Mr. Balanarasimha Reddy, Hyderabad V. I.T.O. Ward-11(4), Hyderabad

MA 202/HYD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0007 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 21-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPTH
• Keywords: Source of fund; Reasonable cause; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA NO. 202/HYD/2012 ARISING OUT OF ITA NO. 554/HYD/2011 ASSESSMENT YEAR 2007-08 SRI M. BALANARASIMHA REDDY HYDERABAD PAN: ADWPM7881L VS. THE INCOME TAX OFFICER WARD-11(4) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI A. SRINIVAS RESPONDENT BY: SMT. AMISHA S. GUPTH DATE OF HEARING: 01.02.2013 DATE OF PRONOUNCEMENT: 28.03.2013 O R D E R PER CHANDRA POOJARI, AM: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SE EKS RECTIFICATION IN THE CONSOLIDATED ORDER OF THE TRIB UNAL DATED 25.1.2012 IN ITA NO. 554/HYD/2011 AND OTHERS FOR ASSE SSMENT YEAR 2007-08. 2. THE LEARNED AR SUBMITTED THAT THE ASSESSEE RAISED T HE GROUND IN ITA NO. 554/HYD/2011 WITH REGARD TO SUSTAIN ING AN ADDITION OF RS. 1,17,50,000 MADE BY THE LOWER AUTHO RITIES. THE AR SUBMITTED THAT THERE WAS SALE AGREEMENT DATED 18 .11.2006 ALONG WITH OTHERS VIZ., Y. SANJEEVA REDDY, K. JAGAN MOHAN REDDY AND 14 OTHER PERSONS FOR PURCHASE OF 56 ACRES AND 2 4 GUNTAS OF LAND FOR A TOTAL INVESTMENT OF RS. 1,22,50,000. TH IS INVESTMENT WAS EXPLAINED BY THE ASSESSEE AS FOLLOWS: M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 2 DETAILS AMOUNT (RS.) OWN FUNDS 5,00,000 CONTRIBUTION FROM SHRI S. RAM REDDY (FATHER-IN- LAW) SURPANCH, GHATKESAR, R.R. DISTRICT 22,50,000 CONTRIBUTION FROM SRI K. RAGHUNATH REDDY, S/O S. RAM REDDY, R/O KUKATPALLY, HYD. 10,00,000 CONTRIBUTION FROM SRI D. SATYANARAYANA RAO, R/O SRIRAM NAGAR COLONY, OUTSIDE GOWLIPURA, HYDERABAD. 15,00,000 CONTRIBUTION FROM SRI A. NARASIMHA REDDY, R/O ANKSHAPUR VILLAGE, GHATKESAR MANDAL, RR DISTRICT. 25,00,000 CONTRIBUTION FROM SRI A. BUTCHI REDDY R/O ANKSHAPUR VILLAGE, GHATKESAR MANDAL, R.R. DISTRICT. 10,00,000 CONTRIBUTION FROM SRI P. BUCHI REDDY R/O MAKTHA ANANTHARAM VILLAGE, BIBINAGAR MANDAL, NALGONDA DISTRICT. 15,00,000 CONTRIBUTION FROM SRI P. PANDU S/O LATE NARASIMHA, ENKIRYAL VILLAGE, BIBINAGAR MANDAL, NALGONDA DISTRICT. 20,00,000 TOTAL 1,22,50,000 3. THE CIT(A) SUSTAINED THE ADDITION OF RS. 1,17,50,00 0 MADE BY THE ASSESSING OFFICER. ON THIS, THE ASSESSEE CA ME IN APPEAL BEFORE THIS TRIBUNAL. THE TRIBUNAL CONFIRMED ORDER S OF THE LOWER AUTHORITIES. ACCORDING TO THE AR THE TRIBUNA L WHILE ADJUDICATING THE ABOVE GROUND IT WAS OBSERVED AS FO LLOWS: I) S. RAM REDDY NO EVIDENCE RELATING TO SALE OF LAND WAS PRODUCED BEFORE THE LOWER AUTHORITIES. WITHOUT SUBSTANTIATING SOURCE OF FUNDS, THE ASSESSEE HAS BE EN CLAIMING THE TRANSACTION AS GENUINE.' ON THIS OBSERVATION THE LEARNED AR SUBMITTED THAT T HIS CREDITOR SRI A. RAM REDDY PRODUCED THE SALE DEED CO PY AND ALSO AGREEMENT OF SALE IN SUPPORT OF THE SOURCE OF FUNDS. THIS WAS EVIDENCED BY ANSWER TO QUESTION NO . 