Smt. Vatsala Padmanabhan, CHENNAI V. ITO, CHENNAI

MA 136/CHNY/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5893 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-12-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 11-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Keywords: Capital asset; Rectification of order
• Section: 54; 139

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI C BENCH, CHENNAI. (BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. ABRAHAM P. GE ORGE, A.M.) M.A. NO. 136/MDS/2009 [IN I.T.A. NO. 2301/MDS/2007] ASSESSMENT YEAR: 2003-04 SMT. VATSALA PADMANABHAN, 8-B, MILLENNIUM TOWERS, NO. 21/22, TAYLORS ROAD, KILPAUK, CHENNAI 10. [PAN: AKCPP3174G] VS. THE INCOME TAX OFFICER, BUSINESS WARD XIV (3), CHENNAI 600 034. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI B. SRINIVAS ORDER PER U.B.S. BEDI, J.M. BY MEANS OF THIS PRESENT MISCELLANEOUS APPLICATION , THE ASSESSEE SEEKS TO GET RECALL THE ORDER OF THE TRIBUNAL, IN I.T.A. NO.2301 /MDS/2007 FOR THE ASSESSMENT YEAR 2003-04, DATED 29.04.2009 ON THE GROUND THAT SOME D ECISION OF THE COORDINATE BENCH, WHICH HAD TO BE CITED WAS NOT ALLOWED TO BE CITED A S HEARING HAD CONCLUDED AND IN VIEW OF THE SAID DECISION, THE APPEAL OF THE ASSESSEE CO ULD BE ALLOWED AND SO FAR AS OTHER CASE LAW RELIED UPON COULD DECIDE THE ISSUE AGAINST THE ASSESSEE IS NOT APPLICABLE TO THE FACTS OF THE CASE. THEREFORE, IT WAS PLEADED FO R RECALLING THE ORDER OF THE TRIBUNAL TO RENDER JUSTICE. 2. THE ASSESSEE OR HIS COUNSEL DID NOT APPEAR AT T HE TIME OF HEARING AND ONE APPLICATION HAS BEEN RECEIVED STATING THEREIN THAT THE COUNSEL FOR THE ASSESSEE WILL BE PERSONALLY INCONVENIENCED, UNABLE TO PRESENT HIMSEL F BEFORE THE BENCH AND ADDITIONAL INFORMATION HAS TO BE COLLECTED FROM THE CHARTERED ACCOUNTANT OF THE ASSESSEE AND SOUGHT ADJOURNMENT. WHEREAS, THE HEARING IN THE MP COMMENCED FROM 24.07.2009 AND M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 136 3636 36/MDS/09 /MDS/09 /MDS/09 /MDS/09 2 IT HAS BEEN ADJOURNED FROM TIME TO TIME MAINLY ON T HE REQUEST OF THE ASSESSEES COUNSEL FOR ABOUT EIGHT OCCASIONS AND THIS TIME ALSO, THE A SSESSEES COUNSEL HAS SOUGHT ADJOURNMENT WITHOUT ASSIGNING ANY SPECIFIC REASON. THE ISSUE AGITATED IN THE APPLICATION RELATES TO NON-CONSIDERATION OF COORDINATE BENCH DE CISION, WHICH WAS NOT CITED BY THE ASSESSEES COUNSEL AT THE TIME OF HEARING OF THE AP PEAL AND THERE APPEARS TO NO REQUIREMENT OF ANY OTHER ADDITIONAL DETAILS. THEREF ORE, AFTER HAVING CONSIDERED THE REQUEST OF THE LD. AR IN THE ADJOURNMENT APPLICATIO N OF THE LD. COUNSEL FOR THE ASSESSEE, THE SAME HAS BEEN REJECTED AND THIS BENCH PROCEEDED TO DECIDE THE PETITION AFTER HEARING THE LD. DR. 3. THE LD. DR SUBMITTED THAT THE ISSUE RELATES TO COMPUTATION OF LONG TERM CAPITAL GAINS (LTCG) IN RESPECT OF THE SHARE OF THE ASSESSE E IN SALE CONSIDERATION, WHICH WAS DECLARED AT NIL IN THE RETURN FILED AND AS PER PARA 4-5 OF THE TRIBUNAL ORDER IN APPEAL, ADEQUATE OPPORTUNITY WAS GRANTED TO THE ASSESSEE AN D EACH AND EVERY ASPECT OF THE MATTER WAS CONSIDERED BEFORE ARRIVING AT THE CONCLU SION AS DRAWN BY THIS BENCH IN VIEW OF THE CASE LAW CITED AND THE ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY MISTAKE, WHICH IS APPARENT FROM THE RECORD NOR COULD SHE EST ABLISH IN HER PETITION AS TO HOW RECTIFICATION IS CALLED FOR IN THIS CASE AND AS THE ASSESSEE DID NOT FILE ANY DECISION OF THE COORDINATE BENCH, AT THE TIME OF HEARING, ON WHICH HE WANTED TO GET RECALLED THE ORDER AND FURTHER TIME AFTER THE CLOSE OF HEARING COULD N OT BE LEGALLY GRANTED AND THIS ASPECT HAS ALSO BEEN DISCUSSED BY THE TRIBUNAL. THEREFORE, THE PLEA OF THE ASSESSEE TO RECALL OF THE ORDER IS UNJUSTIFIED AND NOT PROPER. IN CASE , THE PLEA OF THE ASSESSEE IS ACCEPTED THAT WOULD AMOUNT TO REVIEW OF THE TRIBUNALS ORDER , WHICH IS NOT PERMISSIBLE AS PER PROVISIONS OF ACT. AS SUCH, IT WAS PRAYED FOR DISMI SSING THE APPLICATION OF THE ASSESSEE. M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 136 3636 36/MDS/09 /MDS/09 /MDS/09 /MDS/09 3 4. WE HAVE HEARD THE LD. DR AND PERUSED THE APPLIC ATION OF THE ASSESSEE AS WELL AS ORDER OF THE TRIBUNAL AND FIND THAT THE PLEA OF THE ASSESSEE ABOUT NON-CONSIDERATION OF COORDINATE BENCHS DECISION, WHICH WAS NOT FILED BEFORE THE BENCH HAS BEEN CONSIDERED BY THIS BENCH IN PARA 4 AND 5 OF THE ORD ER, WHICH READ AS UNDER: 4. AGGRIEVED BY THIS ORDER OF THE LD. CIT(A), TH E DEPARTMENT HAS COME UP IN APPEAL AND IT WAS STRONGLY PLEADED THAT THE LD. CIT (A) HAS ERRED IN RELYING ON THE DECISION WHEREIN THE FACTS ARE CLEARLY DISTINGUISHA BLE. MOREOVER, THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT IN THE RELIED ON CASE BEFORE HIM, THE ASSESSEE HAD TAKEN POSSESSION OF THE NEW PROPERTY BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME AND HENCE THE COURT HELD THAT THE QUESTION O F FULFILLING REQUIREMENT UNDER SECTION 54(2) DOES NOT ARISE. IN THE INSTANT CASE, THE ASSESSEE HAD NOT INVESTED REQUIRED AMOUNT IN ANY PROPERTY WITHIN THE DUE DATE FOR FILING THE RETURN OF INCOME NOR HAD SHE DEPOSITED THE MONEY IN THE CAPITAL GAIN S ACCOUNT SCHEME AS STIPULATED U/S 54(2). SINCE THE ASSESSEE HAS FAILED TO ESTABLI SH THE DEPOSIT MADE UNDER CAPITAL GAINS ACCOUNT SCHEME WITHIN THE PERIOD PRESCRIBED U NDER SECTION 139(1) FOR FILING OF THE RETURN, THEREFORE THE ASSESSEE IS NOT ENTITL ED TO GET EXEMPTION UNDER SECTION 54, WHICH HAS RIGHTLY BEEN DENIED BY THE ASSESSING OFFICER AND THE LD. CIT(A) WAS NOT LEGALLY AND FACTUALLY CORRECT TO ALLOW THE EXEM PTION AS CLAIMED BY THE ASSESSEE. SO FAR AS EXEMPTION PROVISION IS CONCERNED, IT HAS TO BE STRICTLY APPLIED AND EXEMPTION IS TO BE GRANTED LIBERALLY, BUT THERE CAN NOT BE ANY DEVIATION FROM THE RELEVANT PROVISIONS OF LAW. HOWEVER, THE ASSESSEE I N THIS CASE HAS NOT COMPLIED WITH RELEVANT PROVISIONS OF LAW IN AS MUCH AS AMOUNT OF CAPITAL GAINS, WHICH WAS NOT APPROPRIATED, HAD TO BE DEPOSITED IN CAPITAL GAINS ACCOUNT SCHEME BEFORE DUE DATE OF FILING OF RETURN PRESCRIBED UNDER SECTION 139(1) , WHICH WAS 31.07.2003, THEREFORE, THE ASSESSEE COULD NOT GET THE EXEMPTION AS CLAIMED AND FOR THIS MATTER, THE LD. DR RELIED UPON CHENNAI A BENCH DECISION I N I.T.A. NO.1600/MDS/1999 FOR THE ASSESSMENT YEAR 1991-92 ORDER DATED 15.12.2006, WHICH IS STATED TO BE ON IDENTICAL ISSUE INVOLVING ALMOST SIMILAR FACTS. THE REFORE, THE EXEMPTION AS CLAIMED HAS RIGHTLY BEEN DENIED BY THE ASSESSING OFFICER. 5. THE LD. COUNSEL FOR THE ASSESSEE, WHILE RELYING UPON THE BASIS AND REASONS GIVEN BY THE LD. CIT(A) HAS PLEADED FOR CONFIRMATIO N OF THE IMPUGNED ORDER. IT WAS FURTHER SUBMITTED THAT THOUGH THE UNAPPROPRIATED AM OUNT OF CAPITAL GAIN WAS NOT ADMITTEDLY DEPOSITED IN THE CAPITAL GAINS ACCOUNT S CHEME, WHICH WERE COMPUTED AT RS.17,79,147/- FROM THE SALES CONSIDERATION OF R S.38.00 LAKHS AND THE ASSESSEES SHARE AT 50% WORKED OUT TO RS.8,89,583/-, WHICH SHE HAD CLAIMED EXEMPT UNDER SECTION 54, AS SHE HAD TO REINVEST THE CAPITAL GAIN IN THE PURCHASE OF ANOTHER FLAT WITHIN THE TIME LIMIT PRESCRIBED UNDER SECTION 54. THEREFORE, THERE IS NO VIOLATION OF ANY PROVISIONS OF LAW AND AMOUNT STANDS INVESTED IN THE NEW CAPITAL ASSET AS ENVISAGED UNDER SECTION 54 WITHIN THE STIPULATED PE RIOD AND IF SOME DELAY IS THERE IN DEPOSITING THE AMOUNT UNDER THE CAPITAL GAINS ACCOU NT SCHEME THAT CANNOT BE HELD AGAINST THE ASSESSEE TO DENY THE EXEMPTION AND ITS RIGHTFUL ALLOWABILITY TO THE M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 136 3636 36/MDS/09 /MDS/09 /MDS/09 /MDS/09 4 ASSESSEE. SO, THE LD. CIT(A) HAS CONSIDERED THE ENT IRETY OF FACTS AND CIRCUMSTANCES AND OTHER RELEVANT MATERIALS HAS CONCLUDED TO DELET E THE ADDITION BECAUSE DUE DATE FOR FILING OF THE RETURN UNDER SECTION 139 WAS VERY MUCH THERE AND THEREFORE THE LD. CIT(A)S ORDER IN THIS REGARD SHOULD BE UPHELD. AT THE CLOSE OF THE ARGUMENTS BY THE LD. COUNSEL FOR THE ASSESSEE, IT WAS SUBMITTED THAT HE WANTS TO FILE A COPY OF SOME TRIBUNAL ORDER RECENTLY PRONOUNCED. SO CASE MAY BE TREATED TO HAVE BEEN CONCLUDED, SO FAR AS ASSESSEE IS CONCERNED AND CLOS ED BUT HE BE PERMITTED TO FILE THE SAME AFTER TWO DAYS AND REQUESTED FOR CONSIDERATION OF THE SAME, BUT THE ASSESSEES COUNSEL DID NOT GIVE ANY NAME OF THE CASE, NOR DATE OF ORDER NOR I.T.A. NO., THEREFORE, HIS REQUEST FOR FILING OF COPY OF THE OR DER AFTER CLOSE OF HEARING WAS NOT ACCEPTED BECAUSE IN THAT CASE OTHER SIDE WOULD NOT GET A CHANCE TO REACT TO THAT AND THE REQUEST CAME TO BE REJECTED. 5. OTHERWISE, THE TRIBUNAL HAS CONSIDERED THE ISSU E RAISED IN THE APPEAL BY RELYING UPON VARIOUS CASE LAW ON THE POINT BY PASSING A DET AILED AND ELABORATE ORDER. THE ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY MISTAKE AS PER APPLICATION SUBMITTED NOR IT IS FOUND BY THIS BENCH WHILE CONSIDERING THE CONTEN TS OF THE APPLICATION AND THE LD. DR HAS RIGHTLY POINTED OUT RELEVANT PARAGRAPHS OF THE ORDER OF THE TRIBUNAL AND ALSO TO PLEAD THAT IN CASE THE PLEA OF THE ASSESSEE ABOUT RECALLI NG THE ORDER IS ACCEPTED, THAT WOULD AMOUNT TO REVIEW OF THE ORDER AND UNDER RECTIFICATI ON PROCEEDINGS, THE TRIBUNAL IS NOT EMPOWERED TO REVIEW THE ORDER PASSED EARLIER AND SU PPORT CAN BE TAKEN FROM THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS GOKUL CHAND AGARWAL (202 ITR 14), WHICH HAS DEALT WITH THE SIMILAR POIN T 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 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 M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 136 3636 36/MDS/09 /MDS/09 /MDS/09 /MDS/09 5 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 ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES . THE POWER OF RECTIFICATION WHICH IS SPECIFICALLY CONFERRED 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 POWER OF RECTIFICATION OR REVIEW OR REVISI ON. 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, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT REC ALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATION AND RESEARCH, IT I S NOT 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: 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. M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 136 3636 36/MDS/09 /MDS/09 /MDS/09 /MDS/09 6 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 AGAINST THE A SSESSEE, THE SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF THE 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 SING LE REASON IN THE WHOLE ORDER AS TO HOW THE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASO NS. THERE IS NO APPARENT ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHORITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PE TITION IN THE 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 PETITION WHICH IS NOT IN ACCORDANCE WITH LAW. SECTION 254(2) OF THE ACT DOES NOT CONTEMPLAT E REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBLITERATE THE D ISTINCTION BETWEEN THE POWER TO RECTIFY MISTAKES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) IS L IMITED AND NARROW. IT IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FR OM THE RECORD. RECALLING THE M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 136 3636 36/MDS/09 /MDS/09 /MDS/09 /MDS/09 7 ORDER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER . RECALLING OF THE ORDER 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 REC TIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATI ON. 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 CONS IDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT A N ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE F ACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRON G, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE A CT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE- ARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE O F THE SECTION. 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 SOON AFTER THE CONCLUSION OF HEARI NG ON 03.12.2010. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER VM/- DATED :. 03.12.2010. COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.