M/S Nathusingh Manibhai Patel & Co, Anand V. The I T Owd-3, Anand

MA 187/AHD/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6789 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1997-1998
• Appeal Filed On: 02-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S SURYAVANSHI
• Assessee Lawyers: A L THAKKAR
• Keywords: Business income
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI T K SHARMA, JM AND SHRI A N PAHUJA,AM M A NO.187/AHD/2009 [IN ITA NO.3138/AHD/2002 (ASSESSMENT YEAR:-1997-98) M/S NATUBHAI MANIBHAI PATEL & CO., AT: KHAMBHOLAJ, TALUKA ANAND V/S INCOME-TAX OFFICER, WARD-2, ANAND PAN: AABFN 9294 J [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] APPLICANT BY :- SHRI A L THAKKAR, AR REVENUE BY:- SHRI G.S.SURYAVANSHI, DR DATE OF HEARING :- 12-08-2011 DATE OF PRONOUNCEMENT:- 09-09-2011 O R D E R A N PAHUJA: THIS IS A MISCELLANEOUS APPLICATION[MA] FILED ON 2.6.2009 BY THE ASSESSEE, SEEKING RECTIFICATION OF AN ORDER DATED 29- 2-2008 OF THE ITAT IN ITA NO.3138/AHD/2002 FOR THE AY 1997-98. 2. THE APPLICANT SUBMITTED IN THEIR APPLICATION AS UNDER: 4.1 THE HON. IT AT HAS ERRONEOUSLY PRESUMED IN PARA 2 OF THE ORDER THAT SHRI BHARAT PATEL, PARTNER OF THE ASSESSEE FIRM EN DORSED THE STATEMENT OF GIRISH PATEL, ACCOUNTANT. INFACT, SHRI BHAR AT PATEL IS THE BROTHER OF THE PARTNER OF THE ASSESSEE FIRM AND NOT PA RTNER HIMSELF. IT IS ON ACCOUNT OF THESE REASONS THAT THE STATEMENT U/S 131 HAS A LSO BEEN SIGNED BY THE ACCOUNTANT OF THE FIRM. THE FACT THAT SHRI BHAR AT PATEL IS THE BROTHER OF THE PARTNER IS ALSO VERIFIABLE IN PARA 4 OF THE ASSE SSMENT ORDER. THE FACT OF THE MATTER IS THAT THE SURVEY OPERATION WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM ON 27-02-1997 WHEN NONE O F THE PARTNERS OF THE ASSESSEE FIRM WAS PRESENT. SURVEY OPERATION WAS CONDUCT ED IN THE PRESENCE OF THE ACCOUNTANT SHRI GIRISH PATEL AND THE B ROTHER OF THE PARTNER SHRI BHARATH PATEL. THE ADDITION HAS ALSO BEEN MADE O N THE BASIS OF THE STATEMENT RECORDED OF THE ACCOUNTANT AND BROTHER OF THE PARTNER OF 'A' FIRM WHICH HAS NO LEGAL SANCTITY. 5. IT HAS ALSO BEEN OBSERVED BY THE HON. TRIBUNAL THA T THE A.O. HAD GIVEN THE ASSESSEE A NUMBER OF OPPORTUNITIES TO PRODUCE TRANSACTION DETAILS WHICH WERE NOT AVAILED OFF. ON ACCOUNT OF THESE FACTORS THE ADDITION MADE ON ACCOUNT OF EXCESS STOCK NEEDS TO BE SUSTAINED. MA NO.187/AHD/2009 2 5.1 THE ORDER SUFFERS FROM INHERENT MISTAKES AND NON APP RECIATION OF THE FACTS AND ARGUMENTS AND ALSO NON COGNIZANCE OF THE E VIDENCES FILED AS IS EVIDENT FROM THE DISCUSSION MADE HEREBY. THE HON. TR IBUNAL HAS STATED THAT REFERENCE HAD BEEN MADE TO PAGE NO. 11 AND 12 O F THE PAPER BOOK. THE SAME CONTAINS THE LETTER DATED 17-03-1997 ADDRESSED TO THE I.T.O., WARD 2, ANAND. ATTENTION IS INVITED TO THE LAST PARA ON PAGE NO. 11 OF THE PAPER BOOK WHICH GIVES COMPLETE DETAILS OF PURCHASE AND SAL ES OF TOBACCO UP TILL THE DATE OF SURVEY I.E., 27-02-1997, AFTER V ERIFYING THE BOOKS OF ACCOUNTS, BILL BOOKS AND DELIVERY MEMO. THE NECESSARY ENCLO SURES AS APPEARING FROM PAGE 13 TO 39 OF THE PAPER BOOK ARE P ART OF THE SAME LETTER DATED 17.03.1997 ADDRESSED TO THE ITO WHICH HAS BEEN R EFERRED TO BY THE HON. 1TAT WHILE DECIDING THE APPEAL. ONE OF THE REASO NS FOR SUSTAINING THE ADDITIONS BY THE HON. ITAT WAS THAT NUMBERS OF OPP ORTUNITIES WERE GIVEN TO THE APPELLANT BY THE A.O. TO PRODUCE THE T RANSPORT BILLS WHICH HE WAS FAILED TO FURNISH. REFERENCE IS INVITED TO PAGE 34 TO 39 OF THE PAPER BOOK WHICH ARE THE DELIVERY MEMO CONTAINING THE TRANSPO RTATION DETAILS INCLUDING THE DATE OF DISPATCH, NAME OF CUSTOMER, GROSS/NE T WEIGHT, TRUCK OWNERS NAME, TRUCK DRIVERS NAME, DRIVING LICENSE NUMBER E TC. ALL THESE FACTS HAVE BEEN FURNISHED TO THE A.O., LD. CIT(A) AS W ELL AS THE HON. TRIBUNAL. ATTENTION WAS SPECIFICALLY DRAWN TO THIS LETTE R AND THE ENCLOSURES DURING THE COURSE OF THE HEARING BEFORE THE HON. IT AT. THE HON. IT AT WHILE PASSING THE ORDER HAS REFERRED TO THE LETTER HOW EVER HAS FAILED TO TAKE COGNIZANCE OF THE ENCLOSURES. ONE OF THE REASONS FOR SUSTAIN ING THE ADDITIONS BY THE HON. ITAT IS NON PRODUCTION OF TRANSPO RT BILLS BEFORE THE A.O. IS BASED ON INCORRECT FACTS AS IS CLEAR AND EVIDENT FROM THE PERUSAL OF THE PAPER BOOKS AND SPECIFICALLY THE LETTER PLACED ON PG. L 1 & 12 OF THE PAPER BOOK. 6. ATTENTION WAS ALSO DRAWN TO PAGE 13 OF THE PAPER B OOK WHICH GIVES THE STOCK POSITION UP TO THE DATE OF SURVEY WHICH GIVE T HE STOCK POSITION AS ON THE DATE OF SURVEY. 7. REFERENCE WAS ALSO INVITED TO THE LETTER DATED 10- 03-2000 FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND APPEARING ON PAGE 58 OF THE PAPER BOOK WHICH CONTAINED THE EXPLANATIONS REGA RDING THE ADDITIONS PROPOSED AND ALSO REFERRED TO CASE LAWS REGARD ING THE VALIDITY OF THE STATEMENT AND THE DISCLOSURE MADE THEREIN. 8. ADDITION WAS ALSO DRAWN TO THE LETTER DATED 21-03- 2000 INCLUDING THE ENCLOSURES THERETO WHICH WERE FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ARE APPEARING ON PAGE 75 TO 90 OF THE PAPER BOOK. DURING THE COURSE OF APPELLATE PROCEEDING PARTICULAR AT TENTION WAS DRAWN TOWARDS THESE PARTICULAR DOCUMENTS AS LISTED UNDER: PAGE NO. NATURE OF DOCUMENTS 79 SALE BILL NO.11/95-96 DATED 08-11-1995 ISSUED TO MAJALEES BIDI FACTORY 80 COPY OF ACCOUNT OF MAJALEES BIDI FACTORY MA NO.187/AHD/2009 3 FOR AY 1996-97 81 COPY OF ACCOUNT OF MAJALEES BIDI FACTORY FOR AY 1997-98 82 CONTRA ACCOUNT FROM THE BOOKS OF MAJALEES BIDI FACTORY FOR AY 1996-97 83 CONTRA ACCOUNT FROM THE BOOKS ON 1997-98 84 CERTIFICATE ISSUED BY MAJALEES BIDI FACTORY INDICATING THE PURCHASES MADE VIDE BILL NO. 11/95-96 AND ALSO THE DATE OF RECEIPT OF SUCH GOODS 85-90 DELIVERY MEMO/TRANSACTIONS RECEIVED AND THE GOODS DELIVERED TO MAJALEES BIDI FACTORY ALL THESE DETAILS WERE FURNISHED TO THE A.O. BOTH AT THE PRE ASSESSMENT STAGE I.E. IMMEDIATELY AFTER THE SURVEY OPERATIONS AS WELL AS DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND WERE ALSO BROUGHT TO T HE ATTENTION OF THE HON. TRIBUNAL DURING THE COURSE OF APPELLATE H EARING. FURTHERMORE ALL THESE FACTS AND OTHER EVIDENCES/DOCUMENTS HAVE NOT BEE N TAKEN INTO COGNIZANCE BY THE HON. ITAT THROUGH REFERENCE TO PAGE 11 & 12 OF THE PAPER BOOK HAS BEEN MADE WHICH CONTAINS THESE VERY EVIDENCES/DOCUMENTS. THE HON. ITAT HAS ALSO NOT TAKEN INT O COGNIZANCE THE VARIOUS JUDICIAL PRONOUNCEMENTS REFERRED TO PG. 58 TO 63 OF THE PAPER BOOK WHICH REFER TO THE ISSUE OF THE EVIDENTIARY VALUE OF THE STATEMENT AND THE DISCLOSURE MADE THEREIN. ALL THESE HAVE BEEN IGNORE D AND NO SPEAKING ORDER HAS BEEN PASSED WHY THE AFORESAID JUDICIAL DECISION S ARE NOT ACCEPTABLE. IN FACT, THE ADDITION HAS BEEN MADE SOLELY B Y PLACING BLIND RELIANCE OF THE STATEMENTS RECORDED DURING THE COURSE O F SURVEY PROCEEDINGS WHICH ARE OF THE ACCOUNTANT AND THE BROTHER OF THE PARTNER OF THE ASSESSEE FIRM. 9. DURING THE COURSE OF THE HEARING BEFORE THE HON. I TAT IT WAS POINTED OUT THAT THE SURVEY TEAM WHILE ADOPTING THE STOCK AS PER THE BOOKS OF ACCOUNT HAD ERRONEOUSLY CONSIDERED SALES ON THE BASIS O F DELIVERY VOUCHERS AND NOT ON THE BASIS OF SALES INVOICE MADE. REFER ENCE WAS ALSO INVITED TO PAGE 69 AND 70 OF THE PAPER BOOK WHICH CONT AINS DETAILS OF GOODS DISPATCHED AS PER THE DELIVERY MEMO INVENTORIED AS B-12 AND B-13 AND TREATED AS GOODS SOLD. ON ACCOUNT OF SUCH REASON THE A DOPTION OF STOCK AS PER THE BOOKS OF ACCOUNT ON THE BASIS OF DELIVERY NOTES TREATS SALE OF 33,471 K.G. (10,456 + 12,524 + 10,491) WHICH HAS AL READY BEEN INCLUDED IN THE SALE OF THE EARLIER YEARS I.E., 1996 - 1997. THE TOTAL SALES OF THE A.Y. 1996 - 1997 IS 2,76,418 K.G. WHICH INCLUDES THE QUANTITY OF 33,471 K.G. WHICH HAS AGAIN BEEN TREATED AS SALES FOR A.Y. 199 7 -1998 I.E., THE YEAR OF APPEAL ON ACCOUNT OF CALCULATION OF BOOK STOCK ON THE BASIS OF DELIVERY VOUCHERS. THE PARTY WISE SALES MADE IN A.Y. 199 6 - 1997 WAS ALSO BEEN REFERRED TO IN PAGE 77 AND 78 OF THE PAPER BOOK. ATTENTION WAS ALSO DRAWN TO THE HON. ITAT TO THE SALES INVOICE DATED 08-11-1995 OF THE GOODS SOLD TO MAJELEES BEEDI FACTORY OF 60,660 K.G. AMOU NTING TO MA NO.187/AHD/2009 4 RS.22,68,0 1 0/-. OUT OF THE SALE OF 60,660 KGS.OF GOOD S IN A.Y. 1996-97 GOODS WEIGHTING 33,471 KGS. HAVE BEEN DELIVERED IN THE YEAR UNDER APPEAL WHICH HAS AGAIN BEEN INCLUDED AS SALES FOR WORKING OUT T HE BOOK STOCK BY THE SURVEY PARTY. THEREFORE, THE SALES HAVE CALCULATED I N DUPLICATION TO THE EXTENT OF 33,471 K.G. WHICH IS A FACTUAL ERROR AND PO INTED DURING THE COURSE OF HEARING AND WHICH HAS NOT BEEN TAKEN INTO COGNIZANCE WHILE DECIDED THE ISSUE. SINCE, THE ORDER HAS BEEN RENDERED DRAWING INFERENCES FROM THE ABOVE FACTS, AND THE SAME BEING ERRONEOUS AND NOT CORRECT, JUDI CIAL PRONOUNCEMENTS CITED AND RELIED UPON DURING THE COURSE O F HEARING AND MENTIONED IN THE PAPER BOOK NOT BEING CONSIDERED AND N O COGNIZANCE OF THE SAME HAVING BEING TAKEN AND THE ARGUMENTS OF THE A SSESSEE NOT HAVING BEING CONSIDERED IN ENTIRETY IT IS RESPECTFULLY SU BMITTED THAT THE HONORABLE TRIBUNAL MAY PLEASE SUITABLY AMEND ITS ORDER TO RECTIFY THE AFORESAID MISTAKE APPARENT FROM THE RECORD. THE APPELLANT THEREFORE, PRAYS THAT THESE MISTAKES BEIN G APPARENT FROM RECORD MAY PLEASE BE RECTIFIED. 3. THE LD. AR ON BEHALF OF THE ASSESSEE MERELY REITERA TED WHAT IS MENTIONED IN THE MA WHILE THE LD. DR OPPOSED THE M A AND STATED THAT THE STATEMENTS MADE BY THE ACCOUNTANT AND BROT HER OF THE ASSESSEE DURING THE COURSE OF SURVEY, WERE LATER AF FIRMED BY THE PARTNER SHRI NATUBHAI MANIBHAI PATEL IN HIS STATEME NT RECORDED ON 11.3.1997 U/S 131 OF THE ACT. THE FACT THAT SHRI BHARTBHAI PATEL WAS BROTHER OF THE PARTNER IS EVIDENT FROM THE ASSE SSMENT ORDER AND IF INADVERTENTLY, HE IS STATED TO BE PARTNER IN PA RA 2 OF THE IMPUGNED ORDER, DOES NOT VITIATE THE FINDINGS OF THE ITAT. WHAT THE ASSESSEE NOW SEEKS IS REVIEW OF THE IMPUGNED ORDER, THE LD. DR ADDED. 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROU GH THE FACTS OF THE CASE. BEFORE ADVERTING TO THE ISSUES RAISED BY THE ASSESSEE IN THEIR MA, WE MAY HAVE A LOOK AT THE RELEVANT FINDIN GS OF THE ITAT IN THE THE ORDER DATED 29-02-2008 IN ITA NO.3138/AHD/2 002, WHICH READ AS UNDER:- 4 LEARNED COUNSEL FOR THE ASSESSEE REITERATED STAN D TAKEN BEFORE THE CIT(A) IN RESPECT OF MBF AND REFERRED TO RECONCILIATION ON PB PG. NO.11 AND 12 AND CONTENDED THAT ACCOUNTANT WAS NOT ABLE TO IMMEDIATELY POINT OUT TH E MA NO.187/AHD/2009 5 TRANSACTION WITH 'MBF' DURING THE COURSE OF SURVEY, AS HE WAS CONCERNED WITH ACCOUNTS ONLY AND OTHER PARTNER, SHR I BHARATBHAI WAS NOT CONNECTED WITH STOCK POSITION WA S CLARIFIED ONLY ON THE RETURN OF SHRI NATUBHAI FROM VELLORE, W HO HAD COMPLETE IDEA ABOUT THESE TRANSACTIONS, THEREFORE, STOCK RECONCILIATION FURNISHED BY THE ASSESSEE NEEDS TO B E UPHELD. 4.1 LEARNED DR, ON THE OTHER HAND, VEHEMENTLY CONTE NDS THAT NEITHER ACCOUNTANT OF THE FIRM NOR PARTNER, SH RI BHARATBHAI UTTERED A WORD ABOUT THE ALLEGED TRANSACTION ABOUT 'MBF'. 'MBF' IS VERY IMPORTANT CUSTOMER OF THE ASSESSEE AN D IT CANNOT BE POSSIBLE THAT ACCOUNTANT AND PARTNER OF T HE FIRM COULD NOT GIVE ANY IDEA ABOUT 'MBF' TRANSACTIONS AN D MOVEMENT OF GOODS. IN VIEW THEREOF, THE STATEMENT OF THESE TWO PERSONS WHO ARE ACTIVELY ENGAGED WITH ASSESSEE' S BUSINESS, AT THE TIME OF SURVEY, ASSUMES IMPORTANT, WHICH HAS TO BE RELIED ON. RELIANCE WAS PLACED ON DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SURJIT CHAWBDA, 1997 A IR 2560 (SC), DCIT VS. BHOGILAL MULCHAND, 96 ITD 334 (AHD), THEREFORE, ORDERS OF LOWER AUTHORITIES RELIED ON. 4.2 LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, CONTENDS THAT STATEMENT IN THESE TWO CITED CASES WE RE GIVEN UNDER SECTION 132(4), WHILE IN ASSESSEE'S CASE THEY WERE UNDER SECTION 131; THEREFORE, CASE LAWS ARE DISTING UISHABLE. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATE RIAL AVAILABLE ON RECORD. AS THE FACTS EMERGE, IT IS EVI DENT THAT AT THE TIME OF SURVEY, ASSESSEE'S ACCOUNTANT AND PARTN ER SHRI BHARATBHAI PRESENT BOTH ACCEPTED THE FACT ABOUT EXC ESS STOCK AND DID NOT SAY A WORD ABOUT 'MBF' OR ANY GOODS LYI NG WITH ASSESSEE AND BELONGING TO 'MBF'. STATEMENTS ARE VOL UNTARY AND HAVE NOT BEEN RETRACTED; THEREFORE, THESE ARE T O BE RELIED ON. MERELY BECAUSE SUBSEQUENTLY A PARTNER COMES BAC K AND GIVES A STATEMENT, WHICH DOES NOT CHANGE THE STATEM ENT OF EARLIER TWO WITNESSES IN MATERIAL TERMS ADDITIONS C ANNOT BE DELETED. BESIDES, AO GAVE ASSESSEE NUMBER OF OPPORT UNITIES TO PRODUCE TRANSPORT BILLS, WHICH WERE NOT PRODUCED . IN VIEW OF THE OBSERVATIONS OF AO AND CIT(A), WE SEE NO INFIRM ITY IN THEIR ORDERS IN SUSTAINING ADDITION ON ACCOUNT OF EXCESS STOCK. BESIDES, REJECTION OF BOOKS OF ACCOUNT ALSO CANNOT BE FOUND FAULT WITH AND ADDITION MADE IN THIS BEHALF IS ALSO UPHELD. 5. INDISPUTABLY, THE PARTNER SHRI NATUBHAI PATEL IN HIS STATEMENT RECORDED ON 11.3.1997 U/S 131 OF THE ACT, ENDORSED THE STATEMENTS OF ACCOUNTANT OF THE FIRM AND HIS BROTHER BHARATBHA I PATEL DURING THE COURSE OF SURVEY. SHRI BHARTBHAI PATEL WAS BROTHER OF THE PARTNER MA NO.187/AHD/2009 6 AND NOT PARTNER IS EVIDENT FROM THE ASSESSMENT ORD ER AND IF INADVERTENTLY, HE HAS BEEN REFERRED TO AS PARTNER IN PARA 2 AND 4 OF THE IMPUGNED ORDER, THAT DOES NOT VITIATE THE FINDI NGS OF THE ITAT ON MERITS. THE FACT THAT TRANSPORTATION DETAILS OR CONTRA ACCOUNT OF THE MAJLESS BIDI FACTORIES ,WERE NOT PRODUCED ,IS EVIDE NT FROM PARA 11(C) OF THE ASSESSMENT ORDER. IN FACT PARA 11(C) O F THE ASSESSMENT ORDER AND PARA 5 OF THE ORDER OF THE LD. CIT(A) WHE N PERUSED ,SIGNIFY THE CONTEXT OF TRANSPORTATION BILLS. THE ITAT MEREL Y QUOTED FROM THE OBSERVATIONS OF THE AO. AS IS APPARENT FROM THE OBS ERVATIONS IN THE AFORESAID PARA 4 & 5 OF THE ORDER OF THE ITAT, THE ASSESSEE DID NOT EVEN WHISPER ABOUT ANY SUCH TRANSPORTATION BILLS IN THEIR SUBMISSIONS BEFORE THE ITAT. NO SUCH JUDICIAL PRONO UNCEMENTS AS HAVE BEEN REFERRED TO IN THE LETTER DATED 10.3.2000 FILED BEFORE THE ITO, PLACED ON PAGE 58-63 OF THE PAPER BOOK , WERE EVER SPE CIFICALLY CITED BEFORE THE ITAT. AS REVEALED FROM THE AFORESAID FINDINGS OF T HE ITAT AND THE AVERMENTS IN THE PRESENT APPLICATION THROUGH HIS MA, WHAT THE ASSESSEE NOW SEEKS IS REVIEW OF THE AFORESAID ORDER DATED 29.2.2008. IN THIS SITUATION, WE ARE OF THE OPINION THAT THERE IS NO MISTAKE APPARENT FROM THE RECORDS, REQUIRING RECTIF ICATION OF THE AFORESAID ORDER. THE RECTIFICATION NOW BEING SOUGHT IN THE MISCELLANEOUS APPLICATION, IN OUR OPINION, IS NOTHI NG BUT REVIEW OF THE ORDER OF THE ITAT . THE TRIBUNAL IN THE ABSENCE OF ANY EXPRESS POWER CANNOT BE SAID TO HAVE AN INHERENT POWER OF S UBSTANTIVE REVIEW. THE REVIEW OF ITS OWN ORDER BY THE TRIBUNAL IS FORBIDDEN IN LAW; IT CANNOT BE PERMITTED TO ACHIEVE THE SAME OBJ ECT BY EXERCISING ITS POWER UNDER SUB-SECTION (2) OF SECTION 254. ONC E A POSSIBLE VIEW HAS BEEN TAKEN ON THE BASIS OF THE MATERIAL ON RECO RD, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE , IT CANNOT BE SAID THAT THERE IS APPARENT MISTAKE, WHICH CAN BE CORREC TED UNDER SECTION 254(2). IN THE CASE OF V. P. MISRA & OTHERS, ITO V. ITAT [1977] 106 ITR 691, THE HONBLE GUJARAT HIGH COURT RELYING UP ON BALARAM'S CASE [1971] 82 ITR 50 (SC), HELD THAT A DECISION G IVEN BY THE TRIBUNAL ON A DEBATABLE POINT OF LAW CANNOT BE SUBS EQUENTLY MA NO.187/AHD/2009 7 CONSIDERED AS SHOWING ANY MISTAKE APPARENT FROM THE RECORD WHICH THE TRIBUNAL COULD CONSEQUENTLY RECTIFY. IN SMT. B ALJEET JOLLY V. CIT [2001] 250 ITR 113 (DELHI), PASAYAT C.J. AS HIS LOR DSHIP THEN WAS, HELD: 'A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTIO N 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVE RY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECTION 254(2) MAKES IT CLEAR THAT ONLY AMENDMENT TO THE OR DER PASSED UNDER SECTION 254(1) IS PERMISSIBLE WHERE IT IS BRO UGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. IN OUR VIEW AMENDMENT OF AN ORDER DOES NOT MEAN OBLITE RATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A N EW ORDER: WHAT THE ASSESSEE INTENDS TO DO IN THE PRESENT CASE IS PRECI SELY THE SUBSTITUTION OF THE ORDER, WHICH ACCORDING TO US, I S NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) AND, THEREFO RE, THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THERE WAS NO MISTAKE APPARENT ON THE FACE OF THE RECORD. 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 CONFINE D TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAND, IT DOES N OT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PR OCESS OF INVESTIGATION, ARGUMENT OR PROOF.' 5.1 HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. RAMESH ELECTRIC & TRADING CO.,203 ITR 497(BOM.) OBS ERVED : ' UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAK E APPARENT FROM THE RECORD', AMEND ANY ORDER PASSED BY IT UNDER SUB -SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPT ED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIE W ITS OWN ORDERS UNDER THE PROVISIONS OF THE INCOME-TAX ACT, 1961. T HE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MIST AKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS ME RELY A POWER OF AMENDING ITS ORDER. THE EXTENT OF THIS POWER OF REC TIFICATION WAS CONSIDERED BY THE SUPREME COURT AS FAR BACK AS IN 1 971 IN THE CASE OF T.S. BALARAM, ITO V. VOLKART BROS. [1971] 82 ITR 50. ' 5.2. IT IS WELL-SETTLED THAT THIS TRIBUNAL HAS NO POWER OF REVIEW SINCE NO SUCH POWER HAS BEEN SPECIFICALLY CONFERRED ON THE TRIBUNAL BY THE STATUTE. THE HONBLE ANDHRA PRADESH HIGH CO URT IN THE CASE OF CIT V. ITAT [1994] 206 ITR 126 WHILE CONSIDERING THE POWER OF THE TRIBUNAL UNDER SECTION 254(2), HELD AS UNDER: MA NO.187/AHD/2009 8 'WE ARE OF THE OPINION THAT THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STATUTE, HAS TO CONFINE ITSELF IN THE EXERCI SE OF ITS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPEC IFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS A S IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIFICALLY CONFER RED 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 INHE RENT POWER OF RECTIFICATION OR REVIEW OR REVISION.' 5.3. THE HONBLE ORISSA HIGH COURT IN CIT V. IT AT [1992] 196 ITR 590 HELD THAT A MISTAKE WHICH CAN BE RECTIFIED UNDE R SECTION 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. A SIMILAR VIE W WAS EXPRESSED BY THE HONBLE HIGH COURT IN THE CASE OF CIT V. IT AT [1994] 210 ITR 397(ORISSA). IN CIT VS. GOKULCHAND AGARWAL (1993) 2 03 ITR 14, THE HONBLE CALCUTTA HIGH COURT HAD TO CONSIDER A CASE WHERE THERE WAS A MISTAKE BROUGHT ABOUT THROUGH AN OVERSIGHT OF CER TAIN FACTS. THE HONBLE HIGH COURT HELD THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2 ) OF THE ACT. IT IS WELL-SETTLED THAT SECTION 254(2) DOES NOT AUTHORISE THE TRIBUNAL TO REVIEW ITS ORDER OR EVEN WORSE, TO SIT IN APPEAL OV ER ITS EARLIER ORDER AS HELD IN CIT V. KRISHNA RANA (DR.) (MRS.) [1987] 167 ITR 652 (PATNA),FOLLOWED IN ITO VS. ITAT,229 ITR 651(PATNA ). 5.4 HONBLE MADRAS HIGH COURT IN THE CASE O F CIT V. R. CHELLADURAI [1979] 118 ITR 108, HELD THAT THE TRIBU NAL'S POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EARLIER ORDER B UT ONLY TO AMEND IT WITH A VIEW TO RECTIFYING ANY ERROR APPARENT FROM T HE RECORD. IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT THRO UGH THIS MA, THE APPLICANT SEEKS TO HAVE REVIEW OF THE ORDER DATE D 29.2. 2008, WHICH AS PER THE LAW IS NOT PERMISSIBLE. THE APPLIC ATION UNDER SECTION 254(2) OF THE ACT IS FOR RECTIFICATION OR M ODIFICATION OF THE ORDER OF THE TRIBUNAL WHEN THERE IS A MISTAKE IS AP PARENT FROM THE MA NO.187/AHD/2009 9 RECORD. THE TRIBUNAL IN THE GARB OF MISTAKE CANNOT GIVE FRESH HEARING AND RE-EXAMINE THE MERITS AS AN APPELLATE COURT. 6. IN THE LIGHT OF AFORESAID DISCUSSION, THERE BEI NG NO MISTAKE APPARENT FROM RECORDS, REQUIRING RECTIFICATION, TH E MA IS REJECTED. ORDER PRONOUNCED IN THE COURT TODAY ON 9 -09-2011 SD/- SD/- ( T K SHARMA ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 9 -09-2011 COPY OF THE ORDER FORWARDED TO: 1. M/S NATUBHAI MANIBHAI PATEL & CO., AT: KHAMBHOLA J, TA. ANAND 2. THE ITO, WARD-2, ANAND 3. CIT CONCERNED 4. CIT(A)-IV, BARODA 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD