M/s. Rajgharana Housing Ltd., CHENNAI V. DCIT, CHENNAI

MA 106/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6862 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 05-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P GOPAKUMAR
• Assessee Lawyers: J PRABHAKAR
• Keywords: Rectification of order
• Section: 6

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI C BENCH, CHENNAI. BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. ABRAHAM P. GEO RGE, A.M. M.A. NO. 106/MDS/2011 [IN I.T.A. NO. 2049/MDS/2010] ASSESSMENT YEAR: 2006-07 M/S. RAJGHARANA HOUSING LTD., F-6, RAINBOW ARCADE, 21-23, THYAGARAYA ROAD, CHENNAI 600 017. [PAN: AAACJ2674E] VS. THE DY. COMMISSIONER OF INCOME TAX, COMPANY CIRCLE V(3), FOURTH FLOOR, MAIN BUILDING 121 N.H. ROAD, NUNGAMBAKKAM, CHENNAI 600 034. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI J. PRABHAKAR REVENUE BY : SHRI P. GOPAKUMAR, JCIT ORDER PER U.B.S. BEDI, J.M. BY MEANS OF THIS MISCELLANEOUS PETITION, THE ASSES SEE SEEKS TO GET RECALLED THE ORDER OF THE TRIBUNAL IN I.T.A. NO. 2049/MDS/2010 D ATED 22.02.2011 FOR THE ASSESSMENT YEAR 2006-07 MAINLY ON THE PLEA THAT THE ASSESSEE F ILED REQUEST FOR ADJOURNMENT ON THE PLEA THAT THE LD. AR OF THE ASSESSEE WILL BE OUT OF STATION, AS PER HIS PRE-SCHEDULED PROGRAMME, ON THE DATE OF HEARING, BUT THE BENCH CL ERK HAS REPORTED THAT AS PER RECORD, THE ASSESSEE HAS NOT EXECUTED ANY POWER OF ATTORNEY IN FAVOUR OF ANY CHARTERED ACCOUNTANT OR ADVOCATE. THEREFORE, THIS B ENCH HAS HELD THAT THE PLEA OF THE ASSESSEE IS OF NO CONSEQUENCE, SO IT PROCEEDED TO D ECIDE THE APPEAL OF THE DEPARTMENT AFTER CONSIDERING THE ARGUMENTS OF THE LD. DR AND M ATERIAL ON RECORD. SINCE PROPER OPPORTUNITY HAS NOT BEEN GIVEN TO THE ASSESSEE AND MATTER HAS BEEN REMITTED BACK TO THE ASSESSING OFFICER FOR RECONSIDERATION OF THE IS SUE AFRESH, WHICH HAS CAUSED PREJUDICE TO THE ASSESSEE, THEREFORE, THE MISCELLAN EOUS PETITION OF THE ASSESSEE SHOULD M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 2 BE ACCEPTED AND OPPORTUNITY OF HEARING BE GIVEN BY RECALLING THE ORDER OF THE TRIBUNAL IN THE INTEREST OF JUSTICE. THE LD. COUNSEL FOR THE AS SESSEE FURTHER SUBMITTED THAT THIS BENCH HAS OPINED THAT THE LD. CIT(A) HAS DELETED TH E ADDITION WITHOUT CONSIDERING THE RELEVANT FACTS AND CIRCUMSTANCES, WHICH IS NOT BORN E OUT FROM THE FACTS AND THE EVIDENCE ON THE RECORD. SINCE THE LD. CIT(A) HAS PA SSED WELL REASONED ORDER, THEREFORE, THIS BENCH IS NOT JUSTIFIED IN SETTING ASIDE THE OR DERS OF AUTHORITIES BELOW AND RESTORING THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION OF THE ISSUE, IT WAS THUS PLEADED THAT THE ORDER DATED 22.02.2011 MAY BE RECA LLED AND APPEAL BE RESTORED IN ORDER TO GIVE OPPORTUNITY TO THE ASSESSEE. 2. THE LD. DR SUBMITTED THAT THE ASSESSEE, IN THIS CASE HAS SENT ONE APPLICATION TAKING THE PLEA THAT ITS AR WAS NOT AVAILABLE ON TH E DATE OF HEARING, BUT FROM THE RECORD, IT WAS FOUND THAT NO POWER OF ATTORNEY HAS BEEN EXE CUTED BY THE ASSESSEE IN FAVOUR OF ANY CHARTERED ACCOUNTANT OR ADVOCATE IN THE APPEAL PAPERS. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN PASSING EX-PARTE ORDER AFTER CONSI DERING THE MATERIAL ON RECORD AND ARGUMENTS OF THE LD. DR. THE ASSESSEE HAS NOT BEEN ABLE TO MAKE OUT A CASE FOR RECALLING AND OTHERWISE ALSO THE MATTER HAS BEEN RE MITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION OF THE ISSUE AND THE ASSESSEE SHALL HAVE DUE OPPORTUNITY BEFORE THE ASSESSING OFFICER IN DE NOVO PROCEEDINGS WITH REGARD TO THE ISSUE IN HAND. THEREFORE, THE PLEA OF THE ASSESSEE IS UNTENABLE AND NOT SUSTAINABLE. THE LD. DR FURTHER SUBMITTED THAT WITHOUT POINTING OUT ANY MISTAKE OR ERROR IN THE ORDER OF THE TRIBUNAL, THE ASSESSEE IS JUST SEEKING RE-HE ARING OF THE MATTER WHEN DETAILED ORDER HAS BEEN PASSED BY THE TRIBUNAL CONSIDERING E ACH AND EVERY ASPECT AND IN CASE THE MISCELLANEOUS PETITION OF THE ASSESSEE IS ACCEP TED, THAT WOULD AMOUNT TO REVIEW OF M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 3 THE ORDER, WHICH IS NOT PERMISSIBLE UNDER THE PROVI SIONS OF LAW, AS SUCH THE APPLICATION OF THE ASSESSEE SHOULD BE DISMISSED. 4. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MA TERIAL ON RECORD AND FIND THAT IN RESPONSE TO NOTICE OF HEARING RECEIVED BY THE ASSES SEE, IT FILED AN APPLICATION TAKING A SPECIFIC GROUND THAT THE LD. AR SHRI F.C. JAIN WILL BE OUT OF STATION AS PER HIS PRE- SCHEDULED PROGRAMME ON THE DATE FIXED FOR HEARING O F THE APPEAL AND REQUEST WAS MADE TO REPOST THE CASE FOR SOME OTHER DAY. THIS AP PLICATION WAS DULY CONSIDERED BY THE BENCH, AFTER HAVING BEEN INFORMED BY THE BENCH CLERK THAT THE ASSESSEE, AS PER APPEAL RECORDS IN THIS CASE, HAS NOT EXECUTED ANY P OWER OF ATTORNEY IN FAVOUR OF ANY CHARTERED ACCOUNTANT OR ADVOCATE. SO, THE PLEA TAKE N BY THE ASSESSEE IN THE APPLICATION RECEIVED IN THE TRIBUNAL DATED 17.02.20 11 FOR A DATE OF 22.02.2011 WAS FOUND TO BE INADEQUATE TO ADJOURN THE HEARING AND C AME TO BE REJECTED WHEN THIS BENCH PROCEEDED TO HEAR THE DEPARTMENTAL APPEAL AND AFTER CONSIDERING THE ARGUMENTS OF THE LD. DR AND MATERIAL ON RECORD, THE ORDER WAS PRONOU NCED SOON AFTER THE CONCLUSION OF HEARING AND WAS FOLLOWED BY A REASONED ORDER. SO FA R AS THE PLEA OF THE ASSESSEE THAT WHEN THE ASSESSEE HAS FILED THE APPLICATION FOR ADJ OURNMENT CHANCE SHOULD HAVE BEEN GIVEN BY ADJOURNING THE PROCEEDING IS UNTENABLE BEC AUSE IN VIEW OF THE FACT THAT THE TRIBUNAL IS REQUIRED TO GIVE OPPORTUNITY TO THE ASS ESSEE AS WELL AS TO THE DEPARTMENT BEFORE DETERMINING THE APPEAL BEFORE IT, WHICH WAS DULY GIVEN AND THIS BENCH, WHILE CONSIDERING THE REQUEST FOR ADJOURNMENT HAS GIVEN A DEQUATE REASONS FOR NOT ACCEPTING SUCH REQUEST, AND OTHERWISE, THE ASSESSEE HAS NOT B EEN ABLE TO POINT OUT ANY MISTAKE IN DECIDING THE PLEA OF ADJOURNMENT OR IN OTHER PA RT OF THE ORDER WHEN SECTION 254(2) OF THE ACT MAKES IT AMPLY CLEAR THAT A MISTAKE APPARE NT FROM THE RECORD IS RECTIFIABLE. IN M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 4 ORDER TO ATTRACT THE APPLICATION OF SECTION 254(2), A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER TO RECT IFY 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 INACCURATELY; TO MAKE AN E RROR IN INTERPRETING, IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. APPARE NT MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECTI ON 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, THE AMENDMENT OF AN ORDER DOES NOT MEA N OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORD ER WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2). FURTHER, WHERE AN ERR OR IS FAR FROM SELF-EVIDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MI STAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 254(2) IS NOT CONFINED TO CLERICAL OR ARITH METICAL MISTAKES. ON THE OTHER HAND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED BY TH E SUPREME COURT IN MASTER CONSTRUCTION CO. (P.) LTD. V. STATE OF ORISSA [1966] 17 STC 360, AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD SHOULD BE ONE WH ICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIO NS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO EXPRESSED IN SATYANARAYAN LAXMINARAYAN HEGDE V. MALLIKARJUN BHAVANAPPA TIRUMALE AIR 1960 SC 137. IT IS TO BE NOTED THAT THE LANGUA GE USED IN ORDER 47, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 IS DIFFERENT F ROM THE LANGUAGE USED IN SECTION 254(2) OF THE ACT. POWER IS GIVEN TO VARIOUS AUTHOR ITIES TO RECTIFY ANY MISTAKE APPARENT M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 5 FROM THE RECORD IS UNDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECORD. MISTAKE IS AN ORDINARY WORD, BUT IN TAXATION LAWS, IT HAS A SPECI AL SIGNIFICANCE. IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WITHIN ITS PURVI EW. IT COMPREHENDS ERRORS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SU PPOSED TO EMANATE, ARE DISCERNED. THE WORD MISTAKE IS INHERENTLY INDEFINITE IN SCOP E, AS WHAT MAY BE A MISTAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WHICH A DULY AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE RECORD. IN ORDER TO ATTRACT THE P OWER TO RECTIFY UNDER SECTION 254(2) IT IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO BE RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM T HE RECORD. A DECISION ON THE DEBATABLE POINT OF LAW OR UNDISPUTED QUESTION OF FA CT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE SO EX FACIE AND IT IS IN CAPABLE OF ARGUMENT OR DEBATE. IT IS THEREFORE, FOLLOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNO T BE CORRECTED BY WAY OF RECTIFICATION. 5. SINCE, THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE IN THE ORDER NOR THE SAME HAS BEEN NOTICED BY THIS BENCH AND IN CASE APPLICAT ION OF THE ASSESSEE IS ACCEPTED, AS RIGHTLY POINTED OUT BY THE LD. DR, THAT WOULD AMOUN T TO REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. UN DER RECTIFICATION PROCEEDINGS, THE TRIBUNAL IS NOT EMPOWERED TO REVIEW THE ORDER PASSE D EARLIER AND SUPPORT CAN BE TAKEN FROM THE DECISION OF THE HONBLE CALCUTTA HIGH COUR T IN THE CASE OF CIT VS GOKUL CHAND AGARWAL (202 ITR 14), WHICH HAS DEALT WITH THE SIMI LAR POINT AND OPINED AS UNDER: M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 6 SECTION 254(2) OF THE INCOME TAX ACT, 1961, EMPOWE RS THE TRIBUNAL TO AMEND ITS ORDER PASSED UNDER SECTION 254(1) TO RECTIFY ANY MI STAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. THE JURISDIC TION OF THE TRIBUNAL TO AMEND ITS ORDER THUS DEPENDS ON WHETHER OR NOT THERE IS A MISTAKE APPARENT FROM THE RECORD. IF, IN ITS ORDER, THERE IS NO MISTAKE WHIC H IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, THE EXERCISE OF THE JURISDICTI ON BY THE TRIBUNAL UNDER SECTION 254(2) WILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIGHT, AT THE WORST, LEAD TO PERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVA ILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENCE PROCEEDING UND ER SECTION 256. THE NORMAL RULE IS THAT THE REMEDY BY WAY OF REVIEW IS A CREAT URE OF THE STATUTE AND, UNLESS CLOTHED WITH SUCH POWER BY THE STATUTE, NO AUTHORIT Y CAN EXERCISE THE POWER. REVIEW PROCEEDINGS IMPLY PROCEEDINGS WHERE A PARTY, AS OF RIGHT, CAN APPLY FOR RECONSIDERATION OF THE MATTER, ALREADY DECIDED UPON , AFTER A FRESH HEARING ON THE MERITS O THE CONTROVERSY BETWEEN THE PARTIES. SUCH REMEDY IS CERTAINLY NOT PROVIDED BY THE INCOME TAX ACT, 1961, IN RESPECT OF PROCEEDINGS BEFORE THE TRIBUNAL. 5.1 IN SIMILAR SITUATION, WHILE DEALING WITH THE RE CTIFICATION, THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT AND ANOR VS. I.T.A.T AND ANOR (206 ITR 126 HAS HELD AS UNDER: THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE ST ATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE E NABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OT HERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWERS OF THE COU RT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PAS S ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIFICALLY CO NFERRED ON THE TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT PO WER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATIC THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED, IT CANNOT BE INFERRED . UNLESS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OB VIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS OR DER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY L ONG DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATION AND RESEARCH, IT IS N OT A MISTAKE APPARENT FROM THE RECORD. 5.2 FURTHER, THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS KARAM CHAND THAPAR AND BR.P.LTD. (176 ITR 535) HAS HELD AS UNDER: M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 7 APPELLATE TRIBUNAL DUTY TO CONSIDER CUMULATIVE E FFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS NO NEED TO ST ATE SO IN APPELLATE ORDER SPECIFICALLY INCOME TAX ACT, 1961 , SEC. 254 FURTHER IT WAS HELD AS UNDER: IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCID ENTAL 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 HAS NOT TAKEN INTO ACCOUNT AN Y IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NO T LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY TH E TRIBUNAL ARE PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGEMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CU MULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRI BUNAL. SIMILARLY THE BOMBAY HIGH COURT IN THE CASE OF CIT- VS- RAMESH ELECTRIC AND TRADING CO. (203 ITR 497) .IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MIST AKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD.. THE POWER OF RECTIFICA TION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOU GHT TO BE RECTIFIED S AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM T HE RECORD AND NOT A MISTAKE WHICH REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINION. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EI THER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENTS 5.3 WE ALSO DRAW SUPPORT HERE FROM HONBLE MADRAS HIGH COURT DECISION IN T.C.(A) NO. 156 OF 2006 DATED 21.08.2007 IN THE CASE OF CIT VS. TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. WHEREIN THE HONBLE HI GH COURT HELD AS UNDER:- THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHE N THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING ITS MIND AGAIN ST THE ASSESSEE, THE M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 8 SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF T HE ACT. THERE WAS NO NECESSITY WHATSOEVER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER THE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL, WE COULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER AS TO HOW T HE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASONS. THERE IS NO APPARENT ERROR O N THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHOR ITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PETITION IN T HE NAME OF REVIEWING ITS OWN ORDER. IN THE PRESENT CASE, IN THE GUISE OF RECTIFICATION , THE TRIBUNAL REVIEWED ITS EARLIER ORDER AND ALLOWED THE MISCELLANEOUS PETITIO N WHICH IS NOT IN ACCORDANCE WITH LAW. SECTION 254(2) OF THE ACT DOE S NOT CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DO ING SO, WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAK ES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBI T OF THE APPLICATION OF SECTION 254(2) IS LIMITED AND NARROW. IT IS RESTRI CTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE OR DER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORD ER IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. ONLY GLARING AND ANY MISTAKE APPARENT ON THE FACE OF THE RECORD ALONE CAN BE RECTIFIED AND H ENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. 5.4 FURTHER, WE PLACE RELIANCE UPON HONBLE DELHI H IGH COURT EXPOSITION ON THE SCOPE OF RECTIFICATION U/S 254(2) AS REPORTED IN TH E CASE OF RAS BIHARI BANSAL VS. COMMISSIONER OF INCOME TAX (2007) 293 ITR 365:- SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT M ISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOL E MATTER, WHICH IS BEYOND THE SCOPE OF THE SECTION. M.A. M.A. M.A. M.A. NO. NO. NO. NO.10 1010 106 66 6/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 9 6. THEREFORE, IN VIEW OF THE FACTS, CIRCUMSTANCES, IN THE LIGHT OF RATIO OF DECISIONS CITED AND DISCUSSION AS HELD ABOVE, WE DO NOT FIND ANY SUBSTANCE IN THE PETITION OF THE ASSESSEE AND DISMISS THE SAME BEING DEVOID OF ANY M ERITS. 7. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E ASSESSEE GETS DISMISSED. ORDER PRONOUNCED ON 26.08.2011. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER VM/- DATED :. 26.08.2011. COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.