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Judgment
B.N. Kirpal, J.—The petitioner seeks reference of the following questions :
"1. Whether, on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal has erred in rejecting application u/s 254(2) dated September 13, 1991, in regard to the allow ability of commission to Shri Chander Mohan to whom the commission has all along been allowed except for 1981-82 and 1982-83?
Whether, on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal is correct in not following the orders dated September 3, 1991, relating to the assessment year 1983-94 even though the facts of both the years are same?
Whether, on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal has erred in disallowing commission to Shri Chander Mohan to whom commission has all along been allowed right from his becoming the managing director from the assessment year 1971-72 onwards?
The present application is for the assessment year 1992-83. The commission paid to one Shri Chander Mohan was disallowed by the Income Tax Appellate Tribunal. The assessed did not file any application u/s 256(1) of the Act against the said order. The assessed, however, filed an application u/s 254(2) alleging that a mistake had been committed because in respect of the assessment years 1984-85 and 1985-86 deduction of the said commission had been allowed. Vide order dated February 24, 1992, the application u/s 254(2) was dismissed by the Tribunal holding that its finding was to the effect that the facts and circumstances of the case are identical with those of the earlier years and that no mistake had been pointed out by the assessed. It is against that order that the present application has been filed seeking reference of the questions mentioned hereinabove.
The Tribunal is right in coming to the conclusion that there was no mistake apparent on the record calling for rectification. If the assessed was aggrieved by the finding of the Tribunal, then it ought to have challenged the original order by filing an application u/s 256(1) which it did not do. Merely because the Tribunal considered and did not allow a deduction, even if the conclusion is wrong, that will be no ground for moving an application u/s 254(2), unless it can be said that there is a mistake apparent on the face of the record.
It is stated that a similar application u/s 254(2) was filed in respect of the assessment year 1983-84 and the same was allowed. Each assessment year has to be considered separately and if for a subsequent years, viz., the assessment year 1983-84 an application u/s 254 has been allowed, that by itself is no ground for allowing an application u/s 254(2) for the year 1982-83.
No question of law arises. The application is dismissed