15 M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 3 IN THE SWORN STATEMENT RECORDED BY THE ASSESSING OF FICER ON OATH ON 19.2.2008. HE ALSO PLACED ON RECORD THE COPIES OF SWORN STATEMENT. II) A. BUCHI REDDY : IT WAS OBSERVED BY THE TRIBUNAL THAT 'NO SALE DOCUMENTS WITH REGARD TO SALE OF PROPERTY HAVE BEEN FURNISHED TO PROVE THE ASSESSEES CASE.' ACCORDING TO THE AR, ANSWER TO QUESTION NO. 11 IN T HE SWORN STATEMENT RECORDED ON 22.2.2008 FROM HIM BY T HE ASSESSING OFFICER THAT HE HAS PRODUCED A COPY OF SA LE DEED DATED 18.2.2006 TO EXPLAIN THE SOURCE OF FUNDS . III) A. NARASIMHA REDDY : OBSERVATION OF THE TRIBUNAL IS THAT 'NO DETAILS WERE FURNISHED REGARDING SALE OF PROPER TY.' ACCORDING TO THE AR ANSWER TO QUESTION NOS. 13 AND 16 IN THE SWORN STATEMENT RECORDED BY THE ASSESSING OFFIC ER ON 25.2.2008 SUGGESTS THAT THE CREDITOR FURNISHED NOT ONLY DETAILS BUT ALSO FURNISHED EVIDENCE FOR SOURCE OF F UNDS. IV) P. PANDU : OBSERVATION OF THE TRIBUNAL IS THAT 'THE ASSESSEE HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCE REGARDING THE SALE PROCEEDS OF PROPERTY OF HIS FATH ER OF P. PANDU AND COLLECTION OF AMOUNT FROM VILLAGERS AS MENTIONED ABOVE. SIMILARLY THERE WAS NO PROOF WITH REGARD TO SALE OF PROPERTY BY SRI PANDU.' M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 4 ACCORDING TO THE AR, ANSWER TO QUESTION NOS. 22 AND 36 IN THE SWORN STATEMENT RECORDED ON 3.3.2008 SUGGESTS T HAT THE ASSESSEE HAS FURNISHED NOT ONLY DETAILS BUT ALS O EVIDENCE FOR SOURCE OF FUNDS. V) D. SATYANARAYANA RAO : THE TRIBUNAL OBSERVED THAT FURTHER IT WAS EXPLAINED THAT THE CREDITOR RECEIVE D AN AMOUNT OF RS. 3 LAKHS FROM HIS FATHER, RS. 10 LAKHS FROM HIS WIFE AND BALANCE OF RS. 12 LAKHS WAS STATED TO BE HIS PAST SAVINGS AND AGRICULTURAL INCOME. THIS CREDITOR RETIRED FROM HIS SERVICE IN THE YEAR 1997 AND AFTER LAPSE O F 9 YEARS, THIS CREDITOR EXPLAINED THE SOURCE THAT IT I S OUT OF HIS RETIREMENT BENEFITS WITHOUT ANY DOCUMENTARY EVIDENCE.' ACCORDING TO THE AR ONLY RS. 2 LAKHS IS CLAIMED AS OUT OF PAST SAVINGS/CURRENT AGRICULTURAL INCOME AND RS. 10 LAKHS CONTRIBUTED BY WIFE OUT OF MORTGAGE LOAN TAKEN BY H ER AND RS. 3 LAKHS CONTRIBUTED BY HIS FATHER SRI D. KISHAN RAO OUT OF HIS AGRICULTURAL INCOME. IN SUPPORT OF THE CRED IT WORTHINESS, COPIES OF AGRICULTURAL LAND HOLDING OF THE CREDITOR HIS FATHER, MORTGAGE LOAN SANCTION LETTER FOR RS. 12 LAKHS AND CREDITOR WIFE'S BANK STATEMENT WERE FI LED BEFORE THE ASSESSING OFFICER. THEY ARE PART OF THE ASSESSMENT RECORD. BEING SO, CONSIDERING THE TOTAL ITY OF M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 5 FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE C ASE IS TO BE DECIDED IN FAVOUR OF THE ASSESSEE RATHER THAN AGAINST THE ASSESSEE. 4. THE LEARNED DR SUBMITTED THAT THOUGH THE ASSESSEE FURNISHED SALE DEED COPY TO EXPLAIN THE SOURCES IN RESPECT OF CREDIT IN THE NAME OF SRI A. RAM REDDY AND A. BUCHI REDDY, IT CANNOT BE PRESUMED THAT THEY HAVE KEPT THE SAME FUN D TO LEND TO THE ASSESSEE. FURTHER IN THE CASE OF CREDIT IN THE NAME OF SRI A. NARASIMHA REDDY NO SALE DEED WAS FILED BUT ONLY AN INCOME CERTIFICATE WAS FURNISHED TO THE ASSESSING OFFICER. FURTHER SHE SUBMITTED THAT THE TRIBUNAL CONSIDERED THE ENTIRE S ET OF FACTS AND DECIDED THE ISSUE. SHE RELIED ON THE JUDGEMENT OF SUPREME COURT IN THE CASE OF CIT VS. KARAMCHAND THAPAR AND BROS. P. LD. (176 ITR 535). 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE ASSESSEE BEFORE US FILED A SET OF S WORN STATEMENTS RECORDED FROM SRI A RAM REDDY, SRI A. BU CHI REDDY, SRI A. NARASIMHA REDDY AND SRI P. PANDU AND ALSO A CONFIRMATION LETTER FROM K. ANASUYA WIFE OF SRI B. SATYANARAYAN A RAO. AS SEEN FROM THE RECORD THESE ARE NOT FURNISHED BEFORE THIS TRIBUNAL ON EARLIER OCCASION. HENCE RECTIFICATION OF THE MISTAKE IN THE ORDER OF THE TRIBUNAL IS NOT POSSIBLE U/S. 25 4(2) OF THE ACT AT THIS STAGE ON CONSIDERATION OF THESE DOCUMEN TS. M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 6 6. FURTHER WHILE DISPOSING OF THE APPEAL OF THE ASSESS EE THE TRIBUNAL CONSIDERED THE DETAILS FURNISHED BY THE AS SESSEE AS FOLLOWS: (I) SRI S. RAM REDDY : THOUGH THE SAID PERSON HAD A BANK ACCOUNT, AMOUNT WAS ADVANCED BY CASH INSTEAD BY CHE QUE AND NO EVIDENCES FOR TRANSFER OF MONEY WERE PRODUCE D. FURTHER, IT CAN BE SEEN FROM THE SWORN STATEMENT AT Q. NO. 15, THAT THE SAID PERSON RECEIVED AN AMOUNT OF RS. 12,00,000 ON SALE OF 6 ACRES OF LAND IN THE MONTH O F JUNE 2006 BY HIMSELF AND HIS SON. AS PER THE STATEMENT THE AMOUNTS WERE RECEIVED IN THE MONTH OF JUNE 2006 IN THE BANK AND WHEN THE SAID AMOUNTS WERE WITHDRAWN FROM THE BANK ACCOUNT BY THE SAID PERSON AND HIS SON WAS NOT EXPLAINED WITHOUT ANY PROOF. WITH REGARD TO THE BA LANCE AMOUNTS, SRI S. RAM REDDY STATED THAT, HE FURTHER S OLD AGRICULTURAL LANDS TO THE EXTENT 5 1/2 ACRES, WHICH WERE IN THE NAME OF HIS DAUGHTERS SMT. M. PADMA AND SMT. N. UMA THROUGH AGREEMENT OF SALE CUM GPA EXECUTED ON 19.05.2006 FOR A TOTAL CONSIDERATION OF RS. 11 LAKH S. AS PER THE STATEMENT IT IS NOTICED THAT HIS DAUGHTERS RECEIVED AN AMOUNT OF RS. 4 LAKHS IN ADVANCE IN CHEQUES AND THE BALANCE AMOUNT OF RS. 7 LAKHS WOULD BE RECEIVED BY THE VENDORS AT THE TIME OF REGISTRATION AND IT WAS NOT PROPERLY EVIDENCED BY HIM AS TO WHEN THE SAID ADVANCE AMOUNT S M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 7 CREDITED INTO THEIR INDIVIDUAL BANK ACCOUNTS AND TH E SAME WERE WITHDRAWN AND GIVEN BACK TO HIM. ALSO WITH RE GARD TO THE BALANCE AMOUNT OF RS. 7 LAKHS, SRI S. RAM RE DDY WAS UNABLE TO STATE CLEARLY AS TO WHEN THE SAID AMO UNTS WERE RECEIVED BY HIS DAUGHTERS AND GIVEN TO HIM. EV EN IF IT IS TO BE BELIEVED THAT THE SAID S. RAM REDDY HAS ADVANCED AMOUNTS TO THE ASSESSEE FOR PURCHASE OF LA ND ON HIS BEHALF, THE SOURCES WERE NOT EXPLAINED PROPERLY AND ALSO IT IS PERTINENT TO MENTION HERE THAT, HOW CAN ANY PRUDENT BUSINESS MAN CAN INVEST WITHOUT KNOWING THE FULL PARTICULARS OF THE LAND AND WRITTEN AGREEMENT. THIS CAN BE EVIDENT FROM ANSWERS TO Q. NO. 26 TO 28. AS THE SA ID DETAILS WERE ALREADY AVAILABLE ON RECORD AT THE TIM E OF ASSESSMENT AND DISPOSAL OF APPEALS BY THE COMMISSIO NER OF INCOME TAX (APPEALS) AND THE TRIBUNAL, THERE IS NO MISTAKE APPARENT FROM THE RECORD AND THE ASSESSEE'S PLEA MAY NOT BE ALLOWED. (II) SRI A. BUCHIREDDY : AS PER THE STATEMENTS, THOUGH THE DOCUMENTS WERE PRODUCED, HOWEVER, THE SAID PERSON H AS FAILED TO PROVE THE CREDITWORTHINESS AND GENUINENES S OF THE TRANSACTION BY NOT SUBSTANTIATING WITH ANY EVID ENCES IN THE FORM OF WRITTEN AGREEMENT AND FLOW OF AMOUNT S BY SRI A. BUCHI REDDY TO THE ASSESSEE. AFTER CONSIDERI NG THE SAME, THE ASSESSMENT WAS COMPLETED AND ALSO THE APP EALS M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 8 WERE DISPOSED OFF BY THE CIT{A) AND THE TRIBUNAL. H ENCE, IN VIEW OF THE ABOVE, AS THERE IS NO MISTAKE APPARE NT FROM THE RECORD ON THIS POINT, THE ASSESSEE'S PLEA IS RE JECTED. (III) SRI A. NARASIMHA REDDY : DURING THE COURSE OF STATEMENT, THOUGH THE SAID PERSON SUBMITTED THE COPY OF THE ENCUMBRANCE CERTIFICATE IN PROOF OF SALE OF LANDS, THE SOURCES FOR THE AMOUNTS ADVANCED WERE NOT PROVED IN TERMS OF ANY DOCUMENTARY EVIDENCES WHICH IS VERY MU CH EVIDENT FROM THE ANSWER TO THE Q. NO. 17. AFTER CONSIDERING THE SAME, THE ASSESSMENT WAS COMPLETED AND ALSO THE APPEALS WERE DISPOSED OFF BY THE CIT{A) AN D THE TRIBUNAL. HENCE, IN VIEW OF THE ABOVE, AS THERE IS NO MISTAKE APPARENT FROM THE RECORD ON THIS POINT, THE ASSESSEE'S PLEA IS REJECTED. (IV) P. PANDU : IN THIS CASE NO EVIDENCES WERE PRODUCED TOWARDS THE SOURCES FOR THE ADVANCES TO THE ASSESSE E. ANSWERS TO Q. NOS. 22 TO 36 OF SWORN STATEMENT OF T HE SAID PERSON, WHICH THE ASSESSEE IS RELYING UPON ALS O SUPPORTS THE POINT. THE SAID PERSON STATED THAT PAR T OF THE ADVANCES WERE MET OUT OF THE SALE OF LAND EXECUTED ON 21.12.2006, WHERE HE HAS RECEIVED AN AMOUNT OF RS. 7,73,000. IT IS NOTICED THAT DATE MENTIONED IS SUBS EQUENT TO THE DATE I.E., 18.11.2006 ON WHICH DATE, THE ASS ESSEE ALONG WITH FOUR OTHERS HAVE ADVANCED AMOUNT OF RS. 4.90 M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 9 CRORES FOR PURCHASE OF LANDS. HENCE IN VIEW OF THES E FACTS THERE IS NO MISTAKE APPARENT FROM RECORD. (V) D. SATYANARAYANA RAO : DURING THE COURSE OF STATEMENT NO EVIDENCES WERE PRODUCED WITH REGARD TO THE SOURCES FOR THE ADVANCES MADE TO THE ASSESSEE. THE SAID PERSON SOUGHT A WEEK TIME AND HAS NOT PRODUCED ANY EVIDENC E. FURTHER WITH REGARD TO THE AMOUNTS RECEIVED FROM D. SATYANARAYANA'S WIFE, MORTGAGE LOAN PROCEEDINGS FRO M THE BANK WERE SUBMITTED NOWHERE IN IT IS MENTIONED THAT AN AMOUNT OF RS. 12 LAKHS WAS RAISED THROUGH MORTGAGE LOAN ON 29.08.2006 AND OUT OF THE SAME AN AMOUNT OF RS. 10 LAKHS WAS ADVANCED AS LOAN TO SRI D. SATYANARAYANA RAO. FURTHER WITH REGARD TO THE BALANCE AMOUNTS, NO EVID ENCES WERE SUBMITTED. THOUGH THE SAID PERSON IS HAVING TA XABLE INCOME AND BANK ACCOUNTS, THE AMOUNTS WERE ADVANCED THROUGH CASH AND WITHOUT ANY WRITTEN AGREEMENT AND ANY EVIDENCES. AS THE SAME HAS ALREADY BEEN CONSIDERED WHILE COMPLETING THE ASSESSMENT AND DISPOSING OF THE APPE ALS BY THE CIT(A) AND TRIBUNAL, THE ASSESSEE'S PLEA FOR MISTAKE APPARENT FROM THE RECORD IS REJECTED. 