Vyom Tradelink Pvt. Ltd., Ahmedabad V. The Dy. Commissioner of Income Tax, Circle-4(1)(2), Ahmedabad

MA 243/AHD/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5547 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 07-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: P M MEHTA
• Keywords: Opportunity of being heard; Source of fund; Set aside
• Section: 254(2); 64; 113; 43; 73; 13; 68; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER MA NO. 243/AHD/2018 (IN ./IN ITA NO.1340/AHD/2016) ( / ASSESSMENT YEAR : 2010-11) VYOM TRADELINK PVT. LTD. 8 TH FLOOR, SHIKHAR, NEAR ADANI HOUSE MITHAKHALI SIX ROADS NAVRANGPURA, AHMEDABAD. / VS. THE DCIT CENTRAL CIRCLE-4(1)(2) AHMEDABAD ./ ./ PAN/GIR NO. : ACQPA 2981 G ( / APPLICANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI P.M. MEHTA, AR / RESPONDENT BY : SHRI S.K. DEV, SR. DR / DATE OF HEARING 06/09/2019 !'# / DATE OF PRONOUNCEMENT 11/10/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE PRA YS TO RECTIFY THE MISTAKES APPARENT FROM THE RECORD IN THE ORDER PASS ED BY THE ITAT IN ITA NO. 1340/AHD/2016 FOR ASSESSMENT YEAR 2010-11 V IDE ORDER DATED 11.07.2018. THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION HAS S UBMITTED AS UNDER: 1. THE PRESENT MISC. APPLICATION ARISES FROM THE AFORESAID ORDER OF THE HON'BLE TRIBUNAL, UNDER WHICH THE APPEAL FILED BY T HE DEPARTMENT AGAINST MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 2 - ORDER DT 3-3-2016 PASSED BY LD. COMMISSIONER OF INC OME TAX [APPEALS]-IX, AHMEDABAD, WHEREBY THE ASSESSEE'S APPEAL IS PARTLY ALLOWED. 2. THE ONLY ISSUE RAISED BY THE DEPARTMENT WA S AGAINST THE FINDING OF LD. CIT [A] IN DELETING THE DISALLOWANCE OF RS. 61,04,7 13 OUT OF RS. 61,26,411 MADE BY A.O. HOLDING THAT RS. 16 CRORES RECEIVED BA CK FROM M/S ADANI POWER LTD. [APL FOR BREVITY] WAS ADVANCE TO M/S MIDEX OVE RSEAS LTD. [MOL FOR BREVITY], WHICH WAS EXCESS FUNDS AVAILABLE WITH THE COMPANY, IGNORING THE FACT THAT THE COMPANY CHARGED INTEREST FROM APL AS PER A DMISSION. 3. IN PARA 5 OF THE SAID ORDER, THE HON'BLE T RIBUNAL HAS REPRODUCED THE FINDING OF LD. CIT [A] IN PARA 7.3 AS UNDER:- 7.3 DURING THE APPELLATE PROCEEDINGS, APPELLANT HAS RELIED ON VARIOUS CASE LAWS SUCH AS MUNJAL SALES CORPORATION 298 1TR 298 (S. C.), TORRENT FINANCIERS V/S. ACIT 73 TTJ 624 (AHD. IT AT ), CIT V/S. RAGHUVIR SYNTHETICS LTD. 36 TAXMANN.COM 275 (GUJ) A ND OTHER DECISIONS. APPELLANT HAS ALSO SUBMITTED THAT IT HAD SHARE CAPITAL AND RESERVES & SURPLUS AMOUNTING TO RS.2.46 CRORES AS O N 31/3/2010 AND CURRENT LIABILITIES AMOUNTING TO RS.599.67 CRORES A S ON 31/3/2010. CONSIDERING SUBMISSION OF THE APPELLANT IN RESPECT OF AVAILABILITY OF ITS OWN FUNDS AS WELL AS RELIANCE PLACED BY THE APPELLA NT ON VARIOUS JUDGMENTS MENTIONED ABOVE, I AM OF THE CONSIDERED O PINION THAT AO WAS NOT JUSTIFIED IN DISALLOWING INTEREST OF RS.61, 26,411/- U/S.36(1)(III) OF THE ACT ON ACCOUNT OF INTEREST FREE ADVANCE TO M IDEX OVERSEAS LTD. HOWEVER, AS THE APPELLANT ITSELF SUBMITTED DURING T HE ASSESSMENT PROCEEDINGS THAT INTEREST ON RS.88 LACS AMOUNTING T O RS.21,698/- CAN BE DISALLOWED FOR THE REASON THAT THESE FUNDS WERE BOR ROWED ON INTEREST FROM ADITYA CORPEX @ 10%. ACCORDINGLY, A.O. IS DIRE CTED TO VERIFY THE CALCULATION MADE BY THE APPELLANT AT PARA 6.2 OF TH E ASSESSMENT ORDER AND I HEREBY DIRECT THE A.O. TO DISALLOW THE INTERE ST AS CALCULATED ON RS.88 LACS AS THE DISALLOWANCE U/S.36(1)(III) OF TH E ACT. REST OF THE AMOUNT I.E. RS.61,04,713/- (61,26,411-21,698) STAND S DELETED, SUBJECT TO CORRECT CALCULATION OF INTEREST ON RS.88 LACS BY TH E A.O. THUS, THIS GROUND OF APPEAL IS PARTLY ALLOWED. ' 4. ON PAGE 6 OF HON'BLE TRIBUNAL'S ORDER, IT IS MEN TIONED AS UNDER:- MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 3 - 'THE SOURCE OF FUNDS ADVANCED TO MOL WAS DULY EXPLA INED IN THE ASSESSMENT PROCEEDINGS. IT WAS SUBMITTED THAT LOANS AND ADVANCES WERE GIVEN TO MOL OUT OF MONEY RECEIVED FROM ADANI POWER LTD. THUS, THERE WAS A NEXUS BETWEEN THE MONEY RECEIVED FROM ADANI P OWER LTD. AND THE LOANS AND ADVANCES EXTENDED TO MOL.' IN PARA 6, PAGE 6 OF THE ABOVE ORDER, THE FINDING O F THE HON'BLE TRIBUNAL START WHEREIN [AT THE BOTTOM OF SAID PAGE-6], IT IS OBSER VED AS UNDER:- '.........................IT IS AN UNDISPUTED FACT THAT THE ASSESSES WAS PAYING INTEREST ON BORROWED FUNDS. THE OWN CAPITAL OF THE ASSESSEE ITS BALANCE SHEET AS ON 31-3-2010 WAS SHOWN AT RS. 2,46,30,404 ON, THUS, FROM THE ABOVE, THERE REMAINS NO DOUBT THAT INTEREST FN ADVA NCE WAS MADE BY ASSESSEE BESIDES THE OWN FUNDS. THE L COUNSEL OF THE ASSESSEE BEFORE US CLAIMED THAT THERE WAS AN INTERE FREE FUND AVAILABL E WITH THE ASSESSEE IN FORM OF CURRENT LIABILITIES TO TL TUNE OF RS. 599.6 7 CRORES OUT OF WHICH SUCH ADVANCES WERE MADE MOL.' IT IS RESPECTFULLY SUBMITTED THAT THERE IS A MISTAK E APPARENT ON RECORD IN THE AFORESAID ORDER IN REGARD TO THE FACT THAT NARRATIO N OF FACT ON PAGE 6 IN THE ORDER OF HON'BLE TRIBUNAL IS AS UNDER:- 'IT WAS SUBMITTED THAT LOANS AND ADVANCES WERE GIVE N TO M/S MIDEX OVERSEAS LTD OUT OF MONEY RECEIVED FROM APL. THUS, THERE WAS A NEXUS BETWEEN THE MONEY RECEIVED FROM APL AND THE LOANS A ND ADVANCES EXTENDED TO M/S MIDEX OVERSEAS LTD.' CONSIDERING THE ABOVE FACT, THE FINDING GIVEN BY HO N'BLE TRIBUNAL IN PARA 6 IS AS UNDER:- '.........................IT IS AN UNDISPUTED FACT THAT THE ASSESSEE WAS PAYING INTEREST ON BORROWED FUNDS. THE OWN CAPITAL OF THE ASSESSEE IN ITS BALANCE SHEET AS ON 31-3-2010 WAS SHOWN AT RS. 2,46 ,30,404 ONLY THUS, FROM THE ABOVE, THERE REMAINS NO DOUBT THAT INTEREST FREE ADVANCES WERE MADE BY ASSESSEE BESIDES THE OWN FUNDS. THE LD. COUNSEL OF THE ASSESSEE BEFORE US CLAIMED THAT THERE WAS AN INTERE ST FREE FUND AVAILABLE WITH THE ASSESSEE IN FORM OF CURRENT LIABILITIES TO THE TUNE OF RS. 599.67 MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 4 - CRORES OUT OF WHICH SUCH ADVANCES WERE MADE TO M/S MIDEX OVERSEAS LTD.' IT IS SUBMITTED THAT THE FINDING IN THE ABOVE PARA MARKED DARK-BOLD IS A SELF CONTRADICTORY FINDING TO THE EXTENT THAT HAVING EXP LAINED THE DIRECT SOURCE OF THE MONEY ADVANCED TO MOL, THERE IS NO QUESTION OF CONCLUDING THAT THE SAID INTEREST FREE ADVANCES WERE MADE BY ASSESSEE BESIDE S THE OWN FUNDS AND AT THE TIME OF HEARING AN ALTERNATIVE PLEA WAS RAISED BY A SSESSEE THAT THE SAID ADVANCES TO MOL WERE GIVEN OUT OF THE INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE IN FORM OF CURRENT LIABILITIES TO THE TUNE OF RS. 599.67 CRORES. 5. IN FINDING GIVEN BY HON'BLE TRIBUNAL THAT:- 'THERE WAS NO CASH FLOW STATEMENT FILED BY ASSESSEE TO PROVE THAT SUNDRY CREDITORS FUNDS WERE USED IN ADVANCING THE L OANS TO MOL.' IT IS SUBMITTED THAT ASSESSEE HAD SUBMITTED THE LED GER ACCOUNTS OF BOTH MOL AS WELL AS APL, ON PAGES 58 & 59 OF COMPILATION, WHERE BY ASSESSEE EXPLAINED THAT MONEY OF RS. 25 CRORES WAS RECEIVED BY ASSESSE E FROM APL ON 8-6-2009 [REFER PAGE 59] AND ASSESSEE HAD ADVANCE MONEY OF R S. 16 CRORES ON 11-6- 2009 TO MOL [REFER PAGE-58]. THUS, THE ADVANCES TO MOL WERE GIVEN FROM THE FUNDS RECEIVED FROM APL AND THERE WAS A DIRECT NEXU S WHICH FACT IS ALSO NARRATED BY THE HON'BLE TRIBUNAL ON PAGE 4 OF ITS A BOVE REFERRED ORDER. HAVING EXPLAINED THE DIRECT SOURCE OF ADVANCES GIVE N BY THE ASSESSEE, THE QUESTION OF FURNISHING CASH FLOW STATEMENT FOR PROV ING THAT SUNDRY CREDITORS' FUNDS WERE USED IN ADVANCING LOAN TO MOL, DOES NOT SURVIVE. THEREFORE, IN OUR HUMBLE SUBMISSION, THE HON'BLE TRIBUNAL HAS BASED I TS FINDING IN DISMISSING ASSESSEE'S APPEAL ON THE ABOVE REFERRED INCORRECT P RESUMPTION. 6. MOREOVER, ON PAGE 9 OF ITS ORDER, THE HON' BLE TRIBUNAL IN LAST PARA HAS GIVEN ITS FINDING AS UNDER:- 'WE ALSO NOTE THAT COURTS HAVE HELD THAT THE SUNDRY CREDITORS CANNOT FORM PART OF THE OWN FUNDS OF THE ASSESSEE. IN THIS CONNECTION, WE FIND SUPPORT AND GUIDANCE FROM THE JUDGEMENT OF HON'BLE HIGH COURT OF BOMBAY IN CASE OF CIT V. DOCTOR & CO. REPORTED IN 1 80 ITR 627.......' AND THE FINDING OF THE SAID DECISION IS REPRODUCED BY THE HON'BLE TRIBUNAL ON PAGE 10 OF ITS ORDER. IT IS RESPECTFULLY SUBMITTED THAT DURING THE COURSE OF MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 5 - HEARING, THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO T RAISED THE ISSUE REGARDING THE ADVANCES GIVEN BY ASSESSEE TO MOL OUT OF SUNDRY CREDITORS AND AS SUCH, THE DECISION RELIED UPON BY THE HON'BLE TR IBUNAL IN ITS FINDING IN CASE OF CIT V. DOCTOR & CO. [SUPRA] WAS NEVER CONFRONTED TO THE ASSESSEE AND THEREFORE, NO OPPORTUNITY OF DISTINGUISHING THE SAI D CASE OF CIT V. DOCTOR & CO. ON WHICH RELIANCE WAS PUT FORTH BY THE HON'BLE TRIBUNAL FOR COMING TO A CONCLUSION THAT THE SUNDRY CREDITORS CANNOT BE INTE REST FREE FUNDS AVAILABLE TO THE ASSESSEE. WE WOULD LIKE TO BRING TO YOUR HONOURS' KIND NOTICE THAT IN CASE OF DOCTOR & CO. [SUPRA], THE FACTS OF THE CASE WERE AS UNDER:- ] 'THE ASSESSEE FIRM HAD BORROWED MONIES FROM DIFFERE NT PERSONS IN THE PREVIOUS YEARS RELEVANT TO THE ASSESSMENT YEARS 196 7-68 AND 1968-69 ON INTEREST AND THAT A PART OF SO BORROWED AMOUNT WAS ADVANCED TO ITS SISTER CONCERNS FREE OF INTEREST. YOUR HONOURS HAVE REPRODUCED THE FINDING OF BOMBAY HIGH COURT IN CASE OF DOCTOR & CO. ON PAGE-10 OF THE SAID ORDER WHICH CLE ARLY SHOWS THAT THE FINDING OF BOMBAY HIGH COURT WAS BASED ON TWO REASO NS AS UNDER- IN THE FIRST PLACE, JUST AS THERE WERE SUNDRY CRED ITORS TO WHOM NO INTEREST WAS PAID, THERE WOULD BE SUNDRY DEBTORS FR OM WHOM NO INTEREST WAS RECEIVED. SECONDLY, THE AMOUNT ADVANCED TO IT S SISTER CONCERNS ON ASSESSEE'S OWN ADMISSION, WAS AT/EAST PARTLY OUT OF BORROWED FUNDS. THEREFORE, THE TRIBUNAL WAS NOT JUSTIFIED IN DELETI NG THE DISALLOWANCE OF INTEREST MAINTAINED BY THE /A/AC. THE VIEW TAKEN B Y AAC IN THIS REGARD WAS CORRECT.' FROM THE ABOVE, YOUR HONOURS WILL APPRECIATE THAT T HE DECISIONS RELIED UPON BY YOUR HONOURS ARE CLEARLY DISTINGUISHABLE AND CAN NOT BE MADE APPLICABLE IN ASSESSEE'S CASE, AS THERE IS A SPECIFIC FINDING OF THE LD. CIT [A] THAT ADVANCE OF RS. 16 CRORES GIVEN TO MOL WAS NOT GIVEN OUT OF BOR ROWED FUNDS. 7. MOREOVER, THE FINDING REACHED BY HON'BLE T RIBUNAL ON PAGE 10 OF ITS ORDER AFORESAID, AGAINST WHICH THIS MA IS PREFERRED , IS AS UNDER:- MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 6 - 'THEREFORE, THE AMOUNT OF INTEREST ON THE BORROWED FUNDS DIVERTED TO NON INTEREST BEARING ADVANCES SHOULD BE DISALLOWED. ACCORDINGLY, WE ARE INCLINED TO REVERSE THE ORDER OF LD. CIT [A] AN D RESTORE THE ORDER OF THE A. O. HENCE, THIS GROUND OF APPEAL OF REVENUE I S ALLOWED.' IT IS RESPECTFULLY SUBMITTED THAT THE ABOVE REFERRE D FINDING GIVEN BY HON'BLE TRIBUNAL IS INCORRECT, AS THE LD. CIT [A], HAVE GIV EN THE SPECIFIC FINDING IN PARA 7.2 THAT THAT:- 'HENCE, THE ADVANCE OF RS.16 CRORES WAS NOT GIVEN O UT OF BORROWED FUNDS. ' MOREOVER, NO EVIDENCE HAS BEEN ADDUCED BY THE DE PARTMENT TO REBUT THE ABOVE FINDING OF FACT. 8. ON PAGE-6 OF THE. SAID ORDER OF HON'BLE TR IBUNAL, YOUR HONOURS HAVE MENTIONED:- 'THE LD. AR VEHEMENTLY SUPPORTED THE OR DER OF THE LD. CIT [A]'. ON PERUSAL OF LD. CIT [A]'S ORDER, IN PARA 7.3, THE LD.CIT [A] HAS QUOTED THAT DURING THE APPELLATE PROCEEDINGS, THE APPELLANTHAS RELIED UPON VARIOUS CASE LAWS SUCH AS MUNJAL SALES CORPORATION 298 ITR 298 [ S.C.], TORRENT FINANCIERS V. ACIT 73 TTJ 624 [AHD ITAT], CIT V. RA GHUVIR SYNTHETICS LTD. 36 TAXMANN.COM 275 [GUJ.] - 354 ITR 222 [GUJ.] AND OTHER DECISIONS. FOR THIS, WE HAVE TO BRING TO YOUR HONOURS' KIND NOTICE THAT BEFORE THE LD. CIT [A], THE ASSESSEE HAS RELIED UPON NOT ONLY THE CASE OF T ORRENT FINANCIERS BUT OTHER DECISIONS ALSO, WHICH ARE QUOTED ON PAGES 20, 21, 2 2 AND 23 OF LD CIT [AJ'S ORDER, WHICH ALSO INCLUDE THE DECISIONS OF HON'BLE HIGH COURT OF GUJARAT IN CASE OF CIT V. RAGHUVIR SYNTHETICS [SUPRA], THE DEC ISION OF HON'BLE HIGH COURT OF GUJARAT IN CASE OF CIT V. AAMOD STAMPING {P} LTD . AND THE DECISION OF HON'BLE SUPREME COURT IN CASE OF HERO CYCLES P. LTD . V. CIT AND THE LD. CIT [A] HAVE ALSO DISCUSSED IN DETAIL, THOSE CASES. BUT WHILE DECIDING THE ISSUE, YOUR HONOURS HAVE CONSIDERED ONLY THE CASE OF TORRE NT FINANCIERS AND THE OTHER DECISIONS RELIED UPON BY THE ASSESSEE BEFORE LD. CIT [A] HAVE NOT BEEN TAKEN INTO CONSIDERATION WHILE DECIDING THE ISSUE A GAINST THE ASSESSEE. THUS, IT IS CLEAR THAT VARIOUS DECISIONS RELIED UPON BY ASSE SSEE HAVE NOT BEEN TAKEN INTO CONSIDERATION WHILE DECIDING THE ISSUE AGAINST THE ASSESSEE. SO THIS BEING A MISTAKE APPARENT ON RECORD U/S. 254[2] OF THE I. T. ACT, THE ORDER PASSED BY YOUR HONOURS REQUIRES TO BE RECALLED. MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 7 - 9. IN THIS REGARDS, THE APPLICANT WANTS TO PLA CE RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS WHEREIN IT HAS HELD: [2014] 42 TAXMANN.COM 98 (GUJARAT) HIGH COURT O F GUJARAT APEX THERM PACKAGING (P.) LTD. V. INCOME-TA X OFFICER, HELD AS UNDER: SECTION 254, READ WITH SECTION 68, OF THE INCOME-TA X ACT, 1961 - APPELLATE TRIBUNAL - ORDERS OF [NON-CONSIDERATION O F JUDICIAL PRECEDENTS] - ASSESSMENT YEAR 2006-07 - IN COURSE O F APPELLATE PROCEEDINGS BEFORE TRIBUNAL, ASSESSEE CHALLENGED AD DITION MADE UNDER SECTION 68 BY RELYING UPON NUMBER OF DECISIONS OFJU RISDICTIONAL HIGH COURT - HOWEVER, TRIBUNAL DID NOT DEAL WITH ANY OF THOSE DE CISIONS WHILE PASSING IMPUGNED ORDER CONFIRMING ADDITION -W HETHER ON FACTS, IMPUGNED ORDER PASSED BY TRIBUNAL WAS TO BE SET ASI DE AND, MATTER WAS TO BE REMANDED BACK FOR DISPOSAL AFRESH - HELD, YES [PARA 7] [MATTER REMANDED] (2014) 41 TAXMANN.COM 360 (GUJARAT) HIGH COUR T OF GUJARAT DATTANI AND CO. V. INCOME TAX OFFICER, HELD AS UNDER: SECTION 254 OF THE INCOME-TAX ACT, 1961 - APPELLATE TRIBUNAL - ORDER OF [DUTIES OF TRIBUNAL] - WHETHER WHENEVER ANY DECISION HAS BEEN RELIED UPON AND/OR CITED BY ASSESSEE AND/OR ANY PARTY, TRI BUNAL IS BOUND TO CONSIDER AND/OR DEAL WITH SAME AND OPINE WHETHER IN FACTS AND CIRCUMSTANCES OF PARTICULAR CASE, SAME WILL BE APPL ICABLE OR NOT - HELD, YES - WHETHER, THEREFORE, WHERE TRIBUNAL WHIL E DISPOSING OF APPEAL, FAILED TO CONSIDER APPLICABILITY OF A DECIS ION CITED BY ASSESSEE, IMPUGNED ORDER PASSED BY TRIBUNAL WAS TO BE SET ASI DE AND, MATTER WAS TO BE REMANDED BACK FOR DISPOSAL AFRESH - HELD, YES [PARA 4] [MATTER REMANDED] HON'BLE BOMBAY H.C IN CASE OF AMORE JEWELS PVT L TD V/S THE DCIT VIDE W.P NOS 1833 OF 2018, DATED 03.08.18 HELD AS UNDER: '... 6. WE FIND THAT, THOUGH THE ORDER DATED 13.02. 15 DOES RENDER A FINDING THAT NO POSITIVE MATERIAL WAS BROUGHT ON RECORD, TH ERE IS NO DISCUSSION WHATSOEVER OF THE VARIOUS CASE LAWS DETA ILED IN THE MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 8 - SUBMISSIONS WHICH ACCORDING TO THE PETITIONER CLINC HES THE ISSUES IN SUPPORT OF ITS CASE THAT THE SHAREHOLDING INVESTMEN T BY THE JIVE COMPANIES WERE GENUINE. IN THE ABOVE VIEW, THE TRIB UNAL OUGHT TO HAVE ALLOWED THE PETITIONER'S RECTIFICATION APPLICA TION AND CONSIDERED THE PETITIONER'S APPEAL BEFORE IT ON MERITS, INIER- ALIA, TAKING INTO ACCOUNT THE MATERIAL AND CASE LAWS WHICH HAS BEEN A LREADY FILED BY THE PETITIONER DURING THE HEARING LEADING TO THE OR DER DATED 13.02.15. ...7. IN VIEW OF THE PECULIAR FACTS OF THE PRESENT CASE, WE ARE NOT ONLY SETTING ASIDE THE IMPUGNED ORDER DATED 04.05.18 BUT ALSO ORDER DATED 13.02.18 TO THE EXTENT IT DISMISSED THE PETITIONER' S APPEAL BEFORE IT. THIS FOR THE REASON THAT WE FIND THE DATED 13.02.15 IN THE CONTEXT OF THE MATERIAL AVAILABLE ON RECORD, TO BE A NON-SPEAK ING ORDER AS IT GIVES NO REASONS TO REJECT THE APPEAL IN THE CONTEXT OF T HE DECISIONS ADMITTEDLY RELIED UPON AT THE HEARING BY THE PETITI ONERS. 10. IN THE BACKDROP OF THE LEGAL AND FACTUAL PO SITION EXPLAINED ABOVE, IT IS HUMBLY SUBMITTED THAT THERE IS A MISTAKE APPARENT O N RECORD IN THE IMPUGNED ORDER OF THE HON'BLE TRIBUNAL, WITHIN THE MEANING O F SECTION 254[2] OF THE INCOME TAX ACT, 1961 AND THEREFORE, IT IS PRAYED TH AT THE IMPUGNED ORDER OF THE HON'BLE TRIBUNAL MAY PLEASE BE VACATED AND THE APPEAL MAY BE RESTORED FOR DE-NOVO DISPOSAL AND FOR FRESH HEARING IN ACCOR DANCE WITH LAW. AND FOR THIS ACT OF KINDNESS, THE APPLICANT AS IS DUTY BOUND SHALL EVER REMAIN OBLIGED. FOR VYOM TRADELINK P. LTD PLACE: AHMEDABAD SD/- DATE : 23.08.2018 DIRECTOR [SEAL] ON THE OTHER HAND, LD. DR VEHEMENTLY SUPPORTED THE ORDER OF HONBLE ITAT. 2. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION S AND GONE THROUGH THE RECORDS CAREFULLY. THE PROVISION OF SUB-SECTION 2 O F SECTION 254 OF THE MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 9 - ACT HAS DIRECT BEARING ON THE CONTROVERSY BEFORE US . THEREFORE IT IS IMPERATIVE UPON US TO TAKE NOTE OF THE RELEVANT PAR T OF SECTION, WHICH READS AS UNDER: ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (1A) [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 63 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED] , WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD 64 , AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND 64 SHALL MAKE SUCH AMENDMENT 64 IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASS ESSEE OR THE 65 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECT ION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORT UNITY OF BEING HEARD 3. BEFORE WE EMBARK UPON AN ENQUIRY ON THE FACTS OF PRESENT CASE IN ORDER TO FIND OUT WHETHER THERE IS ANY APPARENT ERR OR COMMITTED BY TRIBUNAL OR NOT WHILE ADJUDICATING THE APPEALS, WE THINK IT APPROPRIATE TO BEAR IN MIND CERTAIN BASIC PRINCIPLES FOR EXERCISIN G THE POWERS CONTEMPLATED IN SECTION 254(2) OF THE ACT IN THE LI GHT OF VARIOUS JUDGMENTS OF HONBLE SUPREME COURT AS WELL AS HONB LE HIGH COURT EXPOUNDING THE SCOPE OF EXERCISING POWERS UNDER SEC TION 254(2) OF THE ACT. WE DO NOT DEEM IT NECESSARY TO RECITE AND REC APITULATE ALL OF THEM, MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 10 - BUT SUFFICE TO SAY THAT CORE OF ALL THESE AUTHORITA TIVE PRONOUNCEMENTS IS THAT POWER FOR RECTIFICATION UNDER SECTION 254(2) O F THE ACT CAN BE EXERCISED ONLY WHEN MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARG UMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THER E MAY CONCEIVABLY BE TWO OPINIONS. FOR FORTIFYING THIS VIEW, WE MAKE REFERENCE TO THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LD., 262 ITR 146 WH ICH HAS BEEN UPHELD BY THE HONBLE SUPREME COURT REPORTED IN 305 ITR 227. THE HONBLE COURT HAS LAID DOWN FOLLOWING PROPOSITION W HILE CONCLUDING THE JUDGMENT: '(A) THE TRIBUNAL HAS POWER TO RECTIFY A MISTAKE AP PARENT FROM THE RECORD ON ITS OWN MOTION OR ON AN APPLICATION BY A PARTY UNDER S. 254(2) OF THE ACT; (B) AN ORDER ON APPEAL WOULD CONSIST OF AN ORDER MA DE UNDER S. 254(1) OF THE ACT OR IT COULD BE AN ORDER MADE UNDER SUB-S . (1) AS AMENDED BY AN ORDER UNDER SUB-S. (2) OF S. 254 OF THE ACT; (C) THE POWER OF RECTIFICATION IS TO BE EXERCISED T O REMOVE AN ERROR OR CORRECT A MISTAKE AND NOT FOR DISTURBING FINALITY, THE FUNDAMENTAL PRINCIPLE BEING THAT POWER OF RECTIFICATION IS FOR JUSTICE AND FAIR PLAY; (D) THAT POWER OF RECTIFICATION CAN BE EXERCISED EV EN IF A MISTAKE IS COMMITTED BY THE TRIBUNAL OR EVEN IF A MISTAKE HAS OCCURRED AT THE INSTANCE OF PARTY TO THE APPEAL; (E) A MISTAKE APPARENT FROM RECORD SHOULD BE SELF-E VIDENT, SHOULD NOT BE A DEBATABLE ISSUE, BUT THIS TEST MIGHT BREAK DOW N BECAUSE JUDICIAL OPINIONS DIFFER AND WHAT IS A MISTAKE APPARENT FROM THE RECORD CANNOT MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 11 - BE DEFINED PRECISELY AND MUST BE LEFT TO BE DETERMI NED JUDICIALLY ON THE FACTS OF EACH CASE; (F) NON-CONSIDERATION OF A JUDGMENT OF THE JURISDIC TIONAL HIGH COURT WOULD ALWAYS CONSTITUTE A MISTAKE APPARENT FROM THE RECORD, REGARDLESS OF THE JUDGMENT BEING RENDERED PRIOR TO OR SUBSEQUE NT TO THE ORDER PROPOSED TO BE RECTIFIED; (G) AFTER THE MISTAKE IS CORRECTED, CONSEQUENTIAL O RDER MUST FOLLOW AND THE TRIBUNAL HAS POWER TO PASS ALL NECESSARY CONSEQ UENTIAL ORDERS.' 4. IN THE LIGHT OF THE ABOVE DISCUSSION WE PROCEE D TO ADJUDICATE ISSUES RAISED BY THE ASSESSEE. THE 1 ST FOLD OF CONTENTION OF THE ASSESSEE IS THAT THE ITAT HAS GIVEN CONTRADICTORY FINDING THAT LOANS AND ADVANCES WERE GIVEN OUT OF THE MONEY RECEIVED FROM APL AND THERE WAS NOT SUFFICIENT FUND. AS PER THE LD. AR, ONCE THE FINDING BY THE IT AT HAS BEEN GIVEN THAT ADVANCE WAS MADE OUT OF THE MONEY RECEIVED BAC K FROM APL, THEN THE NEXUS GETS ESTABLISHED. ACCORDINGLY, THERE NO R EASON TO HOLD THAT MONEY HAS BEEN ADVANCED TO MOL BESIDES THE OWN FUND . IN THIS REGARD, WE NOTE THAT THAT THERE WAS NO INFO RMATION AVAILABLE ON RECORD WHETHER THERE WAS ANY INTEREST FREE FUND AVA ILABLE INCLUDING THE MONEY RECEIVED FROM APL. ACCORDINGLY, IT WAS INFERR ED THAT THE INTEREST FREE ADVANCE WAS MADE BESIDES THE OWN FUND. THUS WE DO NOT FIND ANY INFIRMITY/APPARENT MISTAKE IN THE ORDER OF THE ITAT . MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 12 - 5. THE 2 ND GRIEVANCE OF THE ASSESSEE IS THAT THERE WAS AVAILA BLE THE INFORMATION ABOUT THE SOURCE OF FUND WHICH WAS ADVA NCED TO MOL. THEREFORE, THERE WAS NO NEED TO PROVIDE THE CASH FL OW STATEMENT. THUS, THE FINDING OF THE HONBLE ITAT IS ERRONEOUS IN HOL DING THAT THERE WAS NO CASH FLOW STATEMENT FILED BY THE ASSESSEE. ADMITTEDLY, THE ASSESSEE EXPLAINED THAT THE FUND RE CEIVED FROM APL FOR RS. 25 CRORES WAS USED TO ADVANCE TO M/S MOL FOR 16 CRORES. HOWEVER, WE NOTE THAT THERE WAS NO INFORMATION PROVIDED BY T HE ASSESSEE WHETHER THE AMOUNT RECEIVED FROM APL WAS INTEREST-FREE. FUR THERMORE, THE ASSESSEE CLAIMED THAT IT HAD CURRENT LIABILITIES TO THE TUNE OF 599.67 CRORES TO JUSTIFY THE INTEREST-FREE ADVANCE TO M/S MOL. BUT, THERE WAS NO INFORMATION PROVIDED WHETHER SUCH CURRENT LIABILITI ES REPRESENTS THE MONEY TAKEN OR AGAINST THE PURCHASES/EXPENSES ETC. THEREFORE, THE ALTERNATE PLEA TAKEN BY THE ASSESSEE WAS REJECTED I N THE ABSENCE OF CASH FLOW STATEMENT. ON THIS COUNT, WE DO NOT FIND ANY E RROR IN THE ORDER OF THE ITAT. 6. THE 3 RD GRIEVANCE OF THE ASSESSEE IS THAT THE ITAT HAS REL IED ON THE JUDGMENT OF HONBLE HIGH COURT OF BOMBAY IN THE CAS E OF CIT VERSUS DR & CO REPORTED IN 180 ITR 627 WITHOUT CONFRONTING TH E SAME. IN THIS REGARD, WE NOTE THAT THE ITAT IN ITS FINDIN G HAS NOT PLACED RELIANCE ON THE AFORESAID JUDGMENT OF THE HONBLE BOMBAY HIG H COURT (SUPRA) . IN MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 13 - FACT, THE ITAT HAS DRAWN SUPPORT FROM THE SAID JUDG MENT OF BOMBAY HIGH COURT TO STRENGTHEN ITS FINDING. AS SUCH THE D ECISION OF THE ITAT WAS NOT BASED ON THE PRINCIPLES LAID DOWN BY THE BO MBAY HIGH COURT. ON THIS COUNT, WE DO NOT FIND ANY ERROR IN THE ORDE R OF THE ITAT. 7. THE 4 TH GRIEVANCE OF THE ASSESSEE AS MENTIONED IN PARA 7 O F MA THAT THE FINDING OF THE ITAT IS INCORRECT AS THERE WAS N O EVIDENCE ADDUCED BY THE REVENUE SUGGESTING THAT THE BORROWED FUND HAS B EEN DIVERTED. IN THIS REGARD WE NOTE THAT THERE WAS NO NEED TO REFER ANY ADDITIONAL DOCUMENTARY EVIDENCE AS SUFFICIENT FACTS WERE EMANA TING FROM THE ORDER OF THE AUTHORITIES BELOW TO HOLD THAT THE OWN FUND OF THE ASSESSEE EXCLUDING THE CURRENT LIABILITIES WAS MUCH LESS THA N THE AMOUNT ADVANCED WITHOUT CHARGING ANY INTEREST. THEREFORE, WE DO NOT FIND ANY ERROR APPARENT FROM RECORD IN THE FINDING OF THE ITAT AS ALLEGED BY THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION. 8. THE 5 TH GRIEVANCE OF THE ASSESSEE IS THAT THERE WERE CERTA IN JUDGMENTS REFERRED TO THE CIT (A) AND ACCORDINGLY T HE LEARNED CIT (A) WAS PLEASED TO DELETE THE ADDITION MADE BY THE AO. IN THIS REGARD WE NOTE THAT THE ITAT IN ITS FINDING HAS REPRODUCED THE ORD ER OF THE LEARNED CIT (A) AND DRAWN IS CONCLUSION AFTER CONSIDERING THE S AME. THEREFORE, SIMPLY NON-DISCUSSION OF THE JUDGMENTS REFERRED TO THE LEARNED CIT (A), IN THE ORDER OF THE ITAT DOES NOT LEAD TO HOLD THAT THE ORDER OF THE ITAT ERRONEOUS, WHICH IS APPARENT FROM RECORD. MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 14 - THERE CAN BE AN ERROR OF JUDGMENT IN THE ORDER OF I TAT, BUT THE TRIBUNAL CAN NOT RECTIFY THE SAME. OTHERWISE, IT WILL AMOUNT TO REVIEW ITS OWN ORDER. IN HOLDING SO, WE FIND SUPPORT & GUIDANCE FR OM THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT(EXEMP TION) VS. GUJARAT INSTITUTE OF HOUSING ESTATE DEVELOPERS REPORTED IN 84 TAXMANN.COM 148 WHEREIN IT WAS HELD AS UNDER: 4. IN THE PRESENT CASE, AS NOTED THE TRIBUNAL HAD GIVE N DETAILED REASONS FOR COMING TO THE CONCLUSION THAT THE PRINC IPLE OF MUTUALITY WOULD NOT APPLY. WHILE ACCEPTING THE ASSESSEE'S REC TIFICATION APPLICATIONS, THE TRIBUNAL UNDERTOOK EQUALLY PAINST AKING AND ELABORATE CONSIDERATION OF THE VERY SAME ISSUES AND VERY SAME FACTS TO COME TO A CONTRARY CONCLUSION. IT IS NOT NECESSARY NOR POSSIB LE FOR US TO HOLD WHETHER THE TRIBUNAL'S FIRST VIEW WAS CORRECT OR TH E SUBSEQUENT ONE. IT IS ENOUGH TO HOLD THAT THE TRIBUNAL COULD NOT HAVE UND ERTAKEN SUCH INCISIVE AND DETAILED EXAMINATION OF FACTS AND LAW TO COME TO THE CONCLUSION WHICH ARE COMPLETELY CONTRARY TO ITS OWN CONCLUSION ARRIVED AT AFTER DETAILED CONSIDERATIONS. SUCH POWERS SIMPL Y DO NOT FLOW FROM THE POWER OF RECTIFICATION UNDER SUB-SECTION (2) OF SECTION 254 OF THE ACT. 5. UNDER THE CIRCUMSTANCES, IN OUR OPINION THE TRIBUNA L COMMITTED A SERIOUS ERROR IN ALLOWING THE ASSESSEE'S RECTIFICAT ION APPLICATIONS AND RECALLING ITS EARLIER ORDER OF REJECTION OF APPEALS . THE IMPUGNED ORDER DATED 29.07.2016 IS THEREFORE SET ASIDE. CONSEQUENT LY, THE ORDER PASSED BY THE TRIBUNAL OF ALLOWING ALL THE TAX APPEALS OF THE ASSESSEE BY ORDER DATED 25.11.2016 WOULD THEREFORE AUTOMATICALLY BE R ENDERED NON-EST. RESULTANTLY, THE TRIBUNAL'S ORIGINAL ORDER DATED 29 .09.2015 WOULD BE RESTORED. NEEDLESS TO STATE THAT THE ASSESSEE FEELI NG AGGRIEVED BY THE SAID ORDER, IT WILL ALWAYS BE OPEN FOR THE ASSESSEE TO FILE TAX APPEALS. THE INTERVENING FACTS AND CIRCUMSTANCES WOULD CERTA INLY BE RELEVANT IN THE CONTEXT OF TECHNICAL DELAY IF ANY THAT MAY ARIS E IN THE PROCESS OF FILING SUCH TAX APPEALS. MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 15 - IN THIS REGARD, WE ALSO DRAW SUPPORT AND GUIDANCE F ROM THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF RAMESH ELECTRIC & TRADING COMPANY REPORTED IN 77 TAXMAN 43 WHEREIN IT WAS HELD AS UND ER: THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE INCOME-TAX ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY AN Y MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS ME RELY A POWER OF AMENDING ITS ORDER. IN THE INSTANT CASE, IN THE FIR ST ORDER OF THE TRIBUNAL DATED 9-6-1975, THERE WAS NO MISTAKE WHICH WAS APPA RENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYMENT OF RS. 54,000 WAS DEDUCTIBLE UND ER SECTION 37 AFTER EXAMINING THE CIRCUMSTANCES, THE TRIBUNAL CAM E TO THE CONCLUSION THAT IT WAS NOT SO DEDUCTIBLE. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUM STANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT . THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. N O SUCH MISTAKE WAS APPARENT FROM THE RECORD. IN FACT, THIS WAS DOUBTFU L, IF THIS SORT OF AN EXERCISE COULD HAVE BEEN DONE BY THE TRIBUNAL EVEN IF IT HAD THE POWER OF REVIEW. THE TRIBUNAL HAD, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER SECTION 254(2) IN REDECIDING THE ENTIRE DISPU TE WHICH WAS BEFORE IT IN THIS FASHION, AND THE TRIBUNAL HAD COMMITTED A GROSS AND INEXPLICABLE ERROR FOR REASONS WHICH COULD NOT BE U NDERSTOOD. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHERE THE MISTAKE IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND A LO NG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MIGHT CONCEIVABL Y BE TWO OPINIONS. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADV ANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY HAVE BEEN AN ERROR OF JUDGM ENT. IN THE INSTANT CASE, THE ALLEGED FAILURE, AT LEAST ON ONE COUNT, W AS ATTRIBUTED BY THE ASSESSEE TO THE ITO AND NOT THE TRIBUNAL THEREFORE, THE TRIBUNAL HAD NO JURISDICTION UNDER SECTION 254(2) TO PASS THE SECON D ORDER. MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 16 - THE PROVISIONS OF SECTION 254(2) OF THE ACT CAN BE INVOKED FOR THE MISTAKES WHICH ARE GLARING IN NATURE AND CAN BE POI NTED FROM THE FACE OF THE ORDER. THE MISTAKES WHICH REQUIRE THE APPLICATI ON OF MIND AND LONG DRAWN PROCESS TO CONCLUDE CANNOT AMOUNT TO APPARENT MISTAKE. IF THESE TYPES OF MISTAKES ARE CONSIDERED AS APPARENT FROM T HE RECORD, THEN IT WOULD LEAD TO A REVIEW OF THE ORDER. IN THIS REGARD , WE FIND SUPPORT & GUIDANCE FROM THE JUDGMENT OF HONBLE DELHI HIGH CO URT IN THE CASE SMT. BALJEET JOLLY VS. CIT REPORTED IN 113 TAXMAN 3 8 WHEREIN IT WAS HELD AS UNDER: A BARE LOOK AT SECTION 254(2) MAKES IT CLEAR THAT A 'MISTAKE APPARENT FROM THE RECORD' IS RECTIFIABLE. IN ORDER TO ATTRAC T THE APPLICATION OF SECTION 254(2), THE 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 REVISION OR REVIEW OF THE ORDER IS INTENDED. 'MISTAKE' MEANS TO TAKE OR UNDERSTAND WRONGLY OR IN ACCURATELY; TO MAKE AN ERROR IN INTERPRETING; IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. 'APPARENT' MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTIF IED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGU AGE USED IN SECTION 254(2) MAKES IT CLEAR THAT ONLY AMENDMENT T O THE ORDER PASSED UNDER SECTION 254(1) IS PERMISSIBLE WHERE IT IS BRO UGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FRO M THE RECORD. AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORD ER. WHAT THE ASSESSEE INTENDED, TO DO IN THE INSTANT CASE WAS PRECISELY T HE SUBSTITUTION OF THE ORDER, WHICH WAS NOT PERMISSIBLE UNDER THE PROVISIO NS OF SECTION 254(2) AND, THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN HOLDI NG THAT THERE WAS NO MISTAKE APPARENT ON THE FACE OF THE RECORD. WHERE A N ERROR IS FAR FROM SELF-EVIDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 25 4(2) IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKE. ON THE OTHER H AND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATE D PROCESS OF MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 17 - INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED BY TH E APEX COURT IN MASTER CONSTRUCTION CO. (P.) LTD. V. STATE OF OR ISSA [1966] 17 STC 360, AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVE RY ON ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. IN VIEW OF THE ABOVE, WE HOLD THAT THERE IS NO MIST AKE IN THE ORDER OF LD. ITAT AS ALLEGED BY THE ASSESSEE IN ITS MISCELLANEOU S APPLICATION AS DISCUSSED ABOVE. THEREFORE WE DO NOT FIND ANY MERIT IN THE ARGUMENT OF LD. COUNSEL FOR THE ASSESSEE. HENCE, THE MA FILED B Y THE ASSESSEE IS DISMISSED. 9. IN THE RESULT, MA FILED BY THE ASSESSEE IS DISM ISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 11/10/2019 SD/- SD/ - (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 11/10/2019 &.., .(.. / T.C. NAIR, SR. PS MA NO.243/AHD/2018 (BY ASSESSEE) (IN ITA NO.1340/AHD/2016-REVENUE) VYOM TRADELINK PVT.LTD. VS. DCIT ASS T.YEAR 2010-11 - 18 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-9. AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) $%, / ITAT, AHMEDABAD 1. DATE OF DICTATION 09.10.2019 (WORD PROCESSED BY H ONBLE AM IN HIS COMPUTER BY DRAGON) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.18.10.19 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 18.10.19 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER