Smt. V. Kumuda, Hyderabad V. DCIT, Cir-16(2), Hyderabad

MA 183/HYD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7506 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 16-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Keywords: Reasonable cause; Revised return
• Section: 54F; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO.183/HYD/11 ASST.YEA R 2006-07 (IN ITA NO.688/H/10 , SMT. V. KUMUDA, HYDERABAD. V- DCI T, CIR-16(2), HYDERABAD (PAN:ABVPV 6872 F) . (APPLICANT) (RESPONDENT) APPLICANT BY : MOHD. AFZAL RESPONDENT BY : S MT. NIVEDITA BISWAS DATE OF HEARING: 16-12-2011 DATE OF PRONOUNCEMENT: 06-01-2012 . O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: BY THIS MISC. APPLICATION, THE ASSESSEE IS S EEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 20 -8-2010. 2. THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT THE ASSESSEE RAISED A GROUND WITH RE GARD TO THE ALLOWABILITY OF DEDUCTION UNDER SECTION 54F WHEREIN THE TRIBUNAL DECIDED THE ISSUE AGAINST THE ASSESSEE. M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 2 3. THE AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE TRIBUNAL INADVERTENTLY NOT CONSIDERED THE DECISION OF THE SAME BENCH IN THE CASE OF ITO VS. R. PREETA DEVI & TWO O THERS. IN THAT CASE ALSO THE ASSESSEE EXPLAINED THAT THE INVE STMENT IN HOUSE PROPERTY WAS OUT OF RENTS RECEIVED FROM SATYA M COMPUTERS,. SECURITY DEPOSITS OF THE TENANTS, AND LOAN TAKEN FROM KARNATAKA BANK BANJARA HILLS, HYDERABAD. THE REFORE, IT IS RESPECTFULLY SUBMITTED THAT THE RATIONALE LAID D OWN BY THE EARLIER DIVISIONAL BENCH DECISION HAS NOT BEEN APPL IED BY THE PRESENT BENCH, THEREFORE, THERE IS A MISTAKE APPARE NT FROM THE RECORD. 4. HE SUBMITTED THAT DURING THE COURSE OF ASSESSME NT PROCEEDINGS, IT WAS BROUGHT TO THE NOTICE OF THE AS SESSING OFFICER THAT THE ASSESSEE INVESTED UP TO 31-3-2006, AN AMOUNT OF RS.1,24,68,800/- AND FURTHER, AN AMOUNT OF RS.25 ,31,200/- WAS INVESTED BEFORE THE DUE DATE OF FILING OF THE R ETURN I.E., BEFORE 30-6-2006, THEREFORE, AN AGGREGATE AMOUNT OF RS.1,50,00,000/- WAS INVESTED BEFORE THE DUE DATE O F FILING OF THE RETURN OF INCOME AND SUBSEQUENTLY, AN AMOUNT OF RS.1,56,98,000/- WAS INVESTED BY OBTAINING A LOAN F ROM STATE BANK OF INDIA. WHILE FILING THE ORIGINAL RETURN AS OBSERVED BY THE ASSESSING OFFICER A CLAIM OF EXEMPTION OF RS.2, 10,16,139/- WAS MADE AND SUBSEQUENTLY A REVISED RETURN WAS FILE D, REDUCING THE CLAIM OF DEDUCTION UNDER SECTION 54F T O RS.1,31,90,045/-, WHICH HAS BEEN ALLOWED BY THE COMMISSIONER, CONSIDERING THE RATIONALE OF THE JUDG MENT OF THE HONBLE A BENCH IN THE CASE OF ITO VS. R. PREETA DE VI AND TWO M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 3 OTHERS. THE PROVISIONS OF SECTION 54(4) OF THE I T ACT ARE NOT ATTRACTED IN RESPECT OF CLAIM OF RS.1,31,90,045/-. 5. IT WAS CONTENDED THAT DURING THE COURSE OF AS SESSMENT PROCEEDING THE ASSESSEE SUBMITTED A COPY OF RECEIPT S AND PAYMENT ACCOUNT AS PER WHICH THE ASSESSEE HAS SUFFI CIENT FUNDS OF HER OWN FOR OTHER FAMILY MEMBERS ONLY. TH E INVESTMENT MADE FROM THE BANK LOAN OF STATE BANK OF INDIA IS RS.1,56,98,000/- AFTER 30-6-2006, THEREFORE, NO CLA IM IS MADE IN RESPECT OF THIS AMOUNT FOR DEDUCTION UNDER SECTI ON 56F OF THE IT ACT. 6. HE SUBMITTED THAT THE HONBLE BENCH HAS APPREC IATED THE RATIONALE OF THE DECISIONS OF HONBLE KERALA HIGH C OURT, IN THE CASE OF K.C. GOPALAN AND OBSERVED THAT THE MONEY HA S NO COLOR; ALL WHICH IS REQUIRED IS COMPLIANCE WITH THE CONDITION OF INVESTMENT WITHIN THE SPECIFIED TIME. IN THE CASE OF ASSESSEE AS SEEN FROM THE RECEIPTS AND PAYMENTS ACCOUNT, THE ASSESSEE MADE THE INVESTMENT IN THE RESIDENTIAL HOUSE, BEFOR E FILING OF THE RETURN OF INCOME UNDER SECTION 139 (1) OF THE I T ACT, THEREFORE, CONSIDERING THE RATIONALE OF THE ABOVE J UDGMENT, THE ASSESSEE SHOULD GET RELIEF UNDER SECTION 54F OF THE ACT. 7. HE SUBMITTED FURTHER THAT IN IDENTICAL CIRCUMS TANCES THE ITAT, MUMBAI G- BENCH IN THE CASE OF MILAN SHARAD R UPAREL VS. ACIT 121 TTJ 0770 HELD THAT THE ASSESSEE IS ELIGIBL E FOR EXEMPTION U/S 54F OF THE I T ACT IN SPITE OF MAJOR PORTION OF PURCHASE CONSIDERATION OF FLATS HAS BEEN FINANCED B Y BANK. M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 4 8. HE RELIED ON THE JUDGMENT IN THE CASE OF CIT V S. BR CONSTRUCTIONS, 202 ITR THE HONBLE AP HIGH COURT OB SERVED AS UNDER:- THE PRINCIPLES APPLICABLE TO COURTS IN INDIA WERE LAID DOWN BY SUBBA RAO J. (AS HE THEN WAS) IN DR. K.C. NAMBIAR V. STATE OF MADRAS, AIR 1953 MADRAS 351, WHICH WERE APPROVED BY A FULL BENCH OF OUR HIGH COURT IN SUBBARAYUDU V. THE STATE, AIR 1955 AP 87 (FB): 1955 II ALT (CRI) 53. THEY ARE AS FOLLOWS (A T PAGE 94 OF AIR 1955 AP):- A SINGLE JUDGE IS BOUND BY A DECISION OF A DIVISION BENCH EXERCISING APPELLATE JURISDICTION IF THERE IS A CONFLICT OF BENCH DECISIONS, HE SHOULD REFER THE CASE TO A BENCH OF TWO JUDGES WHO MAY REFER IT TO A FULL BENCH. A SINGLE JUDGE CANNOT DIFFER FROM A DIVISION BENCH UNLESS A FULL BENCH OF THE SUPREME COURT OVER-RULED THAT THE DECISION SPECIFICALLY OR LAID DOWN A DIFFERENT LAW ON THE SAME POINT. BUT HE CANNOT IGNORE A BENCH DECISION, AS I AM ASKED TO DO ON THE GROUND THAT SOME OBSERVATIONS OF THE SUPREME COURT MADE IN DIFFERENT CONTEXT MIGHT INDICATE A DIFFERENT LINE O F REASONING. A DIVISION BENCH MUST ORDINARILY RESPECT ANO0THER DIVISIONAL BENCH OF CO-ORDINATE JURISDICTION BUT IF IT DIFFERS, THE CASE SHOULD BE M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 5 REFERRED TO A FULL BENCH. THIS PROCEDURE WOULD AVOID UNNECESSARY CONFLICT AND CONFUSION THAT OTHERWISE WOULD PREVAIL. IN THE CASE OF JKT FABRICS (P) LIMITED VS. DCIT 004 SOT 0084 (MUM-TRIB), IT WAS HELD THAT A DECISION, WHICH IS PER INCURIAM, IS NOT A BINDING JUDICIAL PRECEDENT, IT IS ALSO WELL-SETTLED THAT WH EN IT IS NOT OPEN TO A HIGH COURT BENCH TO DIFFER FROM THE DECISION OF A BENCH OF EQUAL STRENGTH, IT CANNOT ALSO BE OPEN TO A BENCH OF THE TRIBUNAL TO DIFFER FROM THE VIEW TAKEN BY A CO-ORDINATE BENCH OF EQUAL STRENGTH. 9. IN VIEW OF THE ABOVE, IT WAS SUBMITTED THAT TH ERE IS AN INADVERTENT OMISSION IN THE ORDER OF THE TRIBUNAL I N NOT TAKING ACCOUNT THE RATIONALE LAID DOWN BY THE EARLIER BENC H AND HENCE IT IS PRAYED TO RECALL THE ORDER OF THE TRIBUNAL AN D DECIDE THE ISSUE BY FOLLOWING THE ORDER OF THE EARLIER BENCH O F THE TRIBUNAL. 10. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE WHILE OPPOSING THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE NOT AGREED WITH THE RECALLING/REVIEWING OF THE TRIBUNAL AND RELIED ON T HE ORDER OF THE TRIBUNAL IN THE INSTANT CASE. M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 6 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE GRIEVANCE OF THE ASSESSEE IN THIS MISC. APPLICA TION IS MIS- CONCEIVED. THE TRIBUNAL CONSIDERED THE ENTIRE FAC TS AND THE CIRCUMSTANCES OF THE CASE AND CAME TO THE CONCLUSIO N THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION UNDER SECTIO N 54F OF THE ACT ON THE REASON THAT THE ASSESSEE HAS NOT UTILIZE D THE SALES CONSIDERATION FOR THE PURCHASE OF HOUSE PROPERTY. THE HOUSE WAS PURCHASED BY THE ASSESSEE PARTLY FROM BANK LOAN AND PARTLY LOANS FROM FAMILY MEMBERS AND OTHERS. THE T RIBUNAL HAD GIVEN A CATEGORICAL FINDING IN ITS ORDER THAT T HE SALE PROCEEDS OF THE SHARES RECEIVED BY THE ASSESSEE WER E UTILIZED FOR A DIFFERENT PURPOSE AND THE ASSESSEE IS LEFT WI TH NO FUNDS ON THIS COUNT. MOREOVER, THE ASSESSEE WAS NOT HAVING ANY OWN FUND TO ACQUIRE A RESIDENTIAL HOUSE AND THE SAME WA S PURCHASED FROM BORROWED FUNDS PARTLY FROM BANK AND PARTLY FROM RELATIVES AND FRIENDS. THE SALE PROCEEDS ARE NOT APPROPRIATED TOWARDS THE PURCHASE OF RESIDENTIAL HO USE AND THEREFORE THE ASSESSEE IS NOT ENTITLED FOR DEDUCTIO N UNDER SECTION 54F OF THE ACT. WE FIND THAT THE DECISION O F THE TRIBUNAL IS IN CONFORMITY WITH THE JUDGMENT RENDERED IN THE CASE OF CIT VS. V.R. DESAI (2011) 197 TAXMAN 52 (KER) WHEREIN IT HELD AS PER HEAD-NOTES OF THE DECISION AS FOLLOWS: THERE IS NO DISPUTE THAT THE TRANSFER OF THE LAND BY THE ASSESSEE TO THE PARTNERSHIP FIRM TOWARDS HIS CAPITA L CONTRIBUTION TO THE FIRM IS A TRANSFER WITHIN THE M EANING OF SECTION 2(4&) WHICH IS SUBJECT TO LONG-TERM CAPITAL GAINS UNDER SECTION 45(3). IN THE RETURN FILED FOR THE ASSESSM ENT YEAR M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 7 1995-96, HE ASSESSEE HAD IN FACT OFFERED TAX ON CAP ITAL GAINS ON THE VERY SAME TRANSACTION OF CONTRIBUTION OF THE ABOVE LAND TOWARDS HIS CAPITAL CONTRIBUTION AS MANAGING PARTNE R. HOWEVER, SINCE ASSESSEE HAD AVAILED LOAN FROM HDFC BANK AND CONSTRUCTED HOUSE WITHIN THREE YEARS FROM THE D ATE OF TRANSFER OF THE LAND TO THE FIRM, THE ASSESSEE CLAI MED EXEMPTION OF CAPITAL GAINS ON INVESTMENT MADE IN TH E CONSTRUCTION OF THE NEW BUILDING UNDER SECTION 54F. THE CONTENTION RAISED BY THE COUNSEL APPEARING FOR THE REVENUE IS THAT, IN ORDER TO QUALIFY FOR EXEMPTION UNDER SECTI ON 54F, THE ASSESSEE SHOULD HAVE PURCHASED HOUSE WITHIN ONE YEA R OR SHOULD HAVE CONSTRUCTED RESIDENTIAL HOUSE WITHIN A PERIOD OF THREE YEARS FROM THE DATE OF TRANSFER IN EITHER CAS E BY UTILIZING THE SALE PROCEEDS OF LAND. FURTHER, FOR QUALIFYING FOR EXEMPTION, THE ASSESSEE SHOULD HAVE, BEFORE THE DAT E OF FILING RETURN, DEPOSITED THE NET SALE CONSIDERATION RECEIV ED IN A NATIONALIZED BANK IN TERMS OF THE SECTION 54F(4) AN D THE RECEIPTS SHOULD HAVE BEEN PRODUCED ALONG WITH THE R ETURN FILED. THE COUNSEL FOR THE ASSESSEE ON THE OTHER H AND, CONTENDED THAT IN ORDER TO QUALIFY FOR EXEMPTION, T HERE IS NO NEED TO UTILIZE THE SALE CONSIDERATION TOWARDS THE CONSTRUCTION COST OF THE HOUSE AND IT IS ENOUGH DURING THE PERIO D OF THREE YEARS, EQUIVALENT AMOUNT IS INVESTED IN THE CONSTRU CTION OF THE HOUSE. ACCORDING TO THE ASSESSEES COUNSEL, THE AS SESSEE ADMITTEDLY HAD CONSTRUCTED NEW HOUSE WITHIN THREE Y EARS FROM THE DATE OF TRANSFER OF THE PROPERTY AND THEREFORE IS ELIGIBLE FOR EXEMPTION. ON GOING THROUGH SECTION 54F, PARTICULARLY SUB-SECT ION 4, IN ORDER TO QUALIFY FOR EXEMPTION ON CAPITAL GAINS, BE FORE THE LAST DATE FOR FILING RETURN, THE NET SALE CONSIDERATION SHOULD HAVE M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 8 BEEN DEPOSITED IN ANY BANK ACCOUNT SPECIFIED BY THE GOVERNMENT FOR THIS PURPOSE. IN FACT, THE REQUIREME NT OF SUB- SECTION 4 OF SECTION 54F IS THAT THE ASSESSEE SHOUL D PRODUCE ALONG WITH THE RETURN, PROOF OF DEPOSIT OF THE AMOU NT UNDER THE SPECIFIED SCHEME IN A NATIONALIZED BANK. ADMIT TEDLY, THE ASSESSEE ALLOWED THE FIRM TO WHICH THE PROPERTY WAS TRANSFERRED TO RETAIN AND USE IT AS A BUSINESS ASSE T AND TOWARDS CONSIDERATION HE GOT ONLY CREDIT OF LAND VA LUE IN HIS CAPITAL ACCOUNT. IN OTHER WORDS, SALE CONSIDERATIO N WAS NOT RECEIVED BY THE ASSESSEE IN CASH OR DEPOSITED THE S AME IN TERMS OF CL. 4 OF SECTION 54F WITH ANY NATIONALIZED BANK OR INSTITUTION. CONSEQUENTLY, THE ASSESSEE DID NOT HA VE THE SALE PROCEEDS AVAILABLE FOR INVESTMENT IN TERMS OF SCHEM E UNDER SECTION 54F (3). IN ORDER TO QUALIFY FOR EXEMPTION UNDER SECTION 54F(3), THE ASSESSEE SHOULD HAVE FIRST DEPO SITED THE SALE PROCEEDS OF THE PROPERTY IN ANY BANK ACCOUNT A ND THE CONSTRUCTION OF THE HOUSE TO QUALIFY FOR EXEMPTION UNDER S. 54F SHOULD HAVE BEEN COMPLETED BY UTILIZING THE SAL E PROCEEDS ALSO AVAILABLE WITH THE ASSESSEE. IN THIS CASE, TH OUGH THE ASSESSEE CONSTRUCTED NEW BUILDING WITHIN THE PERIOD OF THREE YEARS FROM THE DATE OF SALE, IT WAS WITH FUNDS BORR OWED FROM HDFC. THE ASSESSEE IS NOT ENTITLED TO EXEMPTION UN DER SECTION 54F BECAUSE THE ASSESSEE NEITHER DEPOSITED THE SALE PROCEEDS FOR CONSTRUCTION OF THE BUILDING IN THE BA NK IN TERMS OF SUB-SECTION (4) BEFORE THE DATE OF FILING RETURN S NOR WAS THE SALE PROCEEDS UTILIZED FOR CONSTRUCTION IN TERMS OF SECTION 54F(3). SO MUCH SO, THE ASSESSEE WAS NOT ENTITLED TO CLAIM EXEMPTION ON CAPITAL GAINS UNDER SECTION 54F OF THE ACT WHICH THE AO RIGHTLY DECLINED. M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 9 12. NOW THE ASSESSEE WANTS TO REVIEW THE ORDER OF THE TRIBUNAL IN THE INSTANT CASE CITING CERTAIN DECISIO NS OF THE TRIBUNAL. 13. IT IS WELL-SETTLED THAT STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONF ERRED. THERE IS NO EXPRESS POWER OF REVIEW CONFERRED ON TH IS TRIBUNAL. EVEN OTHERWISE, THE SCOPE OF REVIEW DOES NOT EXTENT TO RE- HEARING OF THE CASE ON MERIT. IT IS HELD IN THE CA SE OF CIT VS. PEARL WOOLLEN MILLOS (2011) 330 ITR 164/(2010) 191 TAXMAN 286 (PUNJ. & HAR.) HELD, THAT THE TRIBUNAL COULD NOT RE-ADJUDICATE TH E MATTER UNDER SECTION 254(2). IT IS WELL SETTLED THAT A ST ATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SU CH POWER IS EXPRESSLY CONFERRED. THERE WAS NO EXPRESS POWER OF REVIEW CONFERRED ON THE TRIBUNAL. EVEN OTHERWISE, THE SCO PE OF REVIEW DID NOT EXTENT TO REHEARING A CASE ON THE ME RITS. NEITHER BY INVOKING INHERENT POWER NOR THE PRINCIPL E 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 JUSTI FIED IN RECALLING ITS PREVIOUS FINDING RESTORING THE ADDITI ON, MORE SO WHEN AN APPLICATION FOR THE SAME RELIEF HAD BEEN EA RLIER DISMISSED. 14. THE SCOPE AND AMBIT OF APPLICATION OF SECTION 2 54(2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICAT ION OF MISTAKES APPARENT FROM 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 PAS SING OF A M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 10 FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISL ATIVE INTENT. THE ORDER PASSED BY THE TRIBUNAL UNDER SECTION 254( 1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED UNDER SECTION 254(2) EITHER ALLOWING THE AME NDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORD ER PASSED. THE ORDER AS AMENDED OR REMAINING UN-AMENDED IS THE EFFECTIVE ORDER FOR ALL PRACTICAL PURPOSE. AN ORDE R UNDER SECTION 254(2) DOES NOT HAVE EXISTENCE DE HORS THE ORDER UN DER SECTION 254(1). RE-CALLING OF THE ORDER IS NOT PERM ISSIBLE UNDER SECTION 254(2). RECALLING OF AN ORDER AUTOMATICALL Y NECESSITATES REHEARING AND RE-ADJUDICATION OF THE E NTIRE SUBJECT-MATTER OF APPEAL. THE DISPUTE NO LONGER RE MAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 O F THE ITAT RULES, 1963, AND THAT TOO ONLY IN CASE WHERE THE AS SESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSE NT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND DECIDED EX PARTE. JUDGED IN THE ABOVE BACKGROUND THE ORDER PASSED BY THE TRI BUNAL IS INDEFENSIBLE. 15. THE WORDS USED IN SECTION 254(2) ARE SHALL MAK E SUCH AMENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE . CLEARLY, IF THERE IS A MISTAKE, THEN AN AMENDMENT IS REQUIRED T O 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 ORDER AND PASS A FRESH DECISION. THAT WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDER AND THAT IS NOT PERMISSIBLE UNDER THE I T ACT. THE POWER TO RECTIF Y A MISTAKE UNDER SECTION 254(2) CANNOT BE USED FOR RECALLING T HE ENTIRE M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 11 ORDER. NO POWER OF REVIEW HAS BEEN GIVEN TO THE TR IBUNAL UNDER THE I T ACT. THUS, WHAT IT COULD NOT DO DIRE CTLY COULD NOT BE ALLOWED TO BE DONE INDIRECTLY. 16. IN THE CASE OF CIT VS. HINDUSTAN COCA BEVERAGES (P) LTD. (2007) 293 ITR 163/159 TAXMAN 127 (DELHI), THEIR LO RDSHIPS WHILE CONSIDERING THE POWERS OF THE TRIBUNAL UNDER SECTION 254(2) OF THE IT ACT, 1961 OBSERVED AS UNDER:- UNDER SECTION 254(2) OF THE IT ACT, 1961, THE TRIBU NAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVE R, IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALE NT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RE CTIFIED. RECTIFICATION IS A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PRE-REQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR) A MISTAKE APPARENT FRO M 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. 17. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERE D OPINION THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASS ESSEE IS MIS- CONCEIVED AND ACCORDINGLY THE SAME IS DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON 06 -01-2012. SD/- SD/- SMT ASHA VIJAYARAGHAVAN (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER. DATED:06-01-2012. M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 12 COPY FORWARDED TO: 1. SMT. V. KUMUDA, 7 - 1 - 644/17A, VEERARATNA TOWERS, SUNDERNAGAR COLONY, ERRAGADDA, HYDERABAD. 2. DCIT, CIR - 16(2),HYDERABAD. 3 4. 5 JMR* CIT (A) - V, HYDERABAD. CIT, HYDERABAD. DR, ITAT, HYDEERABAD. M.A.NO.183/HYD/2011 SMT. V. KUMUDA, HYDERABAD. ======================= 13