The document is a court order from the Income Tax Appellate Tribunal regarding an application for rectification of a previous order. The key details are: - The assessee (applicant) sought rectification of a previous Tribunal order regarding income tax assessment for the year 1995-96. - Specifically, the assessee argued that the previous order did not address an additional legal ground raised regarding excessive penalties levied. - The Tribunal partially allowed the application, recalling the previous order only to address the unadjudicated legal ground on penalties. It rejected attempts to re-write other aspects of the order. In summary, the Tribunal granted a partial rectification to address a specific legal issue

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IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH :
JODHPUR
BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND
SHRI N.K. SAINI, ACCOUNTANT MEMBER.
M.A. NO. 08JODH/201e
(Arising out of ITA No. 587/Jodh/2010 A.Y. 1995-96)
M/s. Anoopgarh Kray Vikraya Sahakari Samiti Ltd. vs ACIT, Circle,
Anoopgarh, Sriganganagar.
Sriganganagar
PAN No. AAALA0011B
(Appellant ) (Respondent)
Assessee by : Shri Suresh Ojha.
Department by : Shri G.R. Kokani (DR)
Date of hearing : 14/03/2013.
Date of pronouncement : 30/04/2013.
PER HARI OM MARATHA, J.M.:
Through the above captioned miscellaneous application, the
applicant/assessee/appellant has sought rectification of the Tribunal
Order for A.Y. 1995-96 dated 14/09/2012 passed in this case in ITA No.
587/JU/2010 (M/s. Anoopgarh kraya Vikraya Sahakari Samiti Ltd.), by
raising the following grounds :-

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“The appellant has received order of the Hon'ble Bench
dated 14.09.2012 passed in above case, whereby the appeal of
the assessee was not accepted.
On careful study of the order the appellant has noticed
that there are following apparent mistakes in the order of the
Hon'ble Bench which requires a rectificatory order to be passed
correcting the mistakes :-
Para 9 page 10 of the order which deals with the
conclusion of the decision is reproduced from Page. 11 as
under:-
It is true that the assessee had disclosed the transaction
regarding sale of Mill and also relating to sale of mill in the
computation of income filed with the return of income. But k it
has failed to show as to why and how the claim was bonafide. It
is an undeniable fact that the mill was a part of block of assets
separate from ginning factory and the assessee has been
claiming depreciation thereon from the very beginning till the
year 1987. These facts were not denied, rather, were
confirmed from the report. The mill was closed for four year
but the depreciation was being claimed. The question that the
assessee is a cooperative society and it is run by employees will
not absolve it from penal provisions of section 217(l)(c) of the
Act because its accounts are audited and benefit of legal
experts were available to it altogether. Thus there is no shred
of bonafide belief which has been proved on record by the
appellant. By saying and mentioning in a routine manner that
the cooperative society being run by employees cannot be

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accepted as a general rule for treating any claim falling under
penal provisions as bonafide action.
It is submitted that the assessment year under
consideration i$ 1995-96 and the Mill which was subject matter
of sale was closed at the end of account year relevant to A.Y.
1987-88. The assessee has claimed depreciation in 3 years of its
existence as per details given below which are available on
page 3 of Paper book, on file of ITAT.
1985-86 29,672/-
1986-87 31,050/-
1987-88 30,162/-
90,884/-
This fact is also mentioned on page 3 Top para of written
submission made by the counsel of the assessee. The Hon'ble
Bench has however considered the erroneous facts that the Mill
was closed for four years but the depreciation was being
claimed. No depreciation was ever claimed after A.Y. 1987-88
and WDV worked out at the end of A.Y. 1987-88 was taken to be
WDV while working out capital gains in A.Y. 1995-96. The
assessee was under bonafide belief that after 7 years of closure
of Mill, while no depreciation is being claimed or allowed, the
surplus is assessable as long term capital gains.
2. In para 9 page 12 of the order, the Hon'ble IT AT has
discussed issue relating to lease money being taxed on receipt
basis in earlier year and found no reason for change in the
method of accounting.

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Here it is submitted that there is no change in accounting
method. The assessee has received advance lease money for
ginning of Narma. An advance is no income. In earlier year the
assessee was wrongly showing advance as income. This year the
assessee was advised that unless the contract is executed, the
advance does not get converted into income. Thus, the advance
lease money was disclosed as income on completion of contract.
This is the right procedure and in accordance with Accounting
Standard. If contract is not performed, the advance is
recoverable. The assessee has disclosed these facts in the Income
and Expenditure account and Balance Sheet. There cannot be
any penalty for following correct accounting standard.
An additional ground of appeal was raised vide letter dated
16.07.2012 which included written submissions in page 5,
paper book with Index 36 Pages Form No. 35 and an additional
ground duly signed by the Chief Manager of Society which is
already on the file of the IT AT. In this ground it was claimed that
penalty levied @ 150% of tax sought to be levied is excessive and
unreasonable. This ground was also raised before CIT (A) too.
However, in the order of the Hon'ble Bench this ground
does not find mention, although in the written submission, it
was requested that penalty may kindly be reduced to minimum.
The assessee's case is fully covered by the decision of
Hon'ble Supreme Court in the case of CIT Vs. Reliance Petro
Products Pvt. Ltd. 322 ITR P. 158 Rajasthan High Court's decision in
CIT Vs. Oriental Power Cables Ltd. (Raj) 303 ITR P. 49 and thus the
order of the Hon'ble Bench dated 14.09.2012 requires to be

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amended. The appellant seeks amendment of the order
accordingly.”
2. We have heard rival submissions and have also considered the
written submissions. We extract the written submission of ld. AR in
toto, as under :-
“With reference to above it is submitted that the appeal of the
assessee has been decided by the Hon'ble Bench. At the time of
passing the order, Hon'ble Bench has fails to decide the
additional ground of appeal which was raised vide letter dated
16.7.2012, which also includes the submission in the paper book
with Form No. 36. In this respect it is also submitted that the
Assistant Commissioner of Income-tax fails to dispose off the
grounds. Beside the other ground taken in the memo of appeal
was also not disposed off.
As regards the grounds it is submitted that the following grounds
were not disposed off:
"Various court's decision site on which reliance was
placed which was fully supported the case of the
assessee were simply ignored,"
From the perusal of the above you will observe that this
ground was not disposed off.

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The assessee relied before the CIT(A) as well as before this
Hon'ble Bench on the following judgment of Supreme Court and
Rajasthan High Court :-
1. CIT vs. Oriental Power Cable Ltd. 303 ITR 49 (Raj.).
2. CIT vs. Reliance Petro Products Pvt. Ltd. 322 ITR 158 (SC)
3. CIT vs. Shyam Sunder Gopal Das 310 ITR 5 (SC)
From the perusal of the submission you will observe that this
ground was not disposed off by the Hon'ble Bench while deciding the
appeal.
The above ground was not disposed off. Therefore the
mistake is a mistake apparent from record.
As far as the ground not disposed for is also falling under the
definition of the mistake apparent from the record, in view of the
judgment of Hon'ble Rajasthan High Court delivered in case of
Commissioner Of Income-Tax vs Ramesh Chand Modi reported 249
ITR 323 (Raj. The relevant portion of head note is being
reproduced hereunder :
Facts
The appellant challenges the order passed by the
Income-tax Appellate Tribunal dated September 20,
1999, in Misc. Application No. 43/JP of 1998. the
assessee-respondent preferred an appeal against the

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order passed by the Assessing Officer under section
158BC of the Income-tax Act, 1961. Issue
Whether, recalling order for decision afresh amount
to review ? Findings No.
Reasoning
Where a Tribunal fails to notice the question raised before it
inadvertently under any misapprehension, in correcting such error
by recalling the order made without deciding such question
which goes to the root of the matter for deciding the same
appropriately falls in such category of procedural mistakes
which such Tribunal must correct ex debito justitiae, even in
the absence of any power. The present case falls in that class.
Thus, no substantial question of law arises in this appeal. The
appeal is, therefore, dismissed in limine. If the arguments were
not considered is also covered under the definition of mistake
apparent from record.
As regards the argument, in this respect it is submitted
that I want to draw your kind attention towards the written
submission submitted before the Hon'ble Bench in course of
hearing. The assessee also submitted written submission in which
it was also mentioned also submitted the relevant para is as
under:
"In pursuance of this impugned order has been passed by
the CITA Bikaner on 7.10.2010 and upheld the order of
Learned AO. While deciding the appeal, Learned CITA

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has even not decided the grounds of appeal raised as
perform No. 35 filed before him."
The assessee also argued and submitted that alternative ground in
the last para which is being reproduced hereunder:
"An alternative ground is raised in this appeal that the
penalty levied is unreasonable and excessive. The AO
has levied penalty @ 150% of the tax sought to be
evaded. In fact it was first year when the society's
income crossed taxable limit by making the addition."
If the argument and ground were not disposed off is a
mistake apparent from rerecord. From the above submission you
will observe that argument was taken in course of hearing was
also not consider and adjudicated. This too is covered by the
judgment of 249 ITR 323 (Raj.). In addition to this judgment your
kind attention is invited towards 199 ITR 771 C1T vs. Keshav Fruit
Mart (All.) the entire judgment is being reproduced hereunder:
Heard counsel for the parties. Before the Tribunal,
the question for consideration was whether there was
a mistake apparent from the record in that a ground
raised in the memorandum of appeal before the
Tribunal was not at all considered by the Tribunal.
Taking the view that commission to consider the ground
raised in the appeal was a mistake apparent from the
record, the Tribunal set aside the order passed thereby

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and fixed the date for a rehearing. On these facts, the
Revenue has raised the following question in an
application made under section 256(2) : " Whether, on
the facts and in the circumstances of the case, the
Hon'ble Tribunal was in law justified in recalling their
order dated July 2,1987, in I.T.A. No. 2113(All.)/1984,
with a direction to rehear the case which was passed by
them after a careful consideration of all the grounds
of appeal taken by the Revenue ?
It is urged by learned standing counsel that the
arguments were duly addressed before the Tribunal on
this ground. It is conceded by him that the Tribunal
has not at all discussed that ground in its order and
complete omission to discuss the ground set up in
appeal is undoubtedly a mistake apparent from the
record. There being no controversy on the fact that the
Tribunal completely omitted to consider the ground,
in our opinion, the aforesaid question is not referable
and, therefore, the application is dismissed. No order
as to costs.
Lastly your kind attention is invited towards 91 ITD 398
(Amritsar Third Member) in case of B. Karamchand Piarelal vs.
lncome Tax Officer in which the Hon'ble bench held as under :
On a careful consideration of the entire relevant facts,
which have very aptly been discussed in the order

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proposed by the learned Members in the aforesaid M.A.
and in the interest of fairness and justice, I am of the
considered opinion that the view taken by the learned
Accountant Member should be preferred over the view
expressed by the learned Judicial Member, so that no
litigant can have a grievance that certain vital
arguments made by them and important judgments
cited by them have not been considered by the Tribunal.
In view of above mentioned facts and circumstances you
will observe that there being a mistake apparent from record as
pointed out above you are requested to kindly rectify the
mistake.
3. The ld. D.R. has submitted that there is no rectifiable mistake in
this Tribunal Order and supported the same.
4. After considering the above submissions we are satisfied, that
the ‘addition ground raised’ regarding excessiveness of the penalty
levied u/s 271(1)(c) of the Act remained unadjudicated. This is a
rectifiable mistake inadvertently committed, and this can be rectified
under the provisions of Section 254(2) of the Act. Other submissions
are simply admitted at the re-writing of the order which is not
permissible under section 254(2) of the Act. Accordingly, we recall the

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Tribunal Order only for the limited purpose of deciding the additional
legal ground raised and reject other referred mistakes.
5. In the result, this M.A. is partly allowed.
Order pronounced in the open court on 30th
April, 2013.
Sd/- Sd/-
[N.K. Saini] [Hari Om Maratha]
Accountant Member Judicial Member
Dated : 30th
April, 2013.
VL
Copy to all concerned.