Geofin Investment (P) Ltd. vs Commissioner Of Income Tax & Ors.
2011 Latest Caselaw 2864 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Writ Petition (Civil) No. 3744/2011

%                                   Date of Decision: 27th May, 2011


Geofin Investment (P) Ltd.             ....Petitioner
            Through Mr. Abhishek Maratha, Sr. Standing
                       Counsel with Mr. Anshul Sharma, Adv.

                   VERSUS

Commissioner of Income Tax & Ors.     .....Respondent
         Through Mr. S.K. Mukhi and
                     Mr. Satish K. Goel, Advocates.


CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?


SANJIV KHANNA, J.

CM No. 7816/2011

Allowed, subject to all just exceptions.

WP(C) No. 3744/2011

Learned counsel for the petitioner Geofin Investment (P)

Limited, submits that the tribunal had erred in dismissing the

application under Section 254(2) of the Income Tax Act, 1961 (Act, for

short) as the tribunal in its order dated 13th October, 2010, had referred

to and relied upon decision of another ITAT Bench which had not not

been cited at the time of hearing. He submits that the order passed by

the tribunal dated 13th October, 2010 under Section 254(1) of the Act,

should have been recalled.

2. We do not find any merit in the said contention. Under Section

254(2), a mistake apparent from the record can be rectified. The power

is circumscribed and limited. There should be mistake which is

apparent before the power can be exercised. This is a mandatory pre-

condition. The Tribunal in its order dated 13th October, 2011, referred

to the controversy in question relating to disallowance made on

account of short term capital loss and long term capital loss. The entire

issue was examined on merits including the judgments relied upon the

petitioner assessee. After examining the matter in detail, the tribunal

allowed the appeal filed by the revenue. While allowing the appeal, the

tribunal also referred to another decision of ITAT, Mumbai, 'F' Bench,

in the case of Macintosh Finance Estates Ltd. Vs. ACIT.

Reliance and reference to reasons stated in Macintosh (supra) cannot

be regarded as a mistake apparent from the record. It is not unusual or

abnormal for Judges or adjudicators to refer and rely upon

judgments/decisions after making their own research.

3. In view of the aforesaid, we do not find any merit in the present

writ petition and accordingly the same is dismissed.

4. We are informed that the petitioner has filed an appeal under

Section 260A of the Act against the order dated 13th October, 2010.

The said appeal will be decided on its own merits. It is clarified that we

have not commented or expressed our opinion on the merits of the

addition.

SANJIV KHANNA, J.

CHIEF JUSTICE May 27, 2011 kkb