Al Habeeb Chrairtable Trust, Hyderabad V. ADIT (E)-1, Hyderabad

MA 181/HYD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9823 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 13-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIDISHA KALRA
• Assessee Lawyers: I RAMA RAO
• Keywords: Depreciation; Charitable institution; Opportunity of being heard; Principle of natural justice; Difference of opinion; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIA L MEMBER M.A.NO.181/HYD/2012 ( ITA NO.2069/HYD/2011) : ASSTT. YEAR 2004-05 AL-HABEEB CHARITABLE TRUST, HYDERABAD. ( PAN - AAATA 8043 K) V/S. ASSTT. DIRECTOR OF INCOME-TAX (EXEMPTION) 1, HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI I.RAMA RAO RESPONDENT BY : SMT. VIDISHA KALRA DR DATE OF HEARING 23.11.2012 DATE OF PRONOUNCEMENT 11.1.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME-TA X ACT, 1961, THE APPLICANT-ASSESSEE HAS PRAYED FOR RECTIFI CATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 30.3.2012 ON THE APPEA L OF THE REVENUE, BEING ITA NO.2069/HYD/2011 AND THE CROSS-OBJECTION OF THE ASSESSEE THEREIN, BEING C.O. NO.81/HYD/1012, FOR THE ASSESSMENT YEAR 2004-05, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM THE RECO RD HAVE CREPT INTO THE SAME. 2. REITERATING THE DETAILED AVERMENTS MADE IN THE PRESENT APPLICATION, THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI I.RAMA RAO, SUBMITTED THAT THE TRIBUNAL, WHILE PASSING ITS ORDE R DATED 30.3.2012 HAS EXCEEDED ITS JURISDICTION AND HAS GONE BEYOND THE S UBJECT MATTER AND SCOPE OF THE APPEAL FILED BY THE REVENUE. IT IS SU BMITTED THAT IN THE GROUNDS OF THE REVENUE IN ITS APPEAL, THERE WAS NO GROUND AS TO THE ISSUE OF RECEIPT OF CAPITATION FEES BY THE ASSESSEE. HOW EVER, THE TRIBUNAL VIDE PARA 4 OF ITS ORDER DATED 30.3.2012, DISCUSSED AT L ENGTH THE ISSUE OR THE CAPITATION FEE AND FINALLY SET ASIDE THE ORDER OF T HE CIT(A) AND RESTORED THE M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 2 MATTER TO THE FILE OF THE ASSESSING OFFICER WITH CE RTAIN DIRECTIONS. HE SUBMITTED THAT THE ISSUE OF RECEIPT OR OTHERWISE OF THE CAPITATION FEE BY THE ASSESSEE WAS NEITHER A SUBJECT MATTER OF DISPUTE BE FORE THE CIT(A) OR TRIBUNAL, NOR IT IS THE CASE OF THE ASSESSING OFFIC ER THAT THE ASSESSEE RECEIVED CAPITATION FEE. 3. CONTESTING THE LEGALITY OF THE ACTION OF THE T RIBUNAL IN ADJUDICATING ON AN ISSUE NOT BEFORE IT IN THE GROUN DS OF APPEAL, IT IS PLEADED THAT DECISION IN A CASE CANNOT BE BASED ON GROUNDS OUTSIDE THE PLEADINGS OF THE PARTIES AND THE PLEADINGS AND ISSU ES ARE TO ASCERTAIN THE REAL DISPUTE BETWEEN THE PARTIES TO NARROW THE AREA OF CONFLICT AND TO SEE JUST WHERE THE TWO SIDES DIFFER. IN SUPPORT OF THI S CONTENTION, RELIANCE IS PLACED ON THE FOLLOWING DECISIONS- (A) SRI MAHANTI GOVIND RAO V/S. SITA RAM KESHO(1898)325 IND. APP,. 195); (B) MS.TROJAN & CO. V/S. R.M.N.N.NAGAPPA CHETTIAR, AIR 1953 SC 235; (C) ISHWAR DUTT V/S. LAND ACQUISITION COLLECTOR & A NR., AIR 2005 SC 3165; (D) STATE OF MAHARASHTRA V/S. HINDUSTAN CONSTRUCTION CO MPANY LTD. (2010)AXX 518) IT IS FURTHER SUBMITTED THAT THE TRIBUNAL CANNOT AD JUDICATE OR GIVE A FINDING ON A QUESTION WHICH IS NOT IN DISPUTE AND WHICH DOE S NOT FORM PART OF SUBJECT MATTER OF APPEAL AS HELD BY THE HONBLE SUP REME COURT IN THE CASE OF PERIANNAN V.S. CIT(39 ITR 159); RAMASWAMY V/S. C IT(40 ITR 377); PAKHRAJ V/S. CIT(49 ITR 293); GREAVES V/S. CIT(49 I TR 107); INDIRA V/S. CIT(30 ITR 320) AFFIRMED IN CIT V/S. INDIRA (39 ITR 546(SC); ORISSA WEAVERS V/S. CIT(187 ITR 646); CIT V/S. VEERASWAMI (49 ITR 13); AND ITO V/S. RAJGHORIA(119 ITR 872). 4. PLACING RELIANCE ON RULE 11 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963, IT IS SUBMITTED THAT THE APP ELLANT SHALL NOT, EXCEPT M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 3 BY LEAVE OF THE TRIBUNAL, URGE OR BE HEARD IN SUPPO RT OF ANY GROUND NOT SET FORTH IN THE MEMORANDUM OF APPEAL. THOUGH THE TRIB UNAL, IN DECIDING THE APPEAL, SHALL NOT BE CONFINED TO THE GROUNDS SET FO RTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY LEAVE OF THE TRIBUNAL UNDER T HIS RULE, IT IS SUBMITTED, THE TRIBUNAL SHALL NOT REST ITS DECISION ON ANY OTH ER GROUND UNLESS THE PARTY, WHO MAY BE AFFECTED THEREBY, HAS HAD SUFFICI ENT OPPORTUNITY OF BEING HEARD ON THAT GROUND. THUS, THE FINDING OF TH E TRIBUNAL VIDE PARA 4 OF THE IMPUGNED ORDER IS IN VIOLATION OF THE RULE 1 1 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES 1963, AND THEREFORE, THE ORDER OF THE TRIBUNAL DATED 30.3.2012 REQUIRES TO BE RECALLED ON THIS COU NT. 5. TAKING US THROUGH PARAS 5 AND 6 OF THE ORDER OF THE TRIBUNAL DATED 30.3.2012, IT IS POINTED OUT THAT THE TRIBUNA L DISCUSSED ABOUT THE ALLOWABILITY OF DEPRECIATION CLAIM ON THE FIXED ASS ETS, AND AFTER REFERRING TO THE DECISIONS OF THE JAIPUR BENCH OF THE TRIBUNAL I N THE CASE OF JAIPUR STOCK EXCHANGE (108 TTJ)(JP); MAHILA SIDH NIRMAN YOJNA V/ S. IAC(50 ITD 472) AND THE DECISION OF COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF DY. CIT V/S. ADI SANKARA TRUST (46 SOT 230), ULTIMATELY SET ASIDE THE ORDER OF THE CIT(A) ON THIS ASPECT AND RESTORED THE MATTER TO TH E FILE OF THE ASSESSING OFFICER WITH CERTAIN DIRECTIONS FOR REDECIDING THE ISSUE IN ACCORDANCE THEREWITH. 6. IT IS FURTHER ARGUED THAT EVEN ON THE ISSUE OF DEPR ECIATION, THE TRIBUNAL HAS GONE BEYOND THE GROUNDS RAISED BY THE REVENUE, AND IN ANY EVENT, CONSIDERING THE CONTRADICTORY DECISIONS OF T HE CO-ORDINATE BENCHES OF THE TRIBUNAL ON THAT ISSUE. THE TRIBUNAL SHOULD HAVE REFERRED THE MATTER TO THE HONBLE PRESIDENT FOR CONSTITUTION OF A SPEC IAL BENCH. RELIANCE IN THIS BEHALF HAS BEEN PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF UNION OF INDIA V/S. PARAS LAMINATES PVT. LTD.(186 ITR 722). ALSO PLACING RELIANCE ON THE DECISIONS OF VARIOUS H IGH COURTS, WHICH ACCORDINGLY COVER THE ISSUE IN DISPUTE AGAINST THE DEPARTMENT, IT IS SUBMITTED THAT THE ORDER OF THE TRIBUNAL SUFFERS FR OM THE VICE OF PATENT M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 4 AND APPARENT MISTAKE ON THE FACE OF THE RECORD, AND HENCE, IN ALL FAIRNESS THE ORDER OF THE TRIBUNAL DATED 30.3.2012 IN ITA NO .2069/HYD/2011 IS LIABLE TO BE RECALLED. 7. WHILE DEALING WITH THE CROSS-OBJECTION OF THE ASSESSEE, WHICH IS ON THE ISSUE OF LEGALITY AND VALIDITY OF THE REO PENING OF ASSESSMENT, LEARNED COUNSEL SUBMITTED, THE TRIBUNAL DISMISSED T HE SAME ON THE GROUND THAT NO SERIOUS ARGUMENTS WERE ADVANCED BY THE LEAR NED COUNSEL FOR THE ASSESSEE. CLARIFYING THE POSITION IN THIS BEHALF, IT IS SUBMITTED THAT THE ADVOCATE WAS INSTRUCTED ONLY TO SEEK ADJOURNMENT OF THE CASE, AND THAT BEING THE CASE, HE HAD NO INSTRUCTIONS TO ARGUE THE CASE, AND IT IS FOR THAT REASON THAT HE DID NOT ARGUE THE CASE. IN ANY EVEN T, IT IS SUBMITTED THAT THE TRIBUNAL IN ALL FAIRNESS, SHOULD HAVE DEALT WIT H THE GROUNDS TAKEN IN THE CROSS-OBJECTIONS FIRST, AS THE SAME GO TO THE ROOT OF THE MATTER, SINCE THOSE GROUNDS QUESTION THE VERY LEGALITY AND VALIDI TY OF THE RE-ASSESSMENT PROCEEDINGS. WITH REGARD TO THE OTHER GROUND OF CRO SS-CROSS OBJECTION, WHICH DISPUTED THE CORRECTNESS OF THE DIRECTION OF THE CIT(A) TO THE ASSESSING OFFICER TO VERIFY THE RECEIPT OF CAPITATI ON FEE, IF ANY, AND SUBMITTED THAT THE SAID DIRECTION OF THE CIT(A) WAS GIVEN ENHANCING THE SCOPE OF ADJUDICATION OF THE APPEAL BY THE CIT(A), AND FURTHER, THE SAME HAVING BEEN NOT DONE AFTER GIVING REASONABLE OPPORT UNITY OF HEARING TO THE ASSESSEE TO PUT FORTH ITS CASE, IT IS IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. IT IS FURTHER SUBMITTED IN THIS BEHALF PL ACING RELIANCE ON THE DECISION IN THE CASE OF ABDUL SATTAR V/S. CIT (174 ITR 368) THAT DURING THE RE-ASSESSMENT PROCEEDINGS, THE CIT(A) CAN DO WHAT T HE ASSESSING OFFICER HIMSELF COULD NOT HAVE DONE. PLACING FURTHER RELIA NCE ON THE DECISIONS OF THE LAHORE HIGH COURT IN THE CASE OF CIT V/S. NAWAB SHAH NAWAZ KHAN (6 ITR 370) AND CIT V/S. KHEMCHAND RAMDAS (6 ITR 414) , IT IS SUBMITTED THAT THE CIT(A) CANNOT DIRECT THE ASSESSING OFFICER AFTER THE TIME LIMIT FOR MAKING THE ASSESSMENT HAS EXPIRED, TO MAKE A FRESH ASSESSMENT IN RESPECT OF FRESH ITEM OF INCOME, WHICH WAS NOT COVE RED BY THE ORIGINAL PROCEEDINGS. M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 5 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE CONTRARY, OPPOSING THE ABOVE CONTENTIONS OF THE ASSESSEE, STR ONGLY SUPPORTING THE ORDER OF THE TRIBUNAL DATED 30.3.2012 SUBMITTED THA T THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, AND ALL THAT THE ASSESSEE IS SEEKING THROUGH ITS ELABORATE ARGUMENTS, IS ONLY A REVIEW OF THE ORDER OF THE TRIBUNAL DATED 30.3.2012, BY RE-ARGUING ITS CAS E. SINCE SUCH A REVIEW IS NOT POSSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, IT IS SUBMITTED THAT THE PRESENT APPLICATION OF THE ASSES SEE IS LIABLE TO BE REJECTED. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE ORDER OF THIS TRIBUNAL DATED 30.3.2012, IN THE LIGH T OF THE DETAILED AVERMENTS MADE ON VARIOUS ASPECTS BY THE ASSESSEE I N THE PRESENT APPLICATION, AND THE STRENUOUS ARGUMENTS ADVANCED B Y THE LEARNED COUNSEL FOR THE ASSESSEE IN SUPPORT THEREOF. WE HAVE ALSO CONSIDERED THE CASE-LAW RELIED UPON BY THE ASSESSEE IN SUPPORT OF THE PRESE NT APPLICATION. THE MAIN PLANK OF THE ARGUMENT OF THE ASSESSEE IN THE P RESENT APPLICATION IS THAT THE TRIBUNAL HAS TRAVELLED BEYOND THE SCOPE OF ITS ADJUDICATION UNDER THE STATUTE, AND HAS DEALT WITH THE ISSUES WHICH WE RE NOT COVERED BY THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL AND HEN CE WERE NOT THE SUBJECT MATTER OF APPEAL. SUCH ISSUES WHICH ACCORD ING TO THE ASSESSEE ARE NOT COVERED BY THE GROUNDS OF APPEAL ARE WITH REGAR D TO RECEIPT OR OTHERWISE OF THE CAPITATION FEE BY THE ASSESSEE; AN D ALLOWABILITY OF DEPRECIATION ON FIXED ASSETS. ON CAREFUL CONSIDERA TION OF THE MATTER, IN THE LIGHT OF THE GROUNDS TAKEN BY THE REVENUE IN ITS AP PEAL, WE FIND NO MERIT IN THE CONTENTIONS OF THE ASSESSEE BASED ON THE LIMITA TIONS WITH REGARD TO SCOPE OF ADJUDICATION BY THE TRIBUNAL. IN AS MUCH AS THE GROUNDS OF THE REVENUE DEAL WITH THE ASSESSEES CLAIM FOR EXEMPTIO N OF ITS INCOME UNDER S.10(23C)/S.11 OF THE INCOME-TAX ACT, IT IS THE ENT IRE ASSESSMENT AS SUCH, THAT BECOMES THE SUBJECT MATTER OF APPEAL BEF ORE THE TRIBUNAL, AND WHILE DECIDING SUCH AN ISSUE, IT IS THE BOUNDEN DUT Y OF THE TRIBUNAL TO GET M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 6 ALL THE RELEVANT FACTORS VERIFIED BY THE LOWER AUTH ORITIES, BEFORE THE EXEMPTION FROM TAX CLAIMED BY THE ASSESSEE IS ALLOW ED. WHILE DISCHARGING THE ONEROUS DUTY OF ADJUDICATION ON AN APPEAL, THE POWER OF THE TRIBUNAL IS NOT FETTERED BY THE PRESENCE OR ABSENCE OF THE SPEC IFIC WORDS LIKE CAPITATION FEE, AND IT CAN CONSIDER AND GIVE APPR OPRIATE DIRECTIONS IN RELATION TO ANY ASPECT, THAT HAS A BEARING ON THE D ETERMINATION OF THE MAIN ISSUE IN DISPUTE, WHICH IN THE INSTANT CASE IS ALL INCLUSIVE CLAIM OF THE ASSESSEE FOR EXEMPTION OF ITS INCOME FROM TAX. ASS ESSEES ENTITLEMENT TO EXEMPTION UNDER S.11 OF THE ACT HAS TO BE CONSIDERE D KEEPING IN VIEW THE ISSUE OF COLLECTION OF CAPITATION FEE, AS THE HONB LE SUPREME COURT AS WELL AS THIS TRIBUNAL, IN CLEAR TERMS HAVE HELD THAT CHA RGING OF CAPITATION FEE DISENTITLES AN INSTITUTION FROM AVAILING EXEMPTIO N UNDER S.11 OF THE ACT. AS SUCH, THE ISSUE OF COLLECTION OF CAPITATION FEE BY THE ASSESSEE IS INTRINSICALLY CONNECTED WITH THE ISSUE OF CLAIM FOR EXEMPTION FROM TAX UNDER S.11 OF THE ACT, AND CONSEQUENTLY THE ISSUE O F EXEMPTION CANNOT BE VIEWED IN ISOLATION OR DE HORS THE ISSUE OF COLLECT ION OF CAPITATION FEE. WHEN THE ASSESSMENT AS A WHOLE BECOMES THE SUBJECT MATTER OF THE REVENUES APPEAL, IT IS OBVIOUS THAT DISCUSSION ON THE ISSUE OF DEPRECIATION ON FIXED ASSETS ALSO FALLS WITHIN THE SCOPE OF ADJU DICATION BY THE TRIBUNAL. THAT PART, GROUNDS NO.9 & 10 OF REVENUE ARE SPECIFI CALLY ON THIS ISSUE. 10. AS FOR THE FINDINGS OF THE TRIBUNAL ON THE GRO UNDS RAISED IN THE CROSS-OBJECTIONS, THERE IS NO DISPUTE WITH REGARD T O THE FACT NOTED BY THE TRIBUNAL THAT THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT ADVANCE ANY SERIOUS ARGUMENTS ON THE ISSUES RAISED IN THE CROSS -OBJECTIONS. BY FINDING FAULT WITH THE APPROACH OF THE TRIBUNAL, IN NOT DEC IDING THE ISSUE OF LEGALITY AND VALIDITY OF RE-OPENING OF THE ASSESSME NT RAISED IN THE CROSS- OBJECTION IN THE FIRST PLACE, BEFORE PROCEEDING TO ADJUDICATE ON THE ISSUES RAISED IN THE APPEAL OF THE REVENUE, THE ASSESSEE I N THE PRESENT APPLICATION IS MERELY SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL, BY DISPUTING THE APPROACH AND FINDINGS OF THE TRIBUNAL ON VARIOUS ISSUES. SUCH A REVIEW IS NOT PERMISSIBLE IN THESE PROCEEDIN GS UNDER S.254(2) OF M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 7 THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE REC TIFICATION OF MISTAKES APPARENT FROM RECORD. 11. THROUGH THE PRESENT ELABORATE APPLICATION UNDE R S.254(2) OF THE ACT, WHICH RUNS INTO SIX PAGES, ASSESSEE MERELY SEEKS TO REARGUE ITS CASE, DISCUSSING THE CASE-LAW RELIED UPON IN SUPPOR T OF THE CASE OF THE ASSESSEE. A CAREFUL READING OF THE ORDER OF THE T RIBUNAL DATED 30.3.2012 IN ITS TOTALITY REVEALS NO MISTAKE APPARENT FROM RE CORD IN THE ORDER OF THE TRIBUNAL DATED 30.3.2012, WARRANTING ANY RECTIFICAT ION/RECALL OF THE SAID ORDER. AS FOR THE CASE-LAW RELIED UPON BY THE LE ARNED COUNSEL FOR THE ASSESSEE, WE FIND THAT THEY ARE MOSTLY ON THE MERIT S OF THE ORDER OF THIS TRIBUNAL, DISPUTING THE CONCLUSIONS ARRIVED AT BY T HE TRIBUNAL, AND THEREBY SEEKING A REVIEW OF THE ORDER BY THE TRIBUNAL, WHIC H, AS NOTED EARLIER, IS NOT PERMISSIBLE IN THESE PROCEEDINGS FOR RECTIFICAT ION UNDER S.254(2) OF THE ACT. 12. 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 ALTERNATI VES IS ADOPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THERE IS A M ISTAKE APPARENT FROM RECORD ON ACCOUNT OF NON-ADOPTION OF THE OTHER POSS IBLE VIEW. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS CLEAR A ND SELF-EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER, IN AN AT TEMPT TO RE-WRITE THE ORDER. THE TRIBUNAL, BEING A CREATURE OF THE STATUT E, HAS TO ACT WITHIN THE M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 8 LIMITS LAID DOWN BY THE STATUTE. IT HAS NO INHEREN T POWER OF REVIEW. HENCE, SUCH POWER CANNOT BE ASSUMED 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 BEH ALF 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 MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS OR DER IN AN ATTEMPT TO REWRITE THE ORDER. A CHANGE OF OPINION BY THE TRIBUNAL CONS ISTING OF THE SAME MEMBERS SHALL NOT JUSTIFY RECTIFICATION, NOR CAN FRESH THIN KING BROUGHT IN BY NEW MEMBERS OF THE TRIBUNAL JUSTIFY REWRITING OF THE ORDER UNDE R THE GUISE OF RECTIFICATION. THE ONLY FACT THAT HAD THE SECOND SET OF MEMBERS HEARD THE APPEAL, THEY WOULD HAVE DECIDED IN FAVOUR OF THE ASSESSEE IS NOT A REASON F OR THEM TO RECALL AN ORDER ALLEGEDLY FOR THE PURPOSE OF RECTIFICATION OF A MIS TAKE. 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 POWERS OF T HE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIF ICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVI SION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GO T AN INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOM ATIC 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 CA NNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD B E ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATI ON AND 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 ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT 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 A ND ASPECTS, RELEVANT TO THE ISSUES ARISING OUT OF THE GROUNDS RAISED BY THE APPELLANT IN THE APPEAL M.A.NO.181/HYD/2012(IN ITA NO.2069/ HYD/2011&CO) AL-HABEEB CHARITABLE TRUST, HYDERABAD. . 9 BEFORE 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. 13. IN THE LIGHT OF THE FOREGOING DISCUSSION, WE F IND NO MERIT IN THE PRESENT APPLICATION OF THE ASSESSEE, WHICH IS ACCOR DINGLY REJECTED. 14. IN THE RESULT, MISCELLANEOUS APPLICATION OF TH E ASSESSEE IS REJECTED. ORDER PRONOUNCED IN THE COURT ON 11.1.2013 SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED/- 11 TH JANUARY, 2013 COPY FORWARDED TO: 1. AL - HABEEB CHARITABLE TRUST, 10 - 4 - 1/A/12/C, MASAB TANK, HYDERABAD 2 . ASST. DIRECTOR OF INCOME - TAX(EXEMPTION) - 1, HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) IV, HYDERABAD 4. COMMISSIONER OF INCOME-TAX III HYDERABAD 5. DEPARTMENTAL REPRESENTATIV E, ITAT, HYDERABAD. B.V.S*