M/s Sheetal Shipping & Metal Processors Ltd, Hyderabad V. DCIT, Circle -3(1), Hyderabad

MA 171/HYD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9696 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 31-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Assessee Lawyers: KALYAN DAS
• Keywords: Rectification of order; Opportunity of being heard; Difference of opinion; Change of opinion
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MISC. APPLN. NO171/HYD/2012 (IN ITA NO.1168/HYD/2009) : ASSESSMENT YEAR 2005-06 M/S. S HEETAL SHIPPING & M ETAL ME PROCESSORS LTD., HYDERABAD ( PAN AABCS 9538 H) V/S. DY. COMMISSIONER OF INCOME - TA X CIRCLE 3(10), HYDERABAD. (APPL IC ANT) (RESPONDENT) APPLICANT BY : SHRI KALYANDAS RESPONDENT BY : SHRI M.H.NAIK, DR DATE OF H EARING 2 . 11 .2012 DATE OF PRONOUNCEMENT 7.12.2012 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME- TAX ACT, 1961, THE APPLICANT-ASSESSEE HAS PRAYED FOR RECTIFICATION /RECALL OF THE ORDER OF THIS TRIBUNAL DATED 8.6.2012 ON THE APPEAL OF THE REVENU E, BEING ITA NO.1168/HYD/2009 FOR THE ASSESSMENT YEAR 2005-06, O N THE GROUND THAT CERTAIN MISTAKES APPARENT FROM THE SAME HAVE CREPT INTO THE SAME. 2. REITERATING THE DETAILED AVERMENTS MADE IN THE PRESENT APPLICATION, THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI KALYANDAS, SUBMITTED THAT THE ASSESSEE HAS CLEARLY BROUGHT OUT THE FACTS OF THE CASE AND FILED MATERIAL PAPERS ON RECORD, AND BESIDES ARGUING AT L ENGTH TO SUBSTANTIATE THE 2 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD CLAIM OF THE ASSESSEE WITH REGARD TO THE POINT AT D ISPUTE IN THE APPEAL, VIZ. ADDITION UNDER S.68 OF THE ACT MADE DISBELIEVING TH E VERSION OF THE ASSESSEE WITH REGARD TO INVESTMENT IN THE SHARE CAPITAL OF T HE ASSESSEE COMPANY BY THREE COMPANIES, FILED WRITTEN SUBMISSIONS ON THE D IRECTIONS OF THE TRIBUNAL. IT IS FURTHER SUBMITTED THAT IN THE PROCEEDINGS BEF ORE THE TRIBUNAL, IT WAS STATED THAT THE LOWER AUTHORITIES HAVE MADE IN DEPT H ENQUIRIES AND INVESTIGATIONS IN SUPPORT OF SHARE ALLOTMENT MONEY RECEIVED BY THE ASSESSEE ON PUBLIC SUBSCRIPTION FROM THE THREE SHARE HOLDERS UNDER DISPUTE AND PURSUANT TO ENQUIRIES, THE ASSESSING OFFICER RENDER ED TWO REMAND REPORTS DATED 12.2.2009 AND 30.3.2009, WHICH FORMED PART OF THE RECORDS. IT WAS FURTHER STATED THAT THE CIT(A) AFTER CONSIDERING TH E REMAND REPORTS AND EVIDENCE AND THE DECISIONS OF THE APEX COURT, JURIS DICTIONAL HIGH COURT AND OTHER COURTS, AND THE DECISIONS OF THE HYDERABAD BE NCH AND OTHER BENCHES OF THE TRIBUNAL RELIED UPON BY THE ASSESSEE ALLOWED T HE APPEAL OF THE ASSESSEE. IT IS SUBMITTED THAT BOTH THE REMAND REPORTS RENDER ED BY THE ASSESSING OFFICER DISCLOSE THE FACT THAT THE SAID THREE SHARE HOLDERS UNDER DISPUTE WERE REGULARLY ASSESSED TO TAX AND FILED THEIR INCOME-TA X RETURNS ALONGWITH THEIR BALANCE SHEETS FOR THE RELEVANT ASSESSMENT YEAR 200 5-06, BEFORE THEIR ASSESSING OFFICER AND THEIR IDENTITY WITH PAN NOS. WAS ESTABLISHED. FURTHER, THE ASSESSEE MADE SUBMISSIONS ON BOTH THE REMAND RE PORTS THROUGH LETTERS DATED 20.3.2009, 29.4.2009 AND 22.9.2008 AND THE SA ID LETTERS ALSO FORMED PART OF THE PAPER-BOOK FILED BY THE ASSESSEE BEFOR E THE TRIBUNAL. 3. IT WAS FURTHER SUBMITTED THAT IN THE COURSE OF HEARING BEFORE THE TRIBUNAL, THE ASSESSEE RELIED UPON THE DECISIONS OF THE APEX COURT IN STELLAR INVESTMENTS (251 ITR 263) AND THE DECISION OF JURIS DICTIONAL HIGH COURT IN LANCO INDUSTRIES LTD. (242 ITR 357) AND TWO DECISIO NS OF THE COORDINATE 3 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD BENCH, HYDERABAD REPORTED IN VALUELINE SECURITIES ( INDIA) LTD. V/S. ACIT(108 ITD 639) WHICH HAD FOLLOWED ITS EARLIER DECISION IN M/S. M.K. SECURITIES LTD.(ITA NO.196/HYD/1997 ORDER DATED 30.8.2002). INVITING OUR ATTENTION TO THE RATIO LAID DOWN IN THE DECISIONS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE AS NOTED ABOVE, IT IS SUBMITTED THAT THIS TRIBUNAL IN ITS ORDER DATED 8.6.2012 DID NOT DEAL WITH THE ABOVE DECISIONS; D ID NOT GIVE ANY FINDING AS TO WHETHER THE LAW DELIVERED IN THOSE DECISIONS IS APPLICABLE TO THE CASE OF THE RESPONDENT-ASSESSEE IN THE APPEAL BEFORE IT OR NOT. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, THIS FINDING IS VERY VITA L TO RENDER JUSTICE TO THE RESPONDENT-ASSESSEE. ON THE CONTRARY, DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V/S. OASIS HOSPITALITIES P VT. LTD.(ITA NOS.2093 OF 2010 AND OTHERS DATED 31 ST JANUARY, 2011) RELIED UPON BY THE REVENUE WAS DISCUSSED AND DEALT BY THE TRIBUNAL WHILE ARRIVING AT ITS CONCLUSIONS. 4. IT IS FURTHER SUBMITTED THAT THE TRIBUNAL IN P ARA 10 OF ITS ORDER REFERRED TO THE DECISION OF THE HONBLE SUPREME COU RT IN ANIS AHMED AND SONS (297 ITR 441) RELIED UPON BY THE ASSESSEE, ACC ORDING TO WHICH THE ASSESSING OFFICER CANNOT DRAW ANY ADVERSE INFERENCE BECAUSE THE LETTER ISSUED BY HIM RETURNED UNSERVED. THE ASSESSEE FURTHER SUB MITTED DURING APPEAL HEARING, ACCORDING TO THE LEARNED COUNSEL, THE SHAR E APPLICANT COMPANIES FILED AFFIDAVITS AND AS PER THE DECISION OF THE HO BLE SUPREME COURT IN MEHATA PARIK & CO.(30 ITR 181) RELIED UPON BY THE RESPONDE NT-ASSESSEE, THE ASSESSING OFFICER HAVING NOT PURSUED THE MATTER FUR THER SHOULD HAVE ACCEPTED THE STATEMENTS MADE THEREIN BY THE SHARE-APPLICANTS . WHILE THE ABOVE FACTS WERE BROUGHT ON RECORD AND THE TRIBUNAL DID NOT GIV E ANY FINDING ON THE ABOVE DECISIONS, NOR THE ISSUE WAS ADJUDICATED AS T O THE APPLICABILITY OF THE ABOVE DECISIONS OF SUPREME COURT TO THE CASE OF RES PONDENT BEFORE IT. 4 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD 5. IT IS FURTHER SUBMITTED THAT THE ASSESSEE DURI NG THE APPEAL HEARING FURTHER RELIED UPON THE DECISION OF THE ALL AHABAD BENCH OF THE TRIBUNAL REPORTED AT RAJ KUMAR JAIN V/S. ACIT (50 ITD 1)(ALL )-TM, WHICH BEING A THIRD MEMBER DECISION, OUGHT TO HAVE BEEN FOLLOWED BY THE TRIBUNAL IN ITS ORDER DATED 8.6.2012, AS IT HAS A BINDING EFFECT ON THE T RIBUNALS AS A SPECIAL BENCH DECISION IN DCIT V/S. OMAN INTERNATIONAL BANK SAOG (100 ITD 285) . IN ANY EVENT, IT IS SUBMITTED THAT THE REVENUE DID NOT RAI SE ANY CONTENTION BEFORE THE TRIBUNAL DURING THE APPEAL HEARING EITHER DISPU TING THE APPLICABILITY OF THE CASE-LAW RELIED UPON BY THE ASSESSEE, OR CONTENDING THAT THE LAW LAID DOWN IN THOSE CASE WAS NO LONGER A GOOD LAW. 6. IT IS SUBMITTED THAT THE TRIBUNAL WITHOUT REGA RD TO THE FACTS FOUND ON RECORD, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FURTHER ENQUIRY AND INVESTIGATION, WHICH THE LEARNED COUNSE L FOR THE ASSESSEE CLAIMED TO BE NOT IN ACCORDANCE WITH LAW. IT IS SUBMITTED IN THIS BEHALF THAT THE TRIBUNAL WAS UNDER MISCONCEPTION THAT CERTAIN FACTS /DOCUMENTS WERE NOT PLACED BEFORE THE ASSESSING OFFICER FOR HIS CONSIDE RATION. DISPUTING THIS FINDING OF THE TRIBUNAL, IT IS SUBMITTED THAT THE D OCUMENTS REQUIRED BY THE ASSESSING OFFICER WERE FILED BEFORE HIM AND OTHER D OCUMENTS IN THE FORM OF PAPER-BOOK WERE FILED BEFORE THE CIT(A), WHO FORWAR DED THE SAME TO THE ASSESSING OFFICER FOR HIS COMMENTS AND REMAND REPOR TS WERE ALSO CALLED FOR FROM HIM. PURSUANT TO THE ABOVE, ASSESSING OFFICER FURNISHED TWO REMAND REPORTS BEFORE THE CIT(A) AND THE ASSESSING OFFICER ALSO MADE PERSONAL REPRESENTATION BEFORE THE CIT(A) IN THE APPEAL HEAR ING PROCEEDINGS, WHICH IS BORNE OUT ON RECORD. WHILE THE ABOVE FACTS ARE FOR MING PART OF THE RECORDS, THE FINDING OF THE TRIBUNAL THAT CERTAIN DOCUMENTS/ FACTS HAVE NOT BEEN PLACED BEFORE THE ASSESSING OFFICER IS NOT CORRECT. 5 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD 7. INVITING OUR ATTENTION TO PARA 11 ON PAGE 12 O F THE ORDER OF THE TRIBUNAL, IT IS SUBMITTED THAT WHILE THE TRIBUNAL H AS SET ASIDE THE ORDER TO CONDUCT FURTHER ENQUIRIES BY THE ASSESSING OFFICER, WHETHER THE THREE COMPANIES INVESTED IN THE SHARES OF THE ASSESSEE RE ALLY EXISTED OR NOT WHEN THEY MADE INVESTMENTS, THOUGH THE TRIBUNAL ITSELF N OTED THE FACTS AVAILABLE ON RECORD AS TO THE IDENTITY OF THE SHARE APPLICANT S IN PARA 7 OF THE ORDER OF THE TRIBUNAL WHICH IS SELF EXPLANATORY. 8. TAKING US THROUGH PARA 6 ON 4 OF THE ORDER OF THE TRIBUNAL, WHEREIN THE TRIBUNAL HAS TAKEN NOTE OF THE OPINION EXPRESSED BY THE ASSESSING OFFICER AFTER EXAMINING THE INCOME-TAX RE TURNS OF THE INVESTOR COMPANIES THAT THESE COMPANIES MAY NOT HAVE INVESTE D IN SHARE APPLICATION MONEY IN THE ASSESSEE-COMPANY, IT IS SUBMITTED THAT THE ASSESSING OFFICER HAS MERELY EXPRESSED HIS DOUBT AND OPINION AND DID NOT HOLD THAT THE SAID COMPANIES HAVE NOT INVESTED THE AMOUNT IN SHARES. F URTHER, AS TO THE OBSERVATION ABOUT BALANCE SHEETS, IT IS PLEADED THA T THE BALANCE SHEETS ONLY FORMED PART OF THE ICNOEMT-0AXS RETURNS FILED BY TH E INVESTOR COMPANIES. 9. IT IS SUBMITTED THAT THE VARIOUS DISCREPANCIES POINTED OUT IN THE PRESENT APPLICATION CLEARLY ESTABLISHES THE MISTAKE S APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, WHICH IS NOT CORRECT IN SETTING ASIDE THE ASSESSMENT ORDER ONCE AGAIN FOR FURTHER INVESTIGATION AND ENQU IRIES TO FIND OUT WHETHER THE SHARE APPLICANT COMPANIES HAVE IN FACT MADE IN VESTMENT IN THE SHARES OF THE ASSESSEE-COMPANY. HE THEREFORE, PLEADED THAT T HE ORDER OF THIS TRIBUNAL DATED 8.6.2012, MAY BE RECTIFIED/RECALLED. 6 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD 11. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON T HE OTHER HAND, STOUTLY OPPOSING THE PLEAS OF THE ASSESSEE IN THE P RESENT APPLICATION SUBMITTED THAT THE ASSESSEE IS MERELY DISPUTING THE CONCLUSIONS REACHED BY THE TRIBUNAL, AND HAS NOT BROUGHT OUT ANY SPECIFIC MISTAKE APPARENT FROM RECORD, WHICH WARRANTS RECTIFICATION IN TERMS OF S. 254(2) OF THE INCOME-TAX ACT. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE ORDER OF THIS TRIBUNAL DATED 8.6.2012, IN THE LIGHT OF TH E DETAILED AVERMENTS MADE ON VARIOUS ASPECTS BY THE ASSESSEE IN THE PRESENT A PPLICATION. WE FIND THAT THE TRIBUNAL AFTER ELABORATE CONSIDERATION OF THE A RGUMENTS OF THE PARTIES BEFORE IT, IN PARA 11 OF ITS ORDER ON PAGES 9 AND 1 0 HAS TAKEN NOTE OF CERTAIN FACTUAL ASPECTS, INCLUDING DISCREPANCIES IN THE AFF IDAVIT OF SHRI VIRENDRA AGARWAL, DIRECTOR OF ONE OF THE SHARE APPLICANT COM PANIES, VIZ. MARUDHAR VINIMAY PVT. LTD.. AND IN THE CONFIRMATION LETTER A ND AFFIDAVITS OF TWO OTHER SHARE APPLICANT COMPANIES, WHICH HAVE NOT BEEN DEAL T WITH BY THE CIT(A) WHILE GRANTING RELIEF TO THE ASSESSEE. THE TRIBUNA L TOWARDS THE END OF PARA 11 OF ITS ORDER DATED 8.6.2012, ON PAGES 11 AND 12 THEREOF CONCLUDED AS FOLLOWS- 11. ..THE CIT(A) IN HIS ORDER HAS NOT AT ALL DEAL T WITH THESE ISSUES AND IN A CRYPTIC ORDER HAS SIMPLY OBSERVED THAT SIN CE PAN NUMBERS AND IDENTITY OF SHARE APPLICANTS HAVE BEEN FURNISHE D, NO ADDITION CAN BE MADE. AS HAS BEEN HELD BY HONBLE DELHI HIGH C OURT IN THE CASE OF CIT VS. OASIS HOSPITALITIES PVT. LTD. AND OTHERS (S UPRA), THE ASSESSEE HAS TO ESTABLISH THE IDENTITY OF THE INVESTORS, THE IR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. IN THE PRESENT CASE, THERE IS DOUBT REGARDING THE IDENTITY OF THE SHARE APPLICANT S AND NO MATERIAL HAS BEEN BROUGHT ON RECORD LIKE BALANCE-SHEET OR BA NK STATEMENTS OF THE SHARE APPLICANTS TO SHOW THAT THEY HAD CAPABILI TY TO MAKE INVESTMENTS IN THE SHARES. IN THE AFORESAID FACTUA L BACKGROUND, SINCE THE REVENUE AUTHORITIES HAVE NOT PROPERLY EXAMINED THESE ASPECTS, WE THINK IT PROPER TO RESTORE THE MATTER BACK TO THE A O WHO SHALL CONDUCT SUCH ENQUIRY TO FIND OUT AS TO WHETHER THE THREE CO MPANIES WHICH 7 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD HAVE INVESTED IN SHARES OF THE ASSESSEE REALLY EXIS TED OR NOT. IF ON ENQUIRY, IT IS FOUND THAT THE COMPANIES DID EXIST W HEN THEY MADE INVESTMENT AND INVESTMENT MADE BY THEM ARE GENUINE, THEN NO ADDITION CAN BE MADE U/S. 68 OF THE ACT. THE AO MA Y EXERCISE HIS POWER TO MAKE ENQUIRIES WITH THE CONCERNED REGISTRA R OF COMPANIES TO FIND OUT THE REAL STATUS OF SHARE APPLICANTS AND AF TER GATHERING ALL INFORMATION, THE AO SHALL COMPLETE THE ASSESSMENT A FTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 13. IT IS EVIDENT FROM THE ABOVE EXTRACT FROM THE ORDER OF THE TRIBUNAL DATED 8.6.2012, THAT THE TRIBUNAL, HAVING FOUND THA T THE ORDER PASSED BY THE CIT(A) GRANTING RELIEF TO THE ASSESSEE, IMPUGNED BE FORE IT, TO BE CRYPTIC AND HAVING NOT DEALT WITH THE VARIOUS ISSUES, MORE IMPO RTANTLY WHETHER THE SHARE APPLICANTS ARE HAVING THEIR INDEPENDENT EXISTENCE OR ARE MERE NAME-LENDERS, BESIDES THE THREE INGREDIENTS THAT HAVE TO BE FULFI LLED TO ESTABLISH A CREDIT ENTRY, VIZ. IDENTITY OF INVESTORS; THEIR CREDIT-WOR THINESS AND THE GENUINENESS OF THE TRANSACTIONS, HAS SET ASIDE THE ORDER OF THE CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RED ECIDING THE ISSUE AFTER MAKING APPROPRIATE ENQUIRIES, INCLUDING WITH THE REGISTRAR OF COMPANIES. THIS DECISION OF THE TRIBUNAL TO RESTORE THE MATTER TO T HE FILE OF THE ASSESSING OFFICER, IS BASED ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, INCLUDING THE CRYPTIC NATURE OF THE ORDER PAS SED BY THE CIT(A). THE TRIBUNAL, BEING THE ULTIMATE FACT FINDING AUTHORITY , IT IS THE BOUNDEN DUTY OF THE TRIBUNAL TO ENSURE THAT ALL FACTS NECESSARY FOR COMING TO A JUST AND PROPER CONCLUSION HAVE BEEN BROUGHT ON RECORD. THE CONTE NTION OF THE ASSESSEE THAT THE TRIBUNAL CANNOT DIRECT FOR FURTHER ENQUIRY AND INVESTIGATION WHICH HAS NOT BEEN DONE BY THE ASSESSING OFFICER, IN OUR VIEW , IS NOT THE CORRECT PROPOSITION OF LAW. HENCE, THE SAME CANNOT BE ACCE PTED. THE TRIBUNAL IS EMPOWERED UNDER THE STATUTE AND IS FULLY WITHIN ITS JURISDICTION TO DIRECT THE ASSESSING OFFICER TO MAKE ADEQUATE ENQUIRY AND INVE STIGATION, IF ON APPRECIATION OF FACTS ON RECORD, THE TRIBUNAL FEELS THAT THERE ARE MISSING LINKS 8 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD OR INCONSISTENCIES IN THE MATERIAL BROUGHT ON RECOR D, OR IF THERE IS LACK OF PROPER OR COMPLETE ENQUIRY OR IF FURTHER ENQUIRY IS REQUIRED IN THE FACTS AND CIRCUMSTANCES OF A PARTICULAR CASE. IN THE FACTS OF THE PRESENT CASE, ONE OF THE ALLEGATIONS OF THE REVENUE IS WITH REGARD TO TH E VERY EXISTENCE OF THE SHARE APPLICANT-COMPANIES, AND IT IS IN THE CONTEXT OF THE INFERENCE DRAWN BY THE ASSESSING OFFICER BASED ON SUCH ALLEGATION THAT THE TRIBUNAL HAS DIRECTED FOR ENQUIRY BY THE ASSESSING OFFICER WITH THE REGIS TRAR OF THE COMPANIES AS TO THE EXISTENCE OF SUCH COMPANIES. BY THE VARIOUS EL ABORATE AVERMENTS MADE BY THE ASSESSEE IN THE PRESENT APPLICATION, AND BY THE STRENUOUS ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE COURSE OF HEARING IN THESE, ALL THAT THE APPLICANT-ASSESSEE CONTENDS IS THAT THE TRIBUNAL SHOULD HAVE SUSTAINED THE ORDER OF THE CIT(A) GRANTING REL IEF TO THE ASSESSEE, AND OUGHT NOT TO HAVE SET ASIDE THE MATTER TO THE ASSES SING OFFICER FOR FRESH CONSIDERATION. THUS, THE ASSESSEE MERELY DISPUTES T HE FINDINGS GIVEN AND CONCLUSIONS DRAWN BY THE TRIBUNAL, AND SEEKS MEREL Y A REVIEW OF OUR ORDER DATED 8.6.2012, WHICH IS NOT PERMISSIBLE IN THESE P ROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF MISTAKES APPARENT FROM RECORD. 14. THROUGH THE PRESENT ELABORATE APPLICATION UNDE R S.254(2) OF THE ACT, WHICH RUNS INTO NINE PAGES, ASSESSEE MERELY SE EKS TO REARGUE ITS CASE REITERATING THE CONTENTIONS URGED DURING THE APPEAL HEARING, DISCUSSING THE CASE-LAW RELIED UPON IN SUPPORT OF THE CASE OF THE ASSESSEE, AND ALLEGING NON- CONSIDERATION OF THE SAID CASE-LAW BY THE TRIBUNAL WHILE PASSING ITS ORDER DATED 8.6.2012. A CAREFUL READING OF THE ORDER OF T HE TRIBUNAL DATED 8.6.2012 IN ITS TOTALITY REVEALS CONSIDERATION OF ALL THE PL EAS STATED TO HAVE BEEN MADE IN THE PRESENT APPLICATION AND ALSO THE CASE-LAW RE LIED UPON BY THE LEARNED 9 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD COUNSEL FOR THE ASSESSEE, BY THE TRIBUNAL. IT IS N EITHER EXPECTED NOR POSSIBLE TO PUT ALL THE CONTENTIONS OF THE PARTIES AND ALL T HE CASE-LAWS CITED BY THE PARTIES IN THE OPERATIVE PORTION OF THE ORDER ITSEL F, DULY WEIGHING EACH OF THE CONTENTIONS AND DULY DISTINGUISHING EACH OF THE DE CISIONS RELIED UPON BY THE PARTY WHO IS LIKELY TO BE AGGRIEVED BY THE ORDER OF AN APPELLATE AUTHORITY, AND IT IS SUFFICE IF THE ORDER IN TOTALITY REFLECTS DUE CONSIDERATION OF THE ENTIRETY OF THE MATERIAL, CONTENTIONS AND CASE-LAW, RELEVANT FOR THE DETERMINATION OF THE ISSUE IN APPEAL. EVEN OTHERWISE, WITH THE FIN DING OF THE TRIBUNAL THAT ORDER OF THE CIT(A) TO BE CRYPTIC AND HAVING NOT DE ALT WITH CERTAIN RELEVANT ISSUES, AND THE DIRECTIONS GIVEN FOR APPROPRIATE EN QUIRIES/INVESTIGATIONS BY THE ASSESSING OFFICER, CONSIDERATION OF THE CASE-LA W RELIED UPON BY THE PARTIES BEFORE IT IN EXHAUSTIVE DETAIL, BECOMES A REDUNDANT AND ACADEMIC EXERCISE. 15. IT IS WORTHWHILE NO NOTE AT THIS STAGE THAT THE PROVISIONS OF S.254(2) OF THE INCOME-TAX ACT, 1961 EMPOWERS THE T RIBUNAL TO RECTIFY A MISTAKE. HOWEVER, THE SCOPE AND AMBIT OF THE AFORE SAID PROVISION IS VERY LIMITED. THE POWER CONFERRED ON THE TRIBUNAL FOR R ECTIFICATION HAS TO BE EXERCISED IN TERMS OF THE PROVISION. THE RECTIFICA TION, AS ENVISAGED IN THE AFORESAID PROVISION, IS CONFINED TO MISTAKES WHICH ARE APPARENT FROM RECORD AND ARE PATENT AND OBVIOUS, AND ARE NOT SUCH WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS AND DEBATE OR BY A PROCESS OF INVESTIGATION AND RESEARCH. THE SCOPE OF S.254(2) CANNOT BE ENLARGED SO AS TO EMPOWER THE TRIBUNAL TO REVIEW ITS OWN ORDER. IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW AND ONE OF THE ALTERNATIVES IS ADOPTED IN ITS PREVI OUS ORDER, IT CANNOT BE HELD THAT THERE IS A MISTAKE APPARENT FROM RECORD ON ACC OUNT OF NON-ADOPTION OF THE OTHER POSSIBLE VIEW. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS 10 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD CLEAR AND SELF-EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER, IN AN ATTEMPT TO RE-WRITE THE ORDER. THE TRIBUNAL, BEING A CREATURE OF THE STATUTE, HAS TO ACT WITHIN THE LIMITS LAID DOWN BY THE STATU TE. IT HAS NO INHERENT POWER OF REVIEW. HENCE, SUCH POWER CANNOT BE ASSUM ED IN THE GUISE OF RECTIFICATION ENVISAGED UNDER S.254(2) OF THE ACT, FOR RECALLING ITS OWN ORDER AND HEARING IT AFRESH. WE MAY DRAW SUPPORT IN THIS BEHALF BY THE RATIO LAID DOWN BY THE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT V/S. VED PRAKASH (209 ITR 448)(AP), WHEREIN IT HAS BEEN HELD AS FOLL OWS- 'IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND O NE OF THE ALTERNATIVES IS ACCEPTED BY THE TRIBUNAL, IT CANNOT BE HELD THAT TH E MISTAKE IS APPARENT FROM THE RECORD, UNLESS THERE ARE M ANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIO US ORDER IN AN ATTEMPT TO REWRITE THE ORDER. A CHANGE OF OPINION BY THE TRIBU NAL CONSISTING OF THE SAME MEMBERS SHALL NOT JUSTIFY RECTIFICATION, NOR CAN FR ESH THINKING BROUGHT IN BY NEW MEMBERS OF THE TRIBUNAL JUSTIFY REWRITING OF TH E ORDER UNDER THE GUISE OF RECTIFICATION. THE ONLY FACT THAT HAD THE SECOND SE T OF MEMBERS HEARD THE APPEAL, THEY WOULD HAVE DECIDED IN FAVOUR OF THE AS SESSEE IS NOT A REASON FOR THEM TO RECALL AN ORDER ALLEGEDLY FOR THE PURPOSE O F RECTIFICATION OF A MISTAKE. SIMILARLY, IN THE CASE OF CIT VS. ITAT & ANR. 206 I TR 126 THE ANDHRA PRADESH HIGH COURT 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. EVE N OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWER S OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATI ON WHICH IS SPECIFICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EX ERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMP TION THAT THE TRIBUNAL HAS GOT AN INHERENT POWER 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. U NLESS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PA TENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLIS HED ONLY BY LONG- DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATION AN D RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. IF TWO VIEW S ARE POSSIBLE ON A POINT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPT ED IN ITS PREVIOUS 11 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARE NT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS OR DER IN AN ATTEMPT TO REWRITE THE ORDER.' AT THE COST OF REPETITION, WE WOULD LIKE TO REITERA TE THAT ON GOING THROUGH THE ORDER PASSED BY THE TRIBUNAL, WE ARE CONVINCED THAT THE TRIBUNAL PASSED THE ORDER, AFTER MARSHALLING ALL THE FACTS CONSIDERING THE SUBMISSIONS MADE BEFORE IT AND APPLYING ITS MIND TO THE DECISIONS CITED BEF ORE IT. WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL OF THE NATURE AS ENVISAGED UNDER S.254(2) OF THE ACT. PERMITTING THE ASSESSEE TO RA ISE THE SAME ISSUES OVER AGAIN IN THE GUISE OF RECTIFICATION WILL AMOUNT TO RECALLING THE APPEAL ORDER IN ITS ENTIRETY AND RE-HEARING IT AFRESH, WHICH IS NOT WITHIN THE SCOPE AND AMBIT OF S.254(2) OF THE ACT. 16. IN THE LIGHT OF THE FOREGOING DISCUSSION, WE F IND NO MERIT IN THE PRESENT APPLICATION OF THE ASSESSEE, WHICH IS ACCOR DINGLY REJECTED. 17. IN THE RESULT, MISCELLANEOUS APPLICATION OF TH E ASSESSEE IS REJECTED. ORDER PRONOUNCED IN THE COURT ON 7.12.2012 SD/- SD /- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED/- 7 TH DECEMBER, 2012 COPY FORWARDED TO: 1. M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., 5 - 5 - 105/105/6, 1 FLOOR, MEHER COMPLEX, RANIGUNJ, HYDERABAD 12 M.A.NO.171/HYD/2012 (IN ITA NO.1168/HYD/2009) M/S. SHEETAL SHIPPING & METAL PROCESSORS LTD., HYDERABAD 2. 3. 4. DY. COMMISSIONER OF INCOME-TAX CIRCLE 3(1), HYDERAB AD COMMISSIONER OF INCOME-TAX(APPEALS) TIRUPATI COMMISSIONER OF INCOME-TAX III, HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.