Smt. Rahina Ahmed, Hyderabad V. ITO, Hyderabad

MA 139/HYD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8970 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-03-2011
• Assessment Year: misc
• Appeal Filed On: 06-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO. / ITA NO. A.Y. APPELLANT RESPONDENT MA NO. 139/HYD/10 IN ITA NO. 1220/HYD/09 1999 - 2000 SMT. RUHINA AHMED REP. BY GPA SRI MA MANNAN KHAN HYDERABAD; GIR NO. R-701/5(3) INCOME TAX OFFICER WARD-5(3) HYDERABAD MA NO. 1 40 /HYD/10 IN ITA NO. 1221/HYD/09 1999 - 200 1 MA NO. 1 41 /HYD/10 IN ITA NO. 1222/HYD/09 2001 - 200 2 MA NO. 1 42 /HYD/10 IN ITA NO. 1223/HYD/09 2002 - 200 3 MA NO. 1 43 /HYD/10 IN ITA NO. 1224/HYD/09 1999 - 2000 SRI SYED MEERAJ AHMED REP. BY GPA SRI MA MANNAN KHAN HYDERABAD; GIR NO. S-701/5(3) MA NO. 1 44 /HYD/10 IN ITA NO. 1225/HYD/09 2000 - 200 1 MA NO. 1 45 /HYD/10 IN ITA NO. 1226/HYD/09 2001 - 200 2 MA NO. 1 46 /HYD/10 IN ITA NO. 1227/HYD/09 2002 - 200 3 MA NO. 1 47 /HYD/10 IN ITA NO. 1228/HYD/09 1999 - 200 0 SMT. NAYEEMUNNISA BEGUM REP. BY GPA SRI MA MANNAN KHAN HYDERABAD; GIR NO. N-701/5(3) MA NO. 1 48 /HYD/10 IN ITA NO. 1229/HYD/09 200 0 - 2001 MA NO. 1 49 /HYD/10 IN ITA NO. 1230/HYD/09 200 1 - 2002 MA NO. 1 50 /HYD/10 IN ITA NO. 1231/HYD/09 200 2 - 2003 MA NO. 1 51 /HYD/10 IN ITA NO. 1232/HYD/09 1999 - 200 0 SRI ZIAUDDIN AHMED REP. BY GPA SRI MA MANNAN KHAN HYDERABAD; GIR NO. Z-701/5(3) MA NO. 1 52 /HYD/10 IN ITA NO. 1233/HYD/09 200 0 - 2001 MA NO. 1 53 /HYD/10 IN ITA NO. 1234/HYD/09 200 1 - 2002 MA NO. 1 54 /HYD/10 IN ITA NO. 1235/HYD/09 200 2 - 2003 MA NO. 1 55 /HYD/10 IN ITA NO. 1236/HYD/09 200 3 - 2004 APPELLANT BY: SRI A.V. RAGHURAM RESPONDENT BY: SMT. AMISHA S. GUPT DATE OF HEARING: 31 .08.2012 DATE OF PRONOUNCEMENT: 21.09.2012 M.A. NOS. 139-155/HYD/2010 SMT. RUHINA AHMED & ORS. ======================= 2 O R D E R PER CHANDRA POOJARI, AM: ALL THESE MISCELLANEOUS APPLICATIONS FILED BY DIFF ERENT ASSESSEES ARE SEEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 30 TH APRIL 2010 WHEREIN THE TRIBUNAL CONFIRMED THAT THERE IS VALID SERVICE OF NOTICE U/S. 148 OF T HE ACT TO THE ASSESSEE. 2. THE LEARNED AR SUBMITTED BEFORE US THAT THERE IS AN APPARENT ERROR APPEARING IN THE ORDER OF THE TRIBUNAL. HE DREW OUR ATTENTION TO PA GE NO. 15 SPECIFICALLY TO THE FOLLOWING SENTENCE IN THAT PARA 'IN MY VIEW, THE FACTS IN THE MATTER UNDER CONSIDER ATION DO NOT LEND ANY SUPPORT TO CONTENTION OF THE ASSESSEES COUNSEL THAT NOTICE CANNOT EVEN BE DEEMED TO HAVE BEEN RECEIVED AND SERVED WAS AS TO FOIST JURISDICTION OF THE ITO TO PROCEED WITH THE MATTER. THE VARIOUS DECISIONS RELIED BY THE ASSESSEES COUNSEL THUS DO NOT LEAD ANY ASSISTANCE TO THE ASSESSEES CONTENTION.' FURTHER HE SUBMITTED THAT THE TRIBUNAL ALSO OBSERVE D AS FOLLOWS: ' THE IRREGULARITY CANNOT BE SAID TO GO TO THE ROOT O F THE MATTER BUT MERE IRREGULARITY WHICH CAN ALWAYS BE WAIVED BY THE PARTIES.' 3. HE SUBMITTED THAT THERE IS A MISTAKE IN THE ORDER O F THE TRIBUNAL AND THE GENERAL OBSERVATION OF THE TRIBUNAL THAT THE VARIOUS DECISI ONS RELIED UPON BY THE ASSESSEE DO NOT LEAD SUPPORT TO THE CONTENTION OF THE ASSESSEE IS A FACT UAL ERROR. HE SUBMITTED THAT THE DECISION IN THE CASE OF ARUNLAL VS. ACIT (30 DTR 178) WAS NOT P ROPERLY CONSIDERED. ACCORDING TO THE LEARNED AR NOT FOLLOWING THE ABOVE DECISION IS MIST AKE APPARENT ON RECORD. FURTHER HE DREW OUR ATTENTION TO THE FOLLOWING SENTENCE IN PARA 15: 'THOUGH IT MAY BE TRUE THAT GPA HOLDER HAD NOT HAD ANY AUTHORITY TO ACCEPT THE NOTICE ON BEHALF OF THE ASSESSEE, BUT TH E FACTS REMAINS THAT THE GPA HOLDER DID RECEIVE THE NOTICE AND HAD HIRED THE CHARTERED ACCOUNTANT TO REPRESENT THE CASE BEFORE THE ITO.' 4. HE ALSO SUBMITTED THAT THE FOLLOWING OBSERVATION IN TRIBUNAL ORDER IN PARA 17 IS ALSO AN ERROR: ' IN SUCH SITUATION, THE SERVICE ON THE AGENT WHO WAS PERSONALLY CARRYING ON THE BUSINESS ON BEHALF OF THE ASSESSEE WOULD BE SUFFICIENT. IN THE INSTANT CASE, THE GPA HOLDER OF THE ASSESSEE RECEIVED THE NOTICE WHICH IS EVIDENT FROM THE ACKNOWLEDGEMENT FURNISHED BEFORE US. THE ASSESSEE WAS HAVING TRANSACTIONS IN INDIA AND WHEN THE NOTICE WAS SERVICED THROUGH THE PROCESS SERVER OF THE DEPARTME NT, THE NOTICE IS M.A. NOS. 139-155/HYD/2010 SMT. RUHINA AHMED & ORS. ======================= 3 DEEMED TO HAVE BEEN SERVED AS IT CAN ORDINARILY BE EXPECTED THAT THE PROCESS SERVER KNEW THE PERSON ON WHOM THE SERVICE WAS EFFECTED. FURTHER, IT IS ALSO NOT THE CASE THAT ASSESSEE HAD FILED ANY AUTHORIZATION FORM EMPOWERING ANY ONE PARTICULAR PE RSON TO RECEIVE NOTICE ON HIS BEHALF. THEREFORE, THE NOTICE SERVE D ON THE PERSON WHO IS A GPA HOLDER OF THE ASSESSEE AND WHO HAS ACTUAL LY RECEIVED THE NOTICE CANNOT BE SAID TO BE INVALID.' 5. FURTHER HE SUBMITTED THAT HAVING OBSERVED THUS THE TRIBUNAL HOLDS THAT THERE SHOULD BE VALID SERVICE OF NOTICE AND IT SHOULD BE SERVED IN TERMS OF CODE OF CPC, AND THE MERE FACT THAT THE RECIPIENT REPRESENTING THE ASSESSEE WOULD NOT BE SUFFICIENT TO HOLD THAT HE WAS AUTHORISED TO RECEIVE NOTICE. THE OBSERVATIONS OF THE TRIBUNAL EXTRACTED ABOVE ARE CONTRARY TO EACH OTHER. ANOTHER MISTAKE IS NOT CONSIDERING THE SUBMISSION THAT THE ADDRESS MENTIONED IN THE NOTICE CANNOT BE SAID TO BE THAT OF NON-RESI DENCE, SINCE IT IS BUSINESS ADDRESS AND NOT RESIDENTIAL ADDRESS. 6. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT TH ERE IS NO MISTAKE APPARENT ON RECORD WHICH WARRANTS RECALL OF THE ORDER OF THE TR IBUNAL. SHE RELIED ON THE DECISION IN THE CASE OF V.T. SOMASUNDARAM VS. ITO, 70 ITD 398 (CHEN NAI) WHEREIN IT WAS HELD AS FOLLOWS: ' HELD, IT WAS NOT THE CASE OF THE ASSESSEE THAT THERE HAD BEEN GLARING AND PATENT MISTAKE EITHER OF FACTS OR LAW COMMITTE D BY THIS TRIBUNAL. THE GRIEVANCE OF THE ASSESSEE WAS THAT EACH AND EVE RY PAPER TO WHICH REFERENCE WAS MADE OR ATTENTION DRAWN AT THE TIME O F HEARING OF THE APPEALS HAD NOT BEEN ELABORATELY DISCUSSED AND IT W AS NOT SHOWN AS TO HOW ON THE BASIS OF THESE DOCUMENTS THE APPEALS WERE STILL NOT ALLOWABLE. THE SECOND GRIEVANCE MADE OUT BY THE ASS ESSEE WAS THAT THERE WAS NO DISCUSSION AS TO HOW THE TWO JUDGMENTS CITED AND RELIED UPON WERE NOT RELEVANT AND HAD NO APPLICABILITY SO AS TO ALLOW THE APPEAL. IN VIEW OF THESE, THE ASSESSEE WANTED TO R ECALL OF THE ORDER AND A FRESH DECISION AFTER HEARING. IN THE JUDGMEN T IN QUESTION, IT HAD BEEN STATED BY THE TRIBUNAL THAT THE FACTS OF T HIS CASE AS WELL AS THE ARGUMENTS PUT FORTH BY THE RIVAL PARTIES WERE E XAMINED. THESE OBSERVATIONS CLEARLY INDICATED THE APPLICATION OF M IND BY THE TRIBUNAL AND CONSIDERATION OF THE RELEVANT MATERIAL INCLUDING THE CASE LAWS CITED DURING THE COURSE OF HEARING OF THE APPEALS. FOR THE SIMPLE REASON THAT EACH AND EVERY DOCUMENT OR EACH AND EVERY SENTENCE OR PARAGRAPH FROM SUCH DOCUMENTS HAD NOT B EEN THREADBARED AND ELABORATELY DISCUSSED IN THE APPEAL ORDER DID NOT MEAN THAT THERE HAD BEEN NON-APPLICATION OF MIND OR NON- CONSIDERATION OF THE RELEVANT MATERIAL FOR ARRIVING AT THE DECISION BY THE TRIBUNAL. IT WAS SUFFICIENT IF THE TRIBUNAL STA TED THAT THERE HAD BEEN EXAMINATION OF THE FACTS OF THIS CASE AS WELL AS ARGUMENTS PUT FORTH BY THE RIVAL PARTIES. M.A. NOS. 139-155/HYD/2010 SMT. RUHINA AHMED & ORS. ======================= 4 IT IS NOT NECESSARY OR IMPERATIVE ON THE PART OF T HE APPELLATE AUTHORITY THAT IT SHOULD GIVE ADDITIONAL OR SEPARAT E REASONS IF THE TRIBUNAL IS IN AGREEMENT WITH THE REASONS GIVEN BY THE LOWER TAX AUTHORITIES. IN THE INSTANT CASE, THE TRIBUNAL DID NOT DEEM IT FIT AND PROPER TO GIVE ELABORATE ADDITIONAL REASONS TO UPHOLD THE IMPUGNED ORDER OF THE APPELLATE COMMISSIONER AND MERELY ENDORSED THE REASONING AND CONCLUSION GIVEN BY HIM. NOT ONLY THAT, THE TRIBUN AL WENT A STEP AHEAD AND STATED THAT THE DISCUSSION MADE BY THE AP PELLATE COMMISSIONER AND THE CONCLUSION DRAWN ON ACCOUNT OF ACCRUAL OF INCOME WERE REASONABLE AND JUSTIFIED NOTHING FURTHE R OR MORE WAS REQUIRED TO BE STATED OR NARRATED IN THE APPEAL ORD ER. FROM THE CONTENTS OF THE WRITTEN APPLICATION AS WE LL AS THE ARGUMENTS OF THE ASSESSEE, IT APPEARED THAT THE ASS ESSEE WANTED ANOTHER DECISION NOT BEING HAPPY WITH THE DECISION RENDERED IN THE APPEAL ORDER. IF THIS EXERCISE WAS TO BE DONE BY TH IS TRIBUNAL, IT AMOUNTED TO REVIEWING THE EARLIER DECISION. IT IS F AIRLY SETTLED AND A TRITE LAW THAT POWER TO REVIEW IS A SPECIFIC POWER WHICH HAS TO BE CONFERRED SPECIFICALLY BY THE LEGISLATURE AND IT CA NNOT BE INFERRED AS ANCILLARY OR INHERENT TO THE APPELLATE JURISDICTION . THE TRIBUNAL IS A CREATURE OF THE INCOME-TAX ACT, AND IT IS WELL-SETT LED LEGAL PROPOSITION THAT THE TRIBUNAL HAS NO INHERENT POWER OF REVIEWIN G ITS ORDER ON MERITS THOUGH IT HAS INCIDENTAL OR ANCILLARY POWERS WHICH CAN BE EXERCISED IN ORDER TO MAKE THE APPEAL EFFECTIVE. BU T SUCH POWER CANNOT BE INVOKED TO RE-HEAR A CASE ON MERITS. ONCE AN ORDER IS PASSED UNDER SECTION 245(1), THE TRIBUNAL BECOME FUNCTUS OFFICIO SUBJECT TO THE PROVISIONS OF SECTION 256(1). IT CAN HEAR AN APPLICATION UNDER SECTION 254(2) ONLY TO RECTIFY A MISTAKE APPARENT ON RECORD AND NOT FOR REVIEW OF ITS ORDER. THE SUPREME COURT IN THE FAMOUS CASE OF PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI AIR 1970 SC 1273 HAVE LAID DOWN THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER BUT HAS TO BE CONFERRED BY LAW EITHER SPECIFICALLY OR BV NE CESSARY IMPLICATIONS. IT, THERE/ORE, DOES NOT STAND TO REAS ON THAT IF THE POWER OF REVIEW IS NOT WITH THE TRIBUNAL, IT CAN NONETHEL ESS EXERCISE SUCH A POWER INDIRECTLY IN TERMS OF SECTION 254(2) WHEN IT CANNOT BE DONE SO DIRECTLY THERE BEING NO SPECIFIC POWER CONFERRED. AS THE TRIBUNAL IS NOT A COURT IT HAS NO POWER TO REVIEW ITS OWN ORDER S. THE NORMAL RULE, THEREFORE, IS THAT THE REMEDY BY WAY OF REVIEW IS A CREATURE BY STATUTE. AND IF THE STATUTE DOES NOT CONTAIN POWER FOR REVIEW, THEN THE POWER CANNOT BE EXERCISE D AT ALL. REVIEW PROCEEDINGS IMPLY THOSE PROCEEDINGS WHERE A PARTY A S OF RIGHT CAN APPLY FOR RECONSIDERATION OF THE MATTER ALREADY DEC IDED UPON AFTER A FRESH HEARING ON THE MERITS OF THE CONTROVERSY BETW EEN THE PARTIES. BUT SUCH A REMEDY IS AVAILABLE ONLY IF PROVIDED BY THE STATUTE. EVEN M.A. NOS. 139-155/HYD/2010 SMT. RUHINA AHMED & ORS. ======================= 5 ASSUMING THAT THE STATUTE DOES CONFER POWER OF REVI EW THEN SUCH A POWER OF REVIEW CAN ONLY BE EXERCISED WITHIN THE PA RAMETERS FIXED BY THE STATUTE ITSELF. THEREFORE, THE TRIBUNAL HAVING ALREADY DELIVERED A JUDGMENT WHICH BY OPERATION OF LAW HAD BECOME FINAL, IT \VAS NOT ELIGIBLE, AUTHORISED OR EMPOWERED TO REVIEW ITS OWN DECISION IN A SUBSEQUEN T PROCEEDING BROUGHT EITHER IN THE GUISE OF RECTIFICA TION PROCEEDINGS UNDER SECTION 254(2) OR IN ANY OTHER MANNER. THEREFORE, THE MISCELLANEOUS PETITIONS WERE DISMISSED' 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. IN THIS CASE THE TRIBUNAL AFTER CONSIDERING THE ENTIRE FACTS AND CIR CUMSTANCES OF THE CASE HELD THAT THERE IS VALID SERVICE OF NOTICE U/S. 148 OF THE ACT. THE O RDER OF THE TRIBUNAL MAY NOT BE DRAFTED IN A MANNER AS THE ASSESSEE WANTED. BECAUSE THE ORDER I S NOT IN FAVOUR OF THE ASSESSEE THAT CANNOT BE SAID TO BE AN ERROR HAVING MISTAKE APPARE NT ON RECORD. THE TRIBUNAL CANNOT BE SAID TO BE COMMITTED AN ERROR AS THE TRIBUNAL NOT E LABORATELY GIVEN THE FINDING THAT THE ORDER OF THE TRIBUNAL RELIED UPON BY THE ASSESSEES COUNS EL IS NOT ANALYSED. THE TRIBUNAL AFTER TAKING DUE CARE TAKEN A CONSCIOUS DECISION THAT THE RE IS A VALID SERVICE OF NOTICE U/S. 148 OF THE ACT. 8. FURTHER IT IS WELL SETTLED THAT STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONFERRED. THERE I S NO EXPRESS POWER OF REVIEW CONFERRED ON THIS TRIBUNAL. EVEN OTHERWISE, THE SCOPE OF REVIEW DOES NOT EXTENT TO RE-HEARING OF THE CASE ON MERIT. IT IS HELD IN THE CASE OF CIT VS. PEARL WOOLLEN MILLS (330 ITR 164): HELD, THAT THE TRIBUNAL COULD NOT READJUDICATE THE MATTER UNDER SECTION 254(2). IT IS WELL SETTLED THAT A STATUTOR Y AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRE SSLY CONFERRED. THERE WAS NO EXPRESS POWER OF REVIEW CONFERRED ON T HE TRIBUNAL. EVEN OTHERWISE, THE SCOPE OF REVIEW DID NOT EXTENT TO REHEARING A CASE ON THE MERITS. NEITHER BY INVOKING INHERENT POWER NOR THE PRINCIPLE OF MISTAKE OF COURT NOT PREJUDICING A LITIGANT NOR BY INVOLVING DOCTRINE OF INCIDENTAL POWER, COULD THE TRIBUNAL RE VERSE A DECISION ON THE MERITS. THE TRIBUNAL WAS NOT JUSTIFIED IN R ECALLING ITS PREVIOUS FINDING RESTORING THE ADDITION, MORE SO WHEN AN APP LICATION FOR THE SAME RELIEF HAD BEEN EARLIER DISMISSED. 9. THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254(2 ) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FR OM THE RECORD. WE SHALL FIRST DEAL WITH THE QUESTION OF THE POWER OF THE TRIBUNAL TO RECALL AN ORDER IN ITS ENTIRETY. RECALLING THE ENTIRE ORDER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER . THAT DOES NOT APPEAR TO BE THE M.A. NOS. 139-155/HYD/2010 SMT. RUHINA AHMED & ORS. ======================= 6 LEGISLATIVE INTENT. THE ORDER PASSED BY THE TRIBUN AL UNDER S. 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED U NDER S. 254(2) EITHER ALLOWING THE AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMENDED OR REMAINING UN-AMENDED IS THE EFFECTIVE OR DER FOR ALL PRACTICAL PURPOSES. AN ORDER UNDER S. 254(2) DOES NOT HAVE EXISTENCE DE HORS THE ORDER UNDER S. 254(1). RECALLING OF THE ORDER IS NOT PERMISSIBLE UNDER S. 254(2). RECALLIN G OF AN ORDER AUTOMATICALLY NECESSITATES REHEARING AND RE-ADJUDICATION OF THE ENTIRE SUBJECT -MATTER OF APPEAL. THE DISPUTE NO LONGER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECT IFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE ITAT RULES, 1 963, AND THAT TOO ONLY IN CASE WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR B EING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX-PARTE. JUDGED IN T HE ABOVE BACKGROUND THE ORDER PASSED BY THE TRIBUNAL IS INDEFENSIBLE. 10. THE WORDS USED IN S. 254(2) ARE SHALL MAKE SUCH AM ENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE. CLEARLY, IF THERE IS A MIS TAKE, THEN AN AMENDMENT IS REQUIRED TO BE CARRIED OUT IN THE ORIGINAL ORDER TO CORRECT THAT P ARTICULAR MISTAKE. THE PROVISION DOES NOT INDICATE THAT THE TRIBUNAL CAN RECALL THE ENTIRE OR DER AND PASS A FRESH DECISION. THAT WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDER AND THAT IS NOT PERMISSIBLE UNDER THE IT ACT. THE POWER TO RECTIFY A MISTAKE UNDER S. 254(2) CANNOT BE USED FOR RECALLING THE ENTIRE ORDER. NO POWER OF REVIEW HAS BEEN GIVEN TO THE TRIBUNAL UNDER THE IT ACT. THUS, WHAT IT COULD NOT DO DIRECTLY COULD NOT BE ALLOWED TO BE DONE INDIRECTLY. 11. IN THE CASE OF CIT VS. HINDUSTAN COCA COLA BEVERAGE S (P) LTD. (2007) 207 CTR (DEL) 119; (2007) 293 ITR 163 (DEL), THEIR LORDSHIPS WHIL E CONSIDERING THE POWERS OF THE TRIBUNAL UNDER S. 254(2) OF THE IT ACT, 1961 OBSERVED AS UND ER: UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVER, IT IS PLAI N THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO R EVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A S PECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT TH E PRE-REQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD), BY ITS VERY NATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED. 12. THUS THE SCOPE AND AMBIT OF APPLICATION U/S. 254(2) IS AS FOLLOWS: (A) FIRSTLY, THE SCOPE AND AMBIT OF APPLICATION OF S. 2 54(2) OF IT ACT IS RESTRICTED TO RECTIFICATION OF THE MISTAKES APPAREN T FROM THE RECORD. M.A. NOS. 139-155/HYD/2010 SMT. RUHINA AHMED & ORS. ======================= 7 (B) SECONDLY, THAT NO PARTY APPEARING BEFORE THE TRIBUN AL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL AND IF THE PREJUDICE HAS RESULTED TO THE PARTY, WHICH PREJUDIC E IS ATTRIBUTABLE TO THE TRIBUNALS MISTAKE/ERROR OR OMISSION, AND WHICH AN ERROR IS A MANIFEST ERROR, THEN THE TRIBUNAL WOULD BE JUSTIFIE D IN RECTIFYING ITS MISTAKE. THE RULE OF PRECEDENT IS AN IMPORTANT A SPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND THAT PRINCIPLE IS NOT OBLITERATED BY S. 254(2) OF THE ACT AND NON-CONSIDERATION OF PRECEDEN T BY THE TRIBUNAL CAUSES A PREJUDICE TO THE ASSESSEE. (C) THIRDLY, POWER TO RECTIFY A MISTAKE IS NOT EQUIVALE NT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. (D) FOURTHLY, UNDER S. 254(2) AN OVERSIGHT OF A FACT CA NNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER THE SECTION. (E) FIFTHLY, FAILURE ON THE PART OF THE TRIBUNAL TO CON SIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGEMENT. (F) SIXTHLY, EVEN IF ON THE BASIS OF A WRONG CONCLUSION THE TRIBUNAL HAS NOT ALLOWED A CLAIM OF THE PARTY IT WILL NOT BE A G ROUND FOR MOVING AN APPLICATION UNDER S. 254(2) OF THE ACT. (G) LASTLY, IN THE GARB OF AN APPLICATION FOR RECTIFICA TION UNDER S. 254(2) THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND REAR GUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF S. 254(2) OF THE IT ACT. 13. IN OUR OPINION THE TRIBUNAL METICULOUSLY MENTIONED ARGUMENTS OF THE ASSESSEES COUNSEL, THE POINTS RAISED HIM, RELEVANT CASE-LAW R ELIED ON BY THE AR AND AFTER CONSIDERING THE ARGUMENTS OF THE ASSESSEES COUNSEL PASSED THE ORDER. BEING SO, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE TRIBUNAL AND THE PETI TION FILED BY THE ASSESSEE CANNOT BE SAID TO BE FALLS UNDER THE PURVIEW OF SECTION 254 OF THE ACT. 14. IN THE RESULT, ALL THE PETITIONS FILED BY THE ASSES SEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER, 2012. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 21 ST SEPTEMBER, 2012 TPRAO M.A. NOS. 139-155/HYD/2010 SMT. RUHINA AHMED & ORS. ======================= 8 COPY FORWARDED TO: 1. SMT. RUHINA AHMED (REP. BY GPA SRI M.A. MANNAN KHAN) C/O. M/S. K. VASANT KUMAR, AV RAGHURAM & B. PEDDI RAJULU, ADVOCATES, FLAT NO. 610, 6 TH FLOOR, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD-500 004. 2. SRI SYED MEERAJ AHMED (REP. BY GPA SRI M.A. MANNAN KHAN) 3. SMT. NAYEEMUNNISA BEGUM (REP. BY GPA SRI M.A. MANNAN KHAN) 4. SRI ZIAUDDIN AHMED (REP. BY GPA SRI M.A. MANNAN KHAN) 5 . THE INCOME TAX OFFICER, WARD - 5(3) , HYDERABAD. 6 . THE CIT(A) - V, HYDERABAD. 7 . THE CIT CONCERNED , HYDERABAD. 8 . THE DR B BENCH, ITAT, HYDERABAD