7. IN VIEW OF THE ABOVE FACTS, THE MISTAKES APPARENT F ROM RECORDS AS POINTED OUT BY THE ASSESSEE IN HIS MISCE LLANEOUS APPLICATION ARE WITHOUT ANY BASIS AND HAVE ALREADY BEEN CONSIDERED BY THE ASSESSING OFFICER WHILE COMPLETIN G THE M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 10 ASSESSMENT AND ALSO CONSIDERED BY BOTH THE CIT(A) A ND THE TRIBUNAL WHILE DISPOSING OF THE APPEALS. 8. FURTHER IT IS WELL SETTLED THAT STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRE SSLY CONFERRED. THERE IS NO EXPRESS POWER OF REVIEW CO NFERRED ON THIS TRIBUNAL. EVEN OTHERWISE, THE SCOPE OF REVIEW DOES NOT EXTENT TO RE-HEARING OF THE CASE ON MERIT. IT IS H ELD 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 TH AT A STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONFERRED. THERE WA S NO EXPRESS POWER OF REVIEW CONFERRED ON THE 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 MISTAK E OF COURT NOT PREJUDICING A LITIGANT NOR BY INVOLVIN G DOCTRINE OF INCIDENTAL POWER, COULD THE TRIBUNAL REVERSE A DECISION ON THE MERITS. THE TRIBUNAL WAS NOT JUSTIFIED IN RECALLING ITS PREVIOUS FINDING RESTORING THE ADDITION, MORE SO WHEN AN APPLICATION 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 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 FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISL ATIVE INTENT. THE ORDER PASSED BY THE TRIBUNAL UNDER S. 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 11 UNDER S. 254(2) EITHER ALLOWING THE AMENDMENT OR RE FUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMENDED OR REMAINING UN-AMENDED IS THE EFFECTIVE ORDER FOR ALL PRACTICAL PURPOSES. AN ORDER UNDER S. 254(2) D OES 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-ADJUDIC ATION OF THE ENTIRE SUBJECT-MATTER OF APPEAL. THE DISPUTE NO LO NGER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE I TAT RULES, 1963, AND THAT TOO ONLY IN CASE WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME W HEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX-PARTE. JUDG ED IN THE ABOVE BACKGROUND THE ORDER PASSED BY THE TRIBUNAL I S INDEFENSIBLE. 10. THE WORDS USED IN S. 254(2) ARE SHALL MAKE 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 PARTICULA R MISTAKE. THE PROVISION DOES NOT INDICATE THAT THE TRIBUNAL CAN R ECALL THE ENTIRE ORDER AND PASS A FRESH DECISION. THAT WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDER AND THAT IS NOT PERMISSI BLE UNDER THE IT ACT. THE POWER TO RECTIFY A MISTAKE UNDER S. 25 4(2) CANNOT BE USED FOR RECALLING THE ENTIRE ORDER. NO POWER OF R EVIEW HAS M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 12 BEEN GIVEN TO THE TRIBUNAL UNDER THE IT ACT. THUS, WHAT IT COULD NOT DO DIRECTLY COULD NOT BE ALLOWED TO BE DONE IND IRECTLY. 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 WHILE CONSIDERING THE POWERS OF THE TRIBU NAL UNDER S. 254(2) OF THE IT ACT, 1961 OBSERVED AS UNDER: UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVE R, IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. 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 FROM THE RECORD), BY IT S 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 MISTAK ES APPARENT FROM THE RECORD. (B) SECONDLY, THAT NO PARTY APPEARING BEFORE THE TRIBUN AL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL AND IF THE PREJUDICE HAS RESULTED TO T HE PARTY, WHICH PREJUDICE 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 M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 13 RECTIFYING ITS MISTAKE. THE RULE OF PRECEDENT IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND THAT PRINCIPLE IS NOT OBLITERATED BY S. 254(2) OF T HE ACT AND NON-CONSIDERATION OF PRECEDENT BY THE TRIBUNAL CAUS ES 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 RE CTIFIED. (D) FOURTHLY, UNDER S. 254(2) AN OVERSIGHT OF A FACT CA NNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER TH E SECTION. (E) FIFTHLY, FAILURE ON THE PART OF THE TRIBUNAL TO CON SIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTH OUGH 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 WI LL NOT BE A GROUND 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 REOPE N AND REARGUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF S. 254(2) OF THE IT ACT. M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 14 13. KEEPING IN MIND THE ABOVE PARAMETERS, NOW WE PROCEE D TO CONSIDER AND DISPOSE OF THE MISCELLANEOUS APPLICATI ON FILED BY THE ASSESSEE AS UNDER. 14. IN THE INSTANT CASE, THE TRIBUNAL WHILE DECIDING TH E APPEAL OF THE ASSESSEE VIDE ORDER DATED 25.1.2012 CONSIDER ED THE ELABORATE ARGUMENTS ADVANCED BY THE AUTHORISED REPRESENTATIVES OF BOTH THE PARTIES. IT IS ALWAYS THE ENDEAVOUR OF THE TRIBUNAL THAT WHILE PASSING THE ORDER IT CON SIDERS ALL THE ARGUMENTS SUBMITTED BY THE PARTIES. NOW THE ASSESS EES CONTENTION RAISED IN THE MISCELLANEOUS APPLICATION IS THAT THE ARGUMENTS RAISED BY THE ASSESSEE IN SUPPORT OF ITS CONTENTION HAS NOT BEEN CONSIDERED BY THE TRIBUNAL WHILE PASSI NG THE ORDER AND ALSO REASON FOR NOT CONSIDERATION IS ALSO NOT G IVEN BY THE TRIBUNAL WHILE PASSING THE ORDER, HENCE, THERE IS M ISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL WHICH CALLS F OR RECTIFICATION. IN THIS REGARD, WE WOULD LIKE TO ME NTION THAT IN THE ORDER, THE TRIBUNAL FIRST METICULOUSLY MENTIONE D THE ARGUMENTS OF THE LEARNED AR FOR THE ASSESSEE AND TH E POINTS RAISED BY HIM. THEREAFTER, THE TRIBUNAL CONSIDERED THE SAME AND PASSED A SPEAKING ORDER FOR NOT ENTERTAINING TH E CLAIM OF THE ASSESSEE AND REJECTED THE CLAIM OF THE ASSESSEE . 15. FURTHER THE TRIBUNAL CONSIDERED THE ENTIRE FACTS AN D CIRCUMSTANCES OF THE CASE AND DECIDED THE ISSUE. BEING SO, NOW WE CANNOT REVIEW THE SAME ON THE BASIS OF FRESH ARG UMENTS M A NO. 202/HYD/2012 SRI M. BALANARASIMHA REDDY ====================== 15 ADVANCED BY THE LEARNