Appeal details
Counselvise Citation
[2011] 123 COUNSELVISE.COM (IT) 6846 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
09-09-2011
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
02-09-2011
Assessment Year
2003-2004
Appeal Filed On
22-06-2011
Judgement Text
IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI A BENCH, CHENNAI. BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. ABRAHAM P. GEO RGE, A.M. M.A. NOS. 110, 111, 112, 113, 114, 115, 116, 117, 1 18 AND 124/MDS/2011 [IN I.T.A. NOS. 668, 669, 670, 671, 672, 673, 674, 675, 676 AND 667/MDS/2008 & C.O.NOS. 103, 104, 105, 106, 92, 93, 94, 95, 96 AND 102/MDS/2008] ASSESSMENT YEARS: 2001-02, 02-03, 03-04, 04-05, 200 0-01, 01-02, 02-03, 03-04, 04- 05 AND 2000-01 M/S. C.K.SUNDARAM, 31, VINAYAKAR KOIL STREET, CHINNAVEDAMPATTI, GANAPATHI, COIMBATORE 641 006 [PAN AADFC7572L] VS. INCOME TAX OFFICER, WARD II (2), COIMBATORE 18. (APPLICANT) (RESPONDENT) M.A. NOS. 119, 120, 121, 122 AND 123/MDS/2011 [IN I.T.A. NOS. 677, 678, 679, 680 & 681/MDS/2008 A ND C.O. NOS. 97, 98, 99, 100 AND 101/MDS/2008 ASSESSMENT YEARS: 2000-01, 01-02, 02-03, 03-04 AND 04-05 SMT. S. SULOCHANA, 31, VINAYAKAR KOIL STREET, CHINNAVEDAMPATTI, GANAPATHI, COIMBATORE 641 006 [PAN: AVBPS2663K] VS. INCOME TAX OFFICER, WARD II (2), COIMBATORE 18. (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI S. SRIDHAR, ERODE, ADVOCATE REVENUE BY : SHRI SHAJI P. JACOB DATE OF HEARING : 02.09.2011 DATE OF PRONOUNCEMENT : 09.09.2011 ORDER PER U.B.S. BEDI, J.M. THESE 15 MPS HAVE BEEN FILED BY TWO ASSESSEES AGAI NST CONSOLIDATED ORDER PASSED IN THE APPEALS OF THE REVENUE AND COS OF THE ASSESSEES, DATED 25.02.2009 RELEVANT TO DIFFERENT ASSESSMENT YEARS. M.A. M.A. M.A. M.A. NO NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 2 2. SINCE THESE MPS, ARISE FROM THE CONSOLIDATED OR DER, HAVING SIMILAR FACTS AND SAME ISSUES, THEREFORE BEING DISPOSED OF BY THIS SI NGLE ORDER FOR SAKE OF CONVENIENCE. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASS ESSEE SUBMITTED THAT IN THESE CASES, THE LD. CIT(A), IN DIFFERENT APPEALS, HAS DI SMISSED THE GROUND RELATING TO LIMITATION RAISED BY THE ASSESSEE, WHEREAS, HE HAS ALLOWED THE APPEAL THAT NO SPECIFIC CHARGE HAS BEEN MADE, SO, NO PENALTY CAN BE LEVIED WHEN INCOME WAS ESTIMATED AND ON THE GROUND RAISED THAT MERE ADDITION TO THE INCOME RETU RNED IS NOT CONCLUSIVE EVIDENCE FOR LEVY OF PENALTY/PENALTIES FOR DIFFERENT YEARS. SO, REVERSAL OF CIT(A)S ORDER OR SETTING ASIDE HIS ORDER GIVES RISE TO RECTIFICATION OF THE IMPUGNED ORDER FOR WHICH, THE ASSESSEES COUNSEL PRAYED. THAT APART, THE ASSESSEE S COUNSEL PLEADED THAT NO DOUBT, WHILE SETTING ASIDE THE ORDERS OF THE LD. CIT(A), I N ALL THESE CASES AND RESTORING THE MATTER BACK ON THE FILE OF THE LD. CIT(A), THE TRIB UNAL HAS GIVEN A SPECIFIC DIRECTION TO REDECIDE THE APPEALS WHILE CONSIDERING THE RECENT DECISION OF HONBLE SUPREME COURT IN THE CASE OF UOI VS. DHARMENDRA TEXTILES PROCESSO RS AND OTHERS ( 306 ITR 277), WHEREAS ALL POINTS RAISED HAVE NOT BEEN SPECIFICALL Y DEALT WITH BY THE TRIBUNAL. THEREFORE, THIS IS A MISTAKE APPARENT FROM THE RECO RD, WHICH NEEDS RECTIFICATION. 4. THE LD. DR STRONGLY OBJECTED TO SUCH APPLICATION S OF THE ASSESSEES ON THE GROUND THAT THESE ARE NOT MAINTAINABLE IN AS MUCH AS, IN T HE ORDER PASSED, THESE APPEALS AND COS OF ASSESSEES, PARA 6 CLEARLY MENTIONS THAT BO TH THE SIDES HAVE ADMITTED THAT CASES NEEDED TO BE EXAMINED IN THE LIGHT OF RECENT DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF UOI VS. DHARMENDRA TEXTILES PR OCESSORS AND OTHERS (SUPRA), SO THIS BENCH, AFTER REPRODUCING PARA 13 AND 14 OF LD. CIT(A)S ORDER IN ITS PARA 3 HAS CONCLUDED TO REMIT THE MATTER BACK ON THE FILE OF T HE LD. CIT(A), SO IT CANNOT BE SAID THAT M.A. M.A. M.A. M.A. NO NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 3 THERE IS A MISTAKE APPARENT FROM RECORD OR ANY POIN T, WHICH WAS RAISED IN A APPEALS, WHICH WERE NOT CONSIDERED AND IN CASE THESE APPLICA TIONS OF THE ASSESSEES ARE ACCEPTED THAT WOULD AMOUNT TO REVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE AND OTHERWISE, THE CONSOLIDATED ORDER OF THE TRIBUNAL I S VERY DETAILED AND COVERS ALL RELEVANT POINTS AND MOREOVER, THE ASSESSEES COUNSEL AND THE DEPARTMENT HAVE ADMITTED NON- CONSIDERATION OF HONBLE SUPREME COURTS DECISION A ND FOR REMITTING THE MATTERS BACK ON THE FILE OF THE LD. CIT(A) FOR CONSIDERING SUCH JUDGMENT. THEREFORE, THERE IS NO OCCASION FOR MAKING ANY RECTIFICATION OF THE ORDER, AS SUCH, ALL THE APPLICATIONS SHOULD BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GO NE THROUGH THE IMPUGNED ORDER AND FIND THAT FIRSTLY, THE ASSESSEES AND THE DEPART MENT ARE ADMITTED BEFORE THIS BENCH THAT THE CASES RELIED UPON BY THE LD. CIT(A) ARE NE EDED TO BE RE-EXAMINED IN THE LIGHT OF RECENT DECISION OF HONBLE SUPREME COURT IN THE CAS E OF UOI VS. DHARMENDRA TEXTILES PROCESSORS AND OTHERS (SUPRA) AND IN THE CIRCUMSTAN CES, THE TRIBUNAL HAS SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORED THE MATTERS B ACK ON HIS FILE AND IN THE IMPUGNED ORDER RELEVANT PORTIONS OF LD. CIT(A)S ORDER HAVE DULY BEEN INCORPORATED IN PARA 3 OF THE ORDER AND CONSIDERED IN THE LIGHT OF RELEVANT PROVI SIONS AND CASE LAW. SO, THERE APPEARS TO BE NO APPARENT MISTAKE ON RECORD, WHICH COULD BE RECTIFIED. MOREOVER, AS RIGHTLY POINTED OUT BY THE LD. DR, IN CASE APPLICATIONS OF THE ASSESSEES ARE ACCEPTED THAT WOULD AMOUNT TO REVIEW OF THE ORDER, WHICH IS NOT PERMISS IBLE UNDER LAW. SECTION 254(2) OF THE ACT MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT F ROM THE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APPLICATION OF SECTION 254(2), A MIS TAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COVER M.A. M.A. M.A. M.A. NO NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 4 CASES WHERE A REVISION OR REVIEW OF THE ORDER IS IN TENDED. MISTAKE MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERRO R 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 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 M.A. M.A. M.A. M.A. NO NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 5 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. 6. SINCE, THE ASSESSEES HAVE FAILED TO POINT OUT AN Y MISTAKE IN THE ORDER NOR THE SAME HAS BEEN NOTICED BY THIS BENCH AND IN CASE APP LICATION OF THE ASSESSEE IS ACCEPTED, AS RIGHTLY POINTED OUT BY THE LD. DR, THA T WOULD AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. UNDER RECTIFICATION PROCEEDINGS, THE TRIBUNAL IS NOT EMPOWERED TO REVIEW THE ORDER P ASSED EARLIER AND SUPPORT CAN BE TAKEN FROM THE DECISION OF THE HONBLE CALCUTTA HIG H COURT IN THE CASE OF CIT VS GOKUL CHAND AGARWAL (202 ITR 14), WHICH HAS DEALT WITH TH E SIMILAR POINT AND OPINED AS UNDER: 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 M.A. M.A. M.A. M.A. NO NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 6 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. 6.1 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. 6.2 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 NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/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 6.3 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 SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF T HE ACT. THERE WAS NO M.A. M.A. M.A. M.A. NO NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 8 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. 6.4 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. 6.5 THE HONBLE JURISDICTIONAL HIGH COURT IN THE CA SE OF EXPRESS NEWSPAPERS LIMITED V. DCIT [2010] 320 ITR 12 (MAD) HAS HELD AS UNDER: M.A. M.A. M.A. M.A. NO NONO NOS SS S. .. .110 110110 110- -- -124 124124 124/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 9 A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH D OES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO EST ABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961. SECTION 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW ITS ORDER. UNDER TH E GARB OF RECTIFICATION OF MISTAKE, IT IS NOT POSSIBLE FOR A PARTY TO TAKE FUR THER CHANCE OF RE-ARGUING THE APPEAL ALREADY DECIDED: HELD, THAT THE TRIBUNAL IN ITS ORDER ON THE APPEAL HAD ALLOWED THE CLAIM FOR LOSSES UNDER THREE HEADS: (A) CLAIM OF LO SS RELATING TO POTATO BUSINESS; (B) CLAIM OF LOSS RELATING TO THE DEALING IN SHARES AND SECURITIES; AND (C) CLAIM RELATING TO SCRAP DEALINGS. IN RESPEC T OF ALL THE THREE POINTS, THE TRIBUNAL HAD CONSIDERED AND DISCUSSED ALL THE C ONTENTIONS RAISED AND ARGUED BY BOTH THE PARTIES ELABORATELY AND ULTIMATE LY RECORDED ITS FINDINGS. A CLEAR ADJUDICATION HAD BEEN MADE. THE TRIBUNAL WA S NOT JUSTIFIED IN REVIEWING ITS ORDER. 7. 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 PETITIONS OF THE ASSESSEES AND DISMISS THE SAME BEING DEVOID OF ANY MERITS. 7. IN THE RESULT, ALL THE MISCELLANEOUS PETITIONS OF THE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED ON 09.09.2011. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER VM/- DATED :. 09.09.2011. COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.
