELD IN THIS CASE (VIDE PA RA 16 ON PAGE 15) THAT THE CHARACTER OF THE TRANSACTION DEPE NDED NOT SOLELY ON ANY SINGLE TEST, BUT WAS ULTIMATELY A MA TTER OF FIRST IMPRESSION WITH THE COURT NOT LIABLE TO BE INTERFE RED WITH UNLESS BASED ON ENTIRELY IRRELEVANT MATERIAL. 27. IN RESPONSE TO THE ARGUMENT OF THE LD AR THAT THE BENCH OVERLOOKED THE PRINCIPLE OF CONSISTENCY, IT WAS POI NTED OUT BY THE DR THAT IN ADDITION TO THE LEGAL POSITION THAT THERE IS NO RES JUDICATA IN INCOME TAX PROCEEDINGS, THE ASSESSEE WAS IGNORIN G THE FACT OF CONSISTENCY WITH REFERENCE TO EARLIER Y EARS, PRIOR TO CHANGES IN LAW, WHEN THE ASSESSEE HAD NO RESERVATIO NS ABOUT BEING SEEN AS A TRADER IN SHARES. 28. DURING THE HEARING IT WAS ARGUED THAT THE LD CIT SH OULD NOT HAVE ISSUED THE SECOND NOTICE ON THE ISSUE AF TER ACCEPTING THE REPLY TO THE FIRST LETTER. SECONDLY THE NOTICE U/S 263 DOES NOT RAISE THE ISSUE OF NON-APPLICATION OF MIND BY THE A O. THIRDLY, INSOFAR AS THERE IS NON-APPLICATION OF MIND BY THE AO THE CIT SHOULD HAVE SET ASIDE THE MATTER FOR DE -NOVO ADJUDICATION BY THE AO RATHER THAN CONCLUDING IN THE MATTER. (A) IN THE REPLY, IT WAS URGED BY THE DR THAT BESID ES THE FACTUAL APPROPRIATENESS AND LEGAL CORRECTNESS OF TH E DECISION OF THE CIT, THERE ARE TECHNICAL FLAWS INHE RENT IN M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 16 THE ARGUMENT OF THE LD COUNSEL. FIRSTLY, BOTH LETTE RS ISSUED BY THE LD CIT IN THE MATTER ARE ON THE SAME SUBJECT AND ARE IN CONTINUATION OF ONE ANOTHER. THE RE IS NO GAINSAYING THE FACT THAT PROCEEDINGS WERE NOT CONCLUDED ON CONSIDERATION OF THE FIRST REPLY. SECO NDLY, ON THE ISSUE OF WHETHER NON-APPLICATION OF MIND WAS IDENTIFIED AS AN ISSUE IT WAS SUBMITTED THAT THE CO NTEXTUAL FACT OF NON-APPLICATION OF MIND WAS WRIT LARGE IN T HE SHOW- CAUSE NOTICE. BESIDES, THIS IS, IN THE ULTIMATE ANA LYSIS, A MATTER OF FACTS ON RECORD, RATHER THAN WHETHER A CE RTAIN PHRASE WAS EMPLOYED OR NOT. THIRDLY, ON THE ISSUE O F WHETHER THE LD CIT OUGHT TO HAVE SIMPLY SET ASIDE T HE MATTER RATHER THAN ISSUING DEFINITE DIRECTIONS TO T HE AO IT WAS POINTED OUT THAT SUCH A GROUND WAS NEVER TAKEN IN THE ASSESSEES APPEAL IN THE FIRST INSTANCE, AND IT WAS, THEREFORE, WRONG TO EVEN RAISE SUCH ISSUES NOW. (B) IN SUM, THE ASSESSEE WAS SEEKING TO RE-ARGUE HI S APPEAL IN THE GUISE OF RECTIFICATION PROCEEDINGS, WHICH WA S FUNDAMENTALLY WRONG. 29. THE HONBLE JURISDICTIONAL BENCH IN THE CASE OF SRI MATHURADASJI AYODHYABAI RATHI CHARITABLE TRUST (SUPRA), RELYING ON 330 ITR 164 (P&H) CIT VS PEARL WOLLEN MILLS AND 293 ITR 163 (DEL) CIT VS HINDUSTHAN COCA COLA BEVERAGES (P) LTD., SPELT OUT THAT OVERSIGHT OF A FACT, OR FAILURE TO CONSIDE R AN ARGUMENT, OR ARRIVING AT A WRONG CONCLUSION MAY BE ERRORS OF JUDGEMENT, BUT THAT CANNOT CONSTITUTE A MISTAKE APPARENT FROM THE RECORD, RECTIFIABLE U/S 254(2). 30. BESIDES THE CASE LAW RELIED UPON HEREIN-ABOVE, THE DR PLACES RELIANCE ON A CATENA OF DECISIONS AS UNDER M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 17 A. CIT VS ITAT & ANR., 206 ITR 126 (AP) B. REAL FOODS P LTD VS ITAT, 229 ITR 351 (AP) C. ACWT (INV) VS RAMESH PERSHAD GOEL, 276 ITR (AT) 93 (HYD) D. CIT VS EARNEST EXPORTS LTD, 323 ITR 577 (BOM) E. NOVARTIS AG, BASLE VS ADDL CIT, 100 ITD 42 (MUM) F. RAS BIHARI BANSAL VS CIT & ANR., 293 ITR 365 G. ASIA RESORTS LTD VS CIT, 63 DTR 33 (HP) H. CIT VS SUMAN TEA & PLYWOOD INDRS P LTD, 226 ITR 34 (CAL) I. ITO VS ITAT & ANR, 229 ITR 651 (PAT) J. CIT VS ITAT & ANR, 196 ITR 640 (ORI) K. GAYWAYS PUBLICITY P LTD VS CIT, 211 ITR 506 (DEL) L. PERFETTI VAN MELLE INDIA P LTD VS CIT, 296 ITR 595 (DEL) M. CIT VS RAMESH TRADING CO., 203 ITR 407 (BOM) N. CIT VS KN SHANMUGHASUNDARAM, 232 ITR 354 ( ) O. CIT VS GLOBAL CORPORATION LTD., 292 ITR 651 (KAR) P. CIT VS SMT SHASHI MODI, 277 ITR 355 (ALL) Q. DEEKSHA SURI VS ITAT, 232 ITR 395 (DEL) R. ITO VS ITAT & ANR., 168 ITR 809 (RAJ) S. TS BALARAM VS VOLKART BROS., 82 ITR 50 (SC). 31. IN CONSIDERATION WHERE-OF, IT IS URGED THAT THE FOL LOWING BROAD PROPOSITIONS EMERGE FOR CONSIDERATION OF THE BENCH I. THE GROUND FOR CONSIDERATION SHOULD NOT BE DEBATABLE OR REQUIRING ELABORATE ARGUMENT; II. EVERY ERROR CANNOT BE THE SUBJECT OF A PETITION U/S 254(2); III. AN INTERPRETATION MAY BE RIGHT OR WRONG. THE BENCH CANNOT BE ASKED TO SIT IN JUDGEMENT OVER AN ISSUE ONCE AGAIN; IV. WITHOUT PREJUDICE TO THE SPECIFICS OF THE PRESENT CASE, AN ERROR OF JUDGEMENT, EVEN IF IT IS EGREGIOU S, CANNOT BE THE SUBJECT OF A PETITION U/S 254(2). OTH ER REMEDIES ARE AVAILABLE; V. A LITIGANT CANNOT BE PERMITTED A SECOND INNINGS IN THE GUISE OF A PETITION U/S 254(2). IN VIEW OF THE ABOVE SUBMISSIONS, IT IS PRAYED THAT THE PETITION U/S 254(2) BE DISMISSED. 32. IN THE REJOINDER, THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED AS UNDER:- I) WITH REFERENCE TO PARAGRAPH NO.2 OF THE WRITTEN SUBMISSIONS, IT IS SUBMITTED THAT THOUGH WE HAVE NO SPECIFIC COMMENTS TO OFFER TO THE STATEMENTS MADE T HEREIN, M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 18 WE PUT IT ON RECORD THAT THE APPLICATIONS UNDER SEC TION 254(2) OF THE ACT ARE FILED TO SEEK RECTIFICATION O F MISTAKES APPARENT ON RECORD, WHICH IS THE USUAL PRACTICE AND PROCEDURE WHEN APPARENT MISTAKES ARE FOUND IN THE ORDERS PASSED UNDER SECTION 254(1) OF THE ACT. ALL THAT THE ASSESSEE HAS DONE IN THE PRESENT CASE IS TO PRESS I NTO SERVICE THIS PROVISION SINCE GLARING AND APPARENT M ISTAKES WERE FOUND IN THE ORDER OF THE TRIBUNAL. II) WITH REFERENCE TO PARAGRAPH-3 OF THE WRITTEN SU BMISSIONS, WE STATE THAT THE OBJECTIONS RAISED BY THE LEARNED CIT (DR) HEREIN ARE PURELY TECHNICAL IN NATURE AND, THEREFOR E, WOULD NOT COME TO THE WAY OF EXERCISE OF POWERS UND ER SECTION 254(2) OF THE ACT. IN ANY CASE, IT IS HUMB LY SUBMITTED THAT THE CAPTIONED MISCELLANEOUS APPLICAT ION IS REQUIRED TO BE READ ALONG WITH THE SUBSEQUENT LETTE R DATED 19-9-2011 SUBMITTED BEFORE THE TRIBUNAL AND THE LEA RNED DEPARTMENTAL REPRESENTATIVE CLARIFYING THE MISTAKES IN THE ORDER SOUGHT TO BE RECTIFIED, IN THE INTEREST OF JU STICE AND EQUITY. III) WITH REFERENCE TO PARAGRAPH-3.1 OF THE WRITTEN SUBMISSIONS, WITHOUT MAKING ANY COMMENTS UPON THE ORDER CITED THEREIN IT IS SUBMITTED THAT THE TRIBUN AL IS REQUIRED TO RECTIFY THE MISTAKES WHICH HAVE CREPT I N THE ORDER WHEN POINTED OUT, OR EVEN OTHERWISE ON THEIR OWN WHICH IS EVIDENT FROM THE WORDINGS OF SECTION 254(2 ) OF THE ACT ITSELF. THIS PROPOSITION IS FURTHER FORTIFIED BY THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LIMITED 30 5 ITR 227, WHEREIN THE ORDER OF THE TRIBUNAL RECALLIN G THE EARLIER ORDER WAS UPHELD. IV) WITH REFERENCE TO PARAGRAPH NO.4 OF THE WRITTE N SUBMISSIONS, IT IS SUBMITTED THAT ASSUMPTION OF M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 19 JURISDICTION UNDER SECTION 263 OF THE ACT IS THE VE RY STARTING POINT IN SO FAR AS REVISIONARY PROCEEDINGS ARE CONCERNED. THERE CAN BE NO DOUBT THAT ANY DENT IN PROPER AND VALID JURISDICTION WOULD RESULT IN NULLI TY OF THE ULTIMATE ORDER WHICH IS THE RULE OF LAW. IN THIS V IEW OF THE MATTER, IT IS SUBMITTED THAT THE STATEMENT OF THE L D. CIT (DR) THAT SUCH ISSUES WERE DISCUSSED IN A COMPENDIO US MANNER IS AGAINST THE STATUTORY PROVISIONS AND PREC EDENT. AS A VERY SPECIFIC GROUND CHALLENGING THE JURISDICT ION WAS TAKEN AND ARGUED, THERE IS A MISTAKE APPARENT ON RE CORD AS IN THE ORDER OF THE TRIBUNAL THERE IS NO FINDING AT ALL ON THIS VITAL ISSUE. V) WITH REFERENCE TO THE ORDER OF THE TRIBUNAL IN M A NO.51/HYD/2011 DATED 2-6-2011 IN THE CASE OF M/S VIMTA LABS LTD., AND THE JUDGMENT OF THE HONBLE A. P. HIGH COURT IN THE CASE OF SHRI PVS RAJU EXTRACTED I N PARAGRAPHS 4.1 AND 4.2 RESPECTIVELY OF THE WRITTEN SUBMISSIONS, IT IS SUBMITTED THAT IN BOTH THESE CAS ES, THE NON-APPRECIATION OF JURISDICTIONAL ISSUE WAS NOT TH E SUBJECT MATTER FOR CONSIDERATION. AS IS EVIDENT FR OM THE EXCERPTS QUOTED IN THESE PARAGRAPHS, IT IS MANIFEST THAT IN THOSE PROCEEDINGS THE APPREHENSION OF THE ASSESSEE WAS ABOUT NON-CONSIDERATION OF CERTAIN MATERIAL AND THE FINDINGS OF THE TRIBUNAL AND THE HONBLE HIGH COURT WERE IN THAT REGARD ONLY. IT IS, THEREFORE, HUMBLY SUBM ITTED THAT BOTH THE ORDER OF THE TRIBUNAL AND THE HONBLE HIGH COURT CITED BY THE LD. CIT (DR) IN THESE PARAGRAPHS WOULD NOT AND COULD NOT ADVANCE HIS CASE. VI) WITH REFERENCE TO PARAGRAPH 5 OF THE WRITTEN SU BMISSIONS, THE AR IS HAVING NO COMMENTS TO OFFER. VII) WITH REFERENCE TO PARAGRAPH 5.1 OF THE WRITTEN SUBMISSIONS, IT IS SUBMITTED THAT THE ARGUMENT FOR THE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 20 ASSESSEE IN THE CAPTIONED MISCELLANEOUS APPLICATION WAS THAT IT WAS NOT THE CASE OF THE LD. CIT IN PROCEEDI NGS UNDER SECTION 263 OF THE ACT THAT THE ASSESSING OFF ICER HAS FAILED TO APPLY HIS MIND, BOTH IN THE SHOW CAUSE NO TICE SO ALSO IN THE CONSEQUENT ORDER. IT WAS IN THIS CONTE XT THAT IT WAS PLEADED THAT THE TRIBUNAL COULD NOT HAVE UPHELD THE ORDER OF THE CIT PASSED UNDER SECTION 263 OF THE AC T ON THE GROUND THAT THE ORDER PASSED BY THE ASSESSING O FFICER WAS ERRONEOUS BECAUSE OF NON APPLICATIO0N OF MIND. IT IS FELT APT TO STATE THAT THE ARGUMENT OF THE LD. CIT (DR) REGARDING CHANGE OF OPINION IS ON DIFFERENT PROPOSI TION AND THEREFORE NOT RELEVANT AT ALL TO THE PRESENT PROCEEDINGS. VIII) WITH REFERENCE TO THE CASE LAWS REFERRED TO A ND EXTRACTED IN PARAGRAPHS NO.5.2, 5.3, 5.4 ANE 5.5 O0F THE WRIT TEN SUBMISSIONS, IT IS SUFFICIENT TO STATE THAT IN THES E DECISIONS THE DEBATE WAS IN RESPECT OF CHANGE OF O PINION. IN THIS VIEW OF THE MATTER, IT IS HUMBLY SUBMITTED THAT THE CASE LAWS RELIED UPON BY THE LD. CIT (DR) IN THESE PARAGRAPHS ARE NOT AT ALL RELEVANT FOR THE PURPOSE OF THE PRESENT PROCEEDINGS. IX) WITH REFERENCE TO PARAGRAPH NO.5.6 OF THE WRITT EN SUBMISSIONS, ATTENTION OF THE HONBLE MEMBERS IS IN VITED TOWARDS THE CONCLUSION OF THE LD. CIT AT THE END OF PARAGRAPH 5 OF HIS ORDER TO THE EFFECT THAT THE ASS ESSMENT ORDER IS ERRONEOUS BECAUSE OF ACCEPTANCE OF THE CLA IM OF THE ASSESSEE FOR LTCG AND STCG. FURTHER AT THE END OF PARAGRAPH 5.1 OF HIS ORDER, THE LD. CIT HAS CONCLUD ED AS UNDER: THE ASSESSEES RELIANCE ON THE DECISION IN THE CAS E OF KELVINATOR OF INDIA LIMITED (256 ITR 1 DEL) IS N OT APPLICABLE TO PROCEEDINGS U/S 263 OF THE ACT WHERE COMMISSIONER CAN CORRECT BOTH THE ERRORS OF FACT AN D M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 21 THE ERRORS OF LAW EVEN IF THE ASSESSING OFFICER APP LIED HIS MIND AND CAME TO AN INCORRECT CONCLUSION WHILE MAKING THE ASSESSMENT. ON THE FACTS OF THIS CASE, THE ASSESSING OFFICER HAS ERRONEOUSLY ALLOWED THE EXEMPTION UNDER SECTION 10(38) AS LONG TERM CAPITAL GAINS WHILE THE SAME OUGHT TO HAVE BEEN ASSESSED AS PROFITS OF THE ASSESSEE FROM TRADING OF SHARES. THUS, APPLICATION OF MIND BY THE ASSESSING OFFICER AND COMING TO A WRONG CONCLUSION IS NOT A BAR FROM EXERCISING JURISDICTION U/S 263 BY THE COMMISSIONER. IN THE LIGHT OF THE ABOVE, IT IS SUBMITTED THAT THE AVERMENTS MADE IN PARAGRAPH 5.6 OF THE WRITTEN SUBMISSIONS ARE INCORRECT. WITH REFERENCE TO PARA 5 .7 OF THE WRITTEN SUBMISSIONS, IT IS SUBMITTED THAT THE E RRORS POINTED OUT IN THE RECTIFICATION PROCEEDINGS ARE MA NIFEST AND VERY MUCH APPARENT ON THE FACE OF THE RECORD. THOUGH FOR THE SAKE OF BREVITY OF THE RECORD, WE WO ULD NOT HARP UPON THE SUBJECT, IT IS WELL SETTLED PROPOSITI ON IN LAW THAT IT IS THE BOUNDEN DUTY OF THE HONBLE TRIBUNAL TO RECTIFY THE APPARENT MISTAKES POINTED OUT IN S. 254 (2) PROCEEDINGS, OR EVEN ON THEIR OWN AS EXPLAINED IN PARAGRAPH 5 HEREINABOVE. X) WITH REFERENCE TO PARAGRAPH NO.6 OF THE WRITTEN SUBMISSIONS, IT IS SUBMITTED THAT EVEN IF THE IMPAC T OF THE RECTIFICATION APPLICATION IS ARGUABLE, THE MISTAKE HAS TO BE RECTIFIED. THE MANDATE OF LAW IS THAT THE MISTAKE SHOULD BE APPARENT AND NOT THE IMPACT THEREOF. IN ANY CAS E, THE APPARENT MISTAKE HAS TO BE RECTIFIED TO KEEP THE RE CORDS STRAIGHT. XI) WITH REFERENCE TO PARA NO.6.1 OF THE WRITTEN SU BMISSIONS, IT IS SUBMITTED THAT THE JUDGMENT OF THE HONBLE AP HIGH COURT IN THE CASE OF SRI PVS RAJU, RELIED UPON BY T HE LD. CIT (DR), IS NOT APPLICABLE TO THE FACTS OF THE CAS E FOR THE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 22 FOLLOWING REASONS, WHICH HAVE BEEN ELABORATED UPON AT THE TIME OF HEARING:- (A) IN THAT CASE, THE ASSESSEE HAD CHANGED THE TREATMENT PURSUANT TO THE CHANGE IN LAW WHICH IS NOT THE CASE IN THE CASE OF THE ASSESSEE. (B) IN THAT CASE CONSISTENCY WAS NOT THE POINT OF ARGUMENT WHEREAS IN THE CASE OF THE ASSESSEE, THE BASIC ARGUMENT IS OF CONSISTENCY. (C) THE FACTS ARE COMPLETELY DIFFERENT IN RESPECT OF FREQUENCY, VOLUME, PERIOD OF HOLDING, DELIVERY ETC. , WHICH WERE SPECIFICALLY POINTED OUT AT THE TIME OF HEARING. XII) WITH REFERENCE TO PARAGRAPH NO.7 OF THE WRITTE N SUBMISSIONS, IT IS SUBMITTED THAT THE LD. CIT (DR) IS UNDER AN INCORRECT IMPRESSION THAT THE ASSESSEE HAS BEEN CONSIDERING ITSELF ALL ALONG AS A TRADER PRIOR TO T HE CHANGE IN LAW AND, THEREFORE, IS STOPPED NOW FROM PLEADING THAT IT IS AN INVESTOR. IT IS SUBMITTED THAT THIS STATEMEN T OF THE LD. CIT (DR) IS INCORRECT AND MISLEADING AND THE RE CORDS WOULD SPEAK OTHERWISE IN AS MUCH AS, RIGHT FROM THE VERY BEGINNING THE ASSESSEE HAS BEEN CONSIDERING ITSELF AS AN INVESTOR. IN THE CIRCUMSTANCES, IT IS SUBMITTED TH AT THE STATEMENTS MADE BY THE LD. CIT (DR) IN THIS PARAGRA PH DESERVE TO BE IGNORED AS THEY ARE CONTRARY TO THE R ECORD. XIII) WITH REFERENCE TO PARAGRAPH NO.8 OF THE WRITT EN SUBMISSIONS, WE HAVE NO COMMENTS TO OFFER. WITH REFERENCE TO PARAGRAPH 8.1 OF THE WRITTEN SUBMISSIO NS, IT IS SUBMITTED THAT THIS PARAGRAPH HAS THREE PARTS. SINCE THE FIRST PART CONCERNS THE MERITS OF ASSESSEES GR OUND NO.2 IN THE APPEAL, IT IS IRRELEVANT AT THIS STAGE AS WHAT IS SOUGHT IN THESE PROCEEDINGS IS TO FIND OUT WHETHER THIS GROUND HAS BEEN ADJUDICATED OR NOT. M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 23 XIV) IN SO FAR AS THE SECOND PART, I.E., THE STAND OF THE LD. CIT (DR) THAT NON-APPLICATION OF MIND WAS INBUILT IN THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 263 OF THE A CT, IT IS SUBMITTED THAT THIS PROPOSITION IS CONTRARY TO T HE PROVISION AND ALSO PRECEDENT. THE SHOW CAUSE NOTIC E ITSELF HAS TO CLEARLY SPECIFY THE CASE OF THE COMMI SSIONER AS OTHERWISE THERE WOULD BE VIOLATION OF THE PRINCI PLES OF NATURAL JUSTICE. IN THIS VIEW OF THE MATTER, THE S AID ARGUMENT ABOUT INBUILT NATURE OF NON APPLICATION OF MIND IN THE SHOW CAUSE NOTICE IS DEVOID OF ANY MERIT AND , THEREFORE, DESERVES TO BE REJECTED AT THE THRESHOLD . XV) IN THIS CONNECTION, RELIANCE WAS PLACED UPON TH E ORDER OF THE TRIBUNAL IN THE CASE OF MAXPAK INVESTMENT LTD. VS. ACIT (13 SOT 67,75 (DEL) AND A COPY OF WHICH WAS SUBMITTED BEFORE THE BENCH DURING THE COURSE OF TH E HEARING. IN THIS CLASSIC ORDER, THE TRIBUNAL AFTER RELYING UPON THE JUDGMENT OF THE HONBLE AP HIGH COURT IN T HE CASE OF CIT V. G.K. KABRA (211 ITR 336) AND CERTAIN ORDERS OF THE TRIBUNAL HAVE HELD IN UNEQUIVOCAL TERMS AS U NDER:- 10. THE RATIO OF THE DECISION, CLEAR FROM THE AB OVE OBSERVATIONS, IS THAT IF A GROUND OF REVISION IS NO T MENTIONED IN THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 263, THAT GROUND CANNOT BE MADE THE BASIS O F THE ORDER PASSED UNDER THE SECTION, FOR THE SIMPLE REASON THAT THE ASSESSEE WOULD HAVE HAD NO OPPORTUNITY TO MEET THE POINT. IN THE ABOVE CASE THE HONBLE TRIBUNAL HAS SPECIFIC ALLY REJECTED THE ARGUMENT THAT SOMETHING WHICH IS NOT SPECIFICALLY STATED IN THE SHOW CAUSE NOTICE SHOULD BE UNDERSTOOD BY IMPLICATION. THE LD. AR DREW THE AT TENTION OF THE BENCH IN THIS REGARD TO PARA 10 OF THE ABOVE REFERRED ORDER. IN VIEW OF THE PRESCRIPTIONS OF TH E PROVISION AND THE PRECEDENT, IT IS REITERATED THAT THE ARGUMENT OF THE LD. CIT (DR) THAT NON-APPLICATION O F MIND M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 24 WAS INBUILT IN THE SHOW CAUSE NOTICE TO DEVOID OF A NY MERIT. XVI) WITH RESPECT TO THE THIRD PART OF THIS PARAGRA PH, IT IS SUBMITTED THAT WHEN THE MATTER WAS ARGUED ORIGINALL Y, IT WAS NOBODYS CASE THAT THE ASSESSING OFFICER HAD NO T APPLIED HIS MIND. THEREFORE, IN OUR HUMBLE SUBMISS ION, THERE WAS NO OCCASION FOR THE ASSESSEE TO ARGUE FOR SETTING ASIDE OF THE MATTER. IT IS NOW THE CASE OF THE ASS ESSEE, ASSUMING FOR THE SAKE OF ARGUMENT BUT WITHOUT ACCEP TING, THE FINDING OF THE TRIBUNAL THAT THERE WAS NON APPL ICATION OF MIND BY THE ASSESSING OFFICER THAT IN THAT CASE THE MATTER OUGHT TO HAVE BEEN GONE BACK. XVII) WITH REFERENCE TO PARAGRAPH NO.8.2 OF THE WRI TTEN SUBMISSIONS, IT IS SUBMITTED THAT THE ATTEMPT OF TH E ASSESSEE IS NEITHER TO REARGUE THE MATTER NOR TO FU RTHER STRENGTHEN THE CASE BUT ONLY TO GET THE VITAL AND G LARING APPARENT MISTAKES, WHICH GO TO THE ROOT OF THE MATT ER, RECTIFIED AND WHICH IS ALSO THE BOUNDEN DUTY OF THE TRIBUNAL AS HAS BEEN RULED BY THE HONBLE SUPREME COURT. XVIII) WITH REFERENCE TO PARAGRAPH 9 OF THE WRITTEN SUBMISSIONS, IT IS REPEATED AND REITERATED THAT THE CASE OF THE ASSESSEE HAS NEVER BEEN THAT THERE WAS ANY OVER SIGHT OF FACTS OR FAILURE TO CONSIDER ANY ARGUMENT ON THE PART OF THE TRIBUNAL IN THE PRESENT PROCEEDINGS. ON THE CO NTRARY, ALL ALONG IT HAS BEEN THE STAND OF THE ASSESSEE THA T IN VIEW OF THE APPARENT MISTAKES GOING TO THE ROOT OF THE M ATTER, THE ORDER OF THE TRIBUNAL DESERVED TO BE RECALLED. ACCORDINGLY, IT IS SUBMITTED THAT THE JUDGMENTS REL IED UPON BY THE LD. CIT (DR) IN THIS PARAGRAPH, BEING DISTINGUISHABLE, ARE OF NO ASSISTANCE TO HIS PLEADI NGS. M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 25 XIX) WITH REFERENCE TO THE CASE LAWS RELIED UPON BY THE LD. CIT (DR) IN PARAGRAPH 10 OF THE WRITTEN SUBMIS SIONS, IT IS SUBMITTED THAT NONE OF THEM IS ON THE POINT A T ISSUE AND, THEREFORE, INAPPLICABLE TO THE FACTS OF THE CA SE OF THE ASSESSEE. ACCORDINGLY, IN ORDER NOT TO BURDEN THE RECORD, WE REFRAIN FROM ENTERING INTO DISCUSSION ON EACH AN D EVERY CASE LAW. 33. FOR THE ABOVE REASONS, IT IS HUMBLY PRAYED THAT THE WRITTEN SUBMISSIONS FILED BY THE LD. CIT (DR) ARE D EVOID OF ANY MERIT AND ACCORDINGLY REQUESTED THE TRIBUNAL TO DEC IDE THE MISCELLANEOUS APPLICATION IN FAVOUR OF THE ASSESSE E. 34. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. ACTUALLY, THERE WERE TWO ISSUES FOR ADJ UDICATION BEFORE THIS TRIBUNAL IN THE APPEAL FILED BY ASSESSE E I.E., (I) VALIDITY OF JURISDICTION BY THE CIT BY INVOKING THE PROVISIONS OF SECTION 263 OF THE INCOME-TAX ACT, 1961 BY THE CIT AND (II) TREATMENT OF INCOME ARISING ON SALE OF SHARES ACQUI RED BY THE ASSESSEE AS INCOME FROM BUSINESS INSTEAD OF CAPITAL GAIN. THE TRIBUNAL AFTER CONSIDERING THE ENTIRE FACTS AND CIR CUMSTANCES OF THE CASE IT WAS HELD IN ITS ORDER CITED (SUPRA) THA T THE CIT VALIDLY INVOKED THE PROVISIONS OF SECTION 263 OF THE ACT AN D ALSO HELD THAT THE INCOME ARISING FROM THE SALE OF SHARES HAS TO BE ASSESSED AS 'INCOME FROM BUSINESS' INSTEAD OF 'CAPI TAL GAIN' AS CLAIMED BY THE ASSESSEE. 35. NOW, BEFORE US, THE ASSESSEE PLACED VARIOUS ARGUMEN TS TO RECALL THE ORDER OF THE TRIBUNAL CITED SUPRA. ACCO RDING TO THE LEARNED COUNSEL FOR THE ASSESSEE THE ORDER SUFFERED FROM VARIOUS INFIRMITIES AND IT HAS TO BE RECTIFIED/RECALLED. I N OUR OPINION, CONSIDERATION OF THE PRESENT ARGUMENTS OF THE COUN SEL FOR THE ASSESSEE AMOUNTS TO REVIEWING OF EARLIER TRIBUNAL O RDER RATHER M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 26 THAN RECTIFICATION. THE POWER SO CONFERRED ON THE TRIBUNAL TO RECTIFY AN ERROR APPARENT ON THE RECORD HAS A LIMIT ED APPLICATION. IT DOES NOT ENABLE THE TRIBUNAL TO REVERSE, REVISE OR REVIEW THE EARLIER ORDER OF THE TRIBUNAL BUT IT PERMITS ONLY S UCH ERROR WHICH IS ON THE FACE OF THE RECORD TO BE CORRECTED. HOWE VER, IT DOES NOT PERMIT TO REVIEW OR REWRITE THE ORDER OF THE TRIBUN AL. THE JURISDICTION U/S. 254(2) IS LIMITED TO RECTIFYING T HE ERROR WHICH IS PATENT, MANIFEST AND SELF-EVIDENT WHICH DOES NOT RE QUIRE ELABORATE DISCUSSION OF EVIDENCES OR ARGUMENTS TO E STABLISH IT. THE ARGUMENT OF THE ASSESSEE'S COUNSEL BEFORE US SU GGESTS THAT TO DISCOVER THE ERROR IN THE ORDER SAID TO HAVE CRE PT IN THE ORDER REQUIRES A LONG DRAWN PROCESS OF REASONING AND IT I S NOT A MISTAKE AT THE FACE OF THE RECORD. THE TRIBUNAL HA S TAKEN ONE POSSIBLE VIEW AND THAT CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. WHAT CAN BE RE CTIFIED U/S. 254(2) SHOULD BE APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR ENQUIRIES AR E NECESSARY. WHERE TWO VIEWS ARE POSSIBLE, THEN IT CANNOT BE SAI D TO BE A MISTAKE APPARENT ON RECORD. RECTIFICATION CAN BE D ONE ONLY WHEN A GLARING MISTAKE OF FACT OR LAW IS COMMITTED BY THE TRIBUNAL WHILE PASSING THE ORDER AND WHICH IS APPAR ENT FROM RECORD. RECTIFICATION IS NOT POSSIBLE WHEN THE ISS UE IS DEBATABLE. NO ERROR CAN BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF IT IS NOT SELF-EVIDENT OR REQUIRES EXAMINATION OR ARGU MENTS TO ESTABLISH IT. LENGTHY ARGUMENTS MADE BY THE ASSESS EE'S COUNSEL THEMSELVES SUGGEST THAT THE ISSUE IS DEBATABLE. TH E ERROR SAID TO HAVE CREPT IN THE ORDER CANNOT BE SAID TO BE A M ISTAKE APPARENT ON RECORD WHEN IT REQUIRES ELABORATE ARGUM ENTS THROUGH WHICH ONE COULD POINT OUT THE ERROR AND HER E IS A SUBSTANTIAL POINT OF LAW WHICH IS STARING AT ONES F ACE AND THERE COULD BE REASONABLY TWO OPINIONS POSSIBLE AND IT CA NNOT BE SAID A MISTAKE APPARENT ON RECORD TO RECTIFY U/S. 254(2) OF THE ACT. M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 27 THE PROVISIONS OF SECTION 254(2) ARE NOT TO REVIEW THE EARLIER ORDER AND AMEND IT WITH A VIEW TO RECTIFY ANY MISTA KE. ONLY VISIBLE MISTAKES COULD BE RECTIFIED U/S. 254(2) OF THE ACT. IF SUCH A MISTAKE IS A MISTAKE APPARENT ON THE FACE OF THE RECORD AS BROUGHT TO THE NOTICE OF THE TRIBUNAL, SECTION 254( 2) EMPOWERS THE TRIBUNAL TO CORRECT THE ORDER PASSED U/S. 254(1 ) OF THE ACT. RECTIFICATION OF AN ORDER DOES NOT MEAN OBLITERATIO N OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORD ER. 36. IN OUR OPINION, THE LEARNED COUNSEL FOR THE ASSESSE E SEEKS REVIEW OF THE EARLIER ORDER OF THE TRIBUNAL WHICH T RIBUNAL HAS NO POWER. IN THIS CASE THE TRIBUNAL AFTER CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE CAME TO CONCLUS ION THAT THE CIT VALIDLY INVOKED THE PROVISIONS OF SECTION 263 A ND ALSO HELD THAT INCOME ARISING ON SALE OF SHARES/UNITS IS 'IN COME FROM BUSINESS' AND IT IS NOT INCOME FORM 'CAPITAL GAIN S'. WHILE HOLDING SO, THIS TRIBUNAL DISCUSSED ALL THE CONTENT IONS RAISED BY THE PARTIES AND NOW REVIEWING OR RECALLING OF ORDER ON THE BASIS OF CERTAIN STRAY OBSERVATIONS WHICH ARE ALLEGED TO BE INCORRECT AS IT HAD NOT RELIED SOLELY ON THE SAID OBSERVATIONS I N COMING TO THE CONCLUSION. 37. IT IS WELL-SETTLED THAT THE TRIBUNAL IS THE FINAL F ACT-FINDING BODY. THE QUESTIONS WHETHER A PARTICULAR LOSS IS A TRADING LOSS OR A CAPITAL LOSS ARE PRIMARILY QUESTIONS TO BE DET ERMINED ON THE APPRECIATION OF FACTS. THE FINDINGS OF THE TRIBUNAL ON THESE QUESTIONS ARE NOT LIABLE TO BE INTERFERED WITH UNLE SS THE TRIBUNAL HAS TAKEN INTO CONSIDERATION ANY IRRELEVANT MATERIA L OR HAS FAILED TO TAKE INTO CONSIDERATION ANY RELEVANT MATE RIAL OR THE CONCLUSION ARRIVED AT BY THE TRIBUNAL IS PERVERSE I N THE SENSE THAT NO REASONABLE PERSON, ON THE BASIS OF THE FACT S BEFORE THE TRIBUNAL, COULD HAVE COME TO THE CONCLUSION TO WHIC H IT HAS COME. M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 28 38. IT IS EQUALLY WELL-SETTLED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERE LY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL B Y THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON TH E RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMEN T. IF ANY ONE, ON A FAIR READING OF THE ORDER OF THE TRIBUNAL, FIN DS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NO T TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCL USIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERF ERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY TH E TRIBUNAL ARE PERVERSE. 39. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S ORDER SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS C ONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORM ULA; IF THE ORDER OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO , THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUN AL. 40. THE TRIBUNAL CANNOT RECTIFY AN ORDER U/S. 254(2) ON THE BASIS OF RE-APPRAISAL OF FACTS THAT AMOUNT TO REVIE W OF THE ORIGINAL ORDER WHICH IS NOT PERMISSIBLE. IN THE PR ESENT CASE THE TRIBUNAL WENT INTO THE MERIT OF THE CONTENTIONS RAI SED BY THE PARTIES AT THE TIME OF HEARING OF THE APPEAL. NOW IT IS BARRED FROM REHEARING OR AMENDING ITS CONCLUSION ON MERIT. THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER U/S. 254(2) AND EVEN IF THERE IS A FAILURE TO CONSIDER ANY OF THE A RGUMENTS OF THE ASSESSEE'S COUNSEL THAT MAY CONSTITUTE AN ERROR OF JUDGEMENT BUT IT WAS NOT A MISTAKE APPARENT FOR THE PURPOSE O F SECTION 254(2) OF THE ACT. 41. THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STA TUTE, M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 29 HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISD ICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROV ISION DELINEATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORD ERS AS IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIF ICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THA T PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBU NAL HAS GOT AN INHERENT POWER OF RECTIFICATION OR REVIEW OR REV ISION. IT IS AXIOMATIC THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED; IT CANNOT BE INFERRED. UNLE SS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PA TENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CA NNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY A PR OCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APP ARENT FROM THE RECORD. IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW , AND ONE OF THE ALTERNATIVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD. UNLES S THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF-E VIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT TO REWRITE THE ORDER. 42. THAT AFTER TWO VIEWS ARE POSSIBLE ON A POINT OF LAW AND THE TRIBUNAL HAS ADOPTED ONE ALTERNATIVE, IT CANNOT BE SAID A MISTAKE APPARENT UNLESS THERE ARE MANIFEST ERRORS A ND SELF EVIDENT THE TRIBUNAL CANNOT RECALL ITS EARLIER ORDE R. SAME VIEW WAS TAKEN BY THE JURISDICTIONAL HIGH COURT IN THE C ASE OF CIT VS. DR. VED PRAKASH & ANR. (209 ITR 448) (AP) WHEREIN I T WAS HELD AS FOLLOWS: IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND O NE OF THE ALTERNATIVES IS ACCEPTED BY THE TRIBUNAL, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM TH E RECORD, UNLESS THERE ARE MANIFEST ERRORS WHICH ARE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 30 OBVIOUS, CLEAR AND SELF-EVIDENT, THE TRIBUNAL CANNO T RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REWRITE THE ORDER. A CHANGE OF OPINION BY THE TRIBUNAL CONSISTI NG OF THE SAME MEMBERS SHALL NOT JUSTIFY RECTIFICATION , NOR CAN FRESH THINKING BROUGHT IN BY NEW MEMBERS OF THE TRIBUNAL JUSTIFY REWRITING OF THE ORDER UNDER T HE GUISE OF RECTIFICATION. THE ONLY FACT THAT HAD THE SECOND SET OF MEMBERS HEARD THE APPEAL, THEY WOULD HAVE DECIDED IN FAVOUR OF THE ASSESSEE IS NOT A REASON FOR THEM TO RECALL AN ORDER ALLEGEDLY FOR TH E PURPOSE OF RECTIFICATION OF A MISTAKE. HELD, THAT, IN THE INSTANT CASE, THE TRIBUNAL HAD UPHELD THE ADDITIONAL INCOME ON THE GROUND THAT THERE WAS NO PROPER EXPLANATION REGARDING CASH CREDITS. SUBSEQUENTLY, THE TRIBUNAL RECALLED ITS EARLIER ORD ER. THE TRIBUNAL HAD NO JURISDICTION TO PASS THE IMPUGNED ORDER WHICH WAS IN THE NATURE OF REVIEW WHICH THE TRIBUNAL COULD NOT HAVE MADE U/S. 254(2). 43. IN THE CASE OF CIT VS. ITAT & ANR. 206 ITR 126 THE ANDHRA PRADESH HIGH COURT HELD AS UNDER: 'THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF I TS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIFICALLY CONFERRED ON TH E TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATI C THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED; IT CANNOT BE INFERRED. UNLE SS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE , THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF T HE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD T HAT M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 31 THE MISTAKE IS APPARENT FROM THE RECORD. UNLESS THE RE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SE LF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS OR DER IN AN ATTEMPT TO REWRITE THE ORDER.' 44. IN THE CASE OF CIT VS. EARNEST EXPORTS LTD. (323 IT R 577) (BOM) WHEREIN HELD AS FOLLOWS: THE POWER UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, IS CONFINED TO RECTIFICATION OF A MISTAK E APPARENT ON RECORD. THE TRIBUNAL MUST CONFINE ITSEL F WITHIN THOSE PARAMETERS. SECTION 254(2) IS NOT A CA RTE BLANCHE FOR THE TRIBUNAL TO CHANGE ITS OWN VIEW BY SUBSTITUTING A VIEW WHICH IT BELIEVES SHOULD HAVE BEEN TAKEN IN THE FIRST INSTANCE. SECTION 254(2) IS NOT A MANDATE TO UNSETTLE DECISIONS TAKEN AFTER DUE REFLECTION. THE SUPREME COURT HAS HELD IN HONDA SIE L POWER PRODUCTS V. CIT [2007] 295 ITR 466 THAT THE UNDERLYING PURPOSE OF SECTION 254(2) IS BASED ON TH E FUNDAMENTAL PRINCIPLE THAT A PARTY APPEARING BEFORE THE TRIBUNAL SHOULD NOT SUFFER ON ACCOUNT OF A MISTAKE COMMITTED BY THE TRIBUNAL. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNAL S MISTAKE, ERROR OR OMISSION, IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT AND IT HAS NOTHING TO DO W ITH THE CONCEPT OF THE INHERENT POWER TO REVIEW. THE SUPREME COURT HELD THAT THE TRIBUNAL WOULD BE REGARDED AS HAVING COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH IS ALREADY ON RECORD . HELD, ALLOWING THE APPEAL, THAT THE TRIBUNAL IN ITS EARLIER ORDER SPECIFICALLY DEALT WITH THE ORDERS OF THE AHMEDABAD AND MUMBAI BENCHES OF THE TRIBUNAL. THE TRIBUNAL HELD THAT THE ORDER OF THE AHMEDABAD BENCH WAS NOT RELEVANT TO THE ISSUE INVOLVED AND THAT THE ORDER OF THE MUMBAI BENCH CONTAINED NO DIRECT DISCUSSION REGARDING THE NATURE OF A DEPB LICENCE. THE TRIBUNAL HAD EVALUATED THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN IT ORIGINALLY DISMISSED THE APPEAL OF THE ASSESSEE AGAINST THE EXERCISE OF JURISDICTION UNDER SECTION 263 BY THE COMMISSIONER. THE ORDER DID NOT FALL WITHIN THE PARAMETERS OF SECTION 254(2). THE ORDER WAS NOT VALID. 45. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THE ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FO R THE M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 32 ASSESSEE TO RECALL OR RECTIFY THE EARLIER ORDER OF THE TRIBUNAL. 46. AS IS EVIDENCED FROM THE ARGUMENT OF THE ASSESSEE'S COUNSEL, THE GRIEVANCE EXPRESSED IS ABOUT THE CORRE CTNESS OF THE DECISION OF THE TRIBUNAL. WHETHER THE TRIBUNAL HAS DECIDED THE APPEAL IN ACCORDANCE WITH LAW OR WHETHER IT HAS EXC EEDED ITS JURISDICTION IS NOT A MATTER WHICH CAN BE DEBATED I N PROCEEDINGS U/S. 254(2) OF THE ACT. THE POWER OF THE TRIBUNAL U/S. 254(2) IS NOT A POWER TO REVIEW ITS OWN ORDER BUT ITS SCOPE I S LIMITED TO RECTIFICATION OF MISTAKES APPARENT FROM RECORD AND THE ISSUE WHICH CAN BE DECIDED BY LONG DRAWN PROCESS OF REASO NING OR DEBATE, DOES NOT FALL WITHIN THE AMBIT OF POWERS OF THE TRIBUNAL U/S. 254(2) OF THE INCOME-TAX ACT, 1961. WHETHER T HE TRIBUNAL EXCEEDED ITS JURISDICTION IN CONFIRMING THE ORDER O F THE CIT(A) ON A GROUND OTHER THAN THE ONE TAKEN BY THE CIT(A) IS NOT A MATTER WHICH CAN BE GONE INTO IN PROCEEDINGS U/S. 254(2) O F THE ACT. 47. THE TRIBUNAL HAVING SPECIFIC FINDINGS THAT INCOME O F THE ASSESSEE CHALLENGED BEFORE THE TRIBUNAL TO BE ASSES SED AS INCOME FROM BUSINESS AND NOT UNDER THE HEAD 'INCOME FROM CAPITAL GAIN' THERE WAS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL THAT FINDINGS GIVEN BY THE TRIBUNAL ON THI S POINT IS WRONG. 48. FURTHER THE TRIBUNAL HAVING DECIDED THE APPEAL AFTE R TAKING NOTE OF THE VARIOUS CASE LAWS RELIED UPON BY THE AR OF THE ASSESSEE AND GIVING REASONING WHY IT WAS NOT RELEVA NT TO CONSIDER THE SAME, THERE WAS NO MISTAKE APPARENT ON THE GROUND OF NON CONSIDERATION OF ANY ARGUMENTS OF THE ASSESSEE'S COUNSEL. 49. THE TRIBUNAL HAVING TAKEN A CONSCIOUS DECISION IN I TS ORDER AND CONCLUSION BASED IN ITS ORDER WAS NOT ON ANY M.A.NO.193/HYD/2011 SPECTRA SHARES & SCRIPTS PVT. LTD. ========================== 33 ERRONEOUS FACTS AND OR MISS-APPRECIATION OF FACTS O N RECORD AND THAT NO LEGAL CONTENTION GOING TO THE ROOT OF THE M ATTER REMAINS TO BE CONSIDERED. BEING SO, THE MISCELLANEOUS PETI TION FILED BY THE ASSESSEE SEEKING RECALL OF THE ORDER OF THE TRI BUNAL IS DEVOID OF MERIT. 50. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 16 TH MARCH, 2012 SD/- ASHA VIJAYARAGHAVAN JUDICIAL MEMBER SD/- CHANDRA POOJARI ACCOUNTANT MEMBER. HYDERABAD, DATED THE 16 TH MARCH, 2012 COPY FORWARDED TO: 1. M/S. SPECTRA SHARES & SCRIPS (P) LTD., 104/105, PAN COM BUSINESS CENTRE, AMEERPET, HYDERABAD. 2. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 3(2), HYDERABAD. 3. THE CIT-III, HYDERABAD. 4. THE DR, ITAT, HYDERABAD. TPRAO