Bojaraj Textile Mills Ltd., Madurai V. ACIT, Madurai

MA 137/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6871 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 12-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR ST
• Assessee Lawyers: T N SEETHARAMAN
• Keywords: Rectification of order

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI B BENCH, CHENNAI. BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. ABRAHAM P. GEO RGE, A.M. M.A. NO. 137/MDS/2011 [IN I.T.A. NO. 1503/MDS/2007] ASSESSMENT YEAR: 2001-02 M/S. BOJARAJ TEXTILE MILLS LTD., SITALAKSHMI MILLS PREMISES, TIRUNAGAR, MADURAI 625 006. [PAN: AABCB1529P] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE II, MAUDRAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI T.N. SEETHARAMAN, ADVOCATE REVENUE BY : SHRI K.E.B. RENGARAJAN, JR. ST. COUNSEL DATE OF HEARING : 19.08.2011 DATE OF PRONOUNCEMENT : 02.09.2011 ORDER PER U.B.S. BEDI, J.M. BY MEANS OF PRESENT APPLICATION, THE ASSESSEE SEEK S TO GET RECALLED THE ORDER OF THE TRIBUNAL PASSED IN THE APPEAL OF THE REVENUE IN I.T.A. NO. 1503/MDS/2007 DATED 08.04.2011 FOR THE ASSESSMENT YEAR 2001-02 MAINLY O N THE GROUND THAT THE TRIBUNAL HAS NOT GIVEN DECISION ON THE MERITS OF THE ISSUE RAISE D AND NO SPECIFIC DECISION ON REOPENING ISSUE HAS BEEN GIVEN. SO, THE TRIBUNAL OR DER IS INCORRECT AND INCOMPLETE AS IT DEALT WITH THE MATTERS NOT RAISED AND SILENT ON THE MATTER RAISED BEFORE IT. 2. THE LD. COUNSEL FOR THE ASSESSEE, WHILE REITERA TING THE SUBMISSIONS AS MADE IN THE MP HAS EMPHATICALLY PLEADED THAT THE ORDER OF T HE TRIBUNAL IS NOT ONLY INCOMPLETE, BUT NO FINAL DECISION HAS BEEN GIVEN BY THE TRIBUNA L ON THE POINT OF REOPENING, AND OTHER ISSUES RAISED BY THE DEPARTMENT IN THE MEMORANDUM O F APPEAL, HAVE NOT BEEN PROPERLY DEALT WITH AND DECIDED, WHEREAS, THE DECISION HAS B EEN GIVEN FOR THE ISSUE NOT RAISED IN M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 2 THE APPEAL. SO, THE ORDER OF THE TRIBUNAL REQUIRES TO BE RECALLED AND SHOULD BE FIXED FOR HEARING AGAIN TO GIVE DUE OPPORTUNITY TO THE PARTIE S. IT WAS THUS, PRAYED FOR RECALLING OF THE ORDER. 3. THE LD. DR OPPOSED THE APPLICATION OF THE ASSES SEE BY PLEADING THAT IT IS CONSCIOUS DECISION TAKEN BY THE TRIBUNAL CONSIDERIN G EACH AND EVERY ASPECT OF THE MATTER AS RAISED BEFORE IT BY THE DEPARTMENT AND TH E DEPARTMENT HAS GOT NO GRIEVANCE ABOUT THE ORDER PASSED BY THE TRIBUNAL AND MOREOVER , THE ASSESSEE HAS NEITHER FILED ANY APPEAL AGAINST THE ORDER OF THE LD. CIT(A) NOR HAS COME IN CO ON FILING THE APPEAL BY THE DEPARTMENT. SO, THE ASSESSEE HAS NO LOCUS ST ANDI TO FILE THE PRESENT APPLICATION, WHICH IS OTHERWISE, DEVOID OF ANY MERITS AND NEEDS TO BE DISMISSED. THE LD. DR HAS FURTHER SUBMITTED THAT VALID REASONS HAVE BEEN GIVE N BY THE TRIBUNAL BY PASSING A DETAILED AND ELABORATE ORDER TOUCHING ALL ASPECTS O F THE MATTER, SO IT DOES NOT REQUIRE ANY INTERFERENCE AND THE DEPARTMENT IS OTHERWISE SA TISFIED THAT PROPER OPPORTUNITY HAS BEEN GIVEN TO BOTH THE SIDES AND REVISION OF THE OR DER IS OTHERWISE NOT PERMISSIBLE UNDER SECTION 254(2), THEREFORE, THE APPLICATION OF THE A SSESSEE BEING WITHOUT MERIT SHOULD BE DISMISSED. MOREOVER, THE ORDER OF THE TRIBUNAL CANN OT LEGALLY BE DISTURBED FOR GIVING OPPORTUNITY TO ONE PARTY WHEN DURING APPEAL PROCEED INGS, PROPER OPPORTUNITY HAS BEEN GIVEN TO BOTH THE SIDES. IN THIS CASE, THE ASSESSEE HAS BEEN DULY REPRESENTED BY ASSESSEES COUNSEL DURING HEARING OF APPEAL, THEREF ORE, THE APPLICATION OF THE ASSESSEE IS LIABLE TO BE DISMISSED, WHICH MAY BE DISMISSED. 4. TO COUNTER THE SUBMISSIONS OF THE LD. DR, THE L D. COUNSEL FOR THE ASSESSEE AGAIN SUBMITTED THAT THERE IS NO FINDING AND NO VALID GRO UND IN THE DECISION TAKEN BY THE TRIBUNAL THOUGH ALL THE ISSUES WERE MENTIONED AND D ISCUSSED. THEREFORE, THE ORDER M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 3 PASSED UNDER SECTION 254(1) SHOULD BE RECALLED AND PROPER OPPORTUNITY BE GIVEN TO BOTH THE SIDES FOR REHEARING OF THE APPEAL AFRESH. RELIA NCE WAS PLACED ON THE DECISION OF HONBLE MYSORE HIGH COURT IN THE CASE OF PATHIKONDA BALASUBBA SETTY (DECEASED) V. CIT 65 ITR 252 (PAGE 256 AND 257) AND IN THE CASE O F KARNATAKA STATE FOREST INDUSTRIES CORPORATION LTD. V. CIT 201 ITR 674 (KAR ) (PAGE 679 AND 680) TO SUPPORT THE PLEA RAISED AND ARGUED. 5. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MA TERIAL ON RECORD AS WELL AS PRECEDENTS RELIED UPON BY THE LD. COUNSEL FOR THE A SSESSEE. IT IS NOT IN DISPUTE THAT THE APPEAL OF THE REVENUE IN ITA NO. 1503/MDS/2007 FOR THE ASSESSMENT YEAR 2001-02 HAS BEEN DISPOSED OF BY THIS BENCH BY PASSING DETAILED ORDER RUNNING INTO 20 PAGES AND THE ASSESSEE HAS NOT EITHER FILED ANY APPEAL AGAINST TH E ORDER PASSED BY THE LD. CIT(A) II, MADURAI DATED 21.03.2007 OR ANY CO AFTER HAVING REC EIVED INTIMATION OF FILING OF APPEAL BY THE DEPARTMENT AGAINST SUCH ORDER. IT IS ALSO NO T IN DISPUTE THAT THE DEPARTMENT HAS NOT FILED ANY MA AGAINST THE TRIBUNALS ORDER DATED 08.04.2011 IN THIS CASE. THE ASSESSEE IS TAKING UP THE ISSUE IN THE APPLICATION WITH THE PRAYER FOR RECALLING OF THE ORDER DATED 08.04.2011 FOR REHEARING AND PASSING FR ESH ORDER WITHOUT ESTABLISHING ITS BASIS FOR SUCH PRAYER. SINCE PROPER OPPORTUNITY WAS AFFORDED TO BOTH THE SIDES AND THE ASSESSEE WAS DULY REPRESENTED BEFORE THE TRIBUNAL A T THE TIME OF HEARING OF THE APPEAL BY SHRI T.N. SEETHARAMAN & SHRI R. KUMAR, WHO ARE T HE COUNSELS PRESENT DURING THE HEARING OF THE APPLICATION, WHOSE ARGUMENTS HAVE DU LY BEEN CONSIDERED FOR ARRIVING AT THE CONCLUSION AS ARRIVED BY THE TRIBUNAL WITH REGA RD TO REOPENING ISSUE FROM PARA 4, 5, 6 7 AND 8 TO 8.3, WHEREAS ON MERITS, THE TRIBUNAL H AS PASSED THE ORDER FROM PARA 9.1 TO 9.7 OF ITS ORDER AFTER MAKING ELABORATE DISCUSSIONS ON THE ISSUES RAISED IN THE LIGHT OF M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 4 RELEVANT CASE LAW AND PROVISIONS OF LAW BY PASSING A DETAILED ORDER. THE ASSESSEE HAS ALSO NOT BEEN ABLE TO POINT OUT ANY APPARENT MISTAK E IN THE ORDER AND THIS BENCH ALSO HAS NOT BEEN ABLE TO FIND ANY SUCH MISTAKE IN THE O RDER. OTHERWISE, LAW DOES NOT PROVIDE FOR RECALLING OF THE ORDER IN APPEAL ALREAD Y DETERMINED, JUST FOR GIVING REHEARING. IN CASE PRAYER OF THE ASSESSEE IS ACCEPTED, IT WOUL D AMOUNT TO REVIEW OF THE ORDER, WHICH, HAS RIGHTLY BEEN POINTED OUT BY THE LD. DR, IS NOT PERMISSIBLE UNDER LAW. SECTION 254(2) OF THE ACT MAKES IT AMPLY CLEAR THAT A MIST AKE APPARENT FROM THE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APPLICATION OF SECTION 254(2), A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWE R TO RECTIFY 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 ERROR IN INTERPRETING, IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONC EPTION. APPARENT 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 LANGU AGE USED IN SECTION 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF TH E TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, THE AMENDMEN T OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2). FURTHER, WHERE AN ERROR IS FAR FROM SELF-EVIDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 254(2) IS NOT CONF INED TO CLERICAL OR ARITHMETICAL 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 THE SUPREME M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 5 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 S HOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORATE ARGUME NTS ON QUESTIONS 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, 19 08 IS DIFFERENT FROM THE LANGUAGE USED IN SECTION 254(2) OF THE ACT. POWER IS GIVEN T O VARIOUS AUTHORITIES TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD IS UNDOUBTEDLY N OT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN ER ROR APPARENT ON THE FACE OF THE RECORD. MISTAKE IS AN ORDINARY WORD, BUT IN TAXATION LAWS, IT HAS A SPECIAL SIGNIFICANCE. IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WITHIN ITS PURVIEW. IT COMPREHENDS ERRORS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECO RD FROM WHICH IT IS SUPPOSED TO EMANATE, ARE DISCERNED. THE WORD MISTAKE IS INHER ENTLY INDEFINITE IN SCOPE, 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 INDISCERN IBLE. IT IS SOMETHING WHICH A DULY AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE R ECORD. IN ORDER TO ATTRACT THE POWER TO RECTIFY UNDER SECTION 254(2) IT IS NOT SUFFICIENT I F THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO BE RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM THE RECORD. A DECISION ON THE DEBATABLE POINT OF LAW OR UNDISPU TED QUESTION OF FACT 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 DEBATABL E POINT OF LAW OR FACT OR FAILURE TO APPLY M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 6 THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVES TIGATED CANNOT 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: 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 M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 7 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: 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 M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 8 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 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. M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 9 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. 5.5 THE HONBLE JURISDICTIONAL HIGH COURT IN THE CA SE OF EXPRESS NEWSPAPERS LIMITED V. DCIT [2010] 320 ITR 12 (MAD) HAS HELD AS UNDER: 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. 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. M.A. M.A. M.A. M.A. NO. NO. NO. NO.1 11 137 3737 37/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 10 7. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E ASSESSEE GETS DISMISSED. ORDER PRONOUNCED ON 02.09.2011. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER VM/- DATED :. 02.09.2011. COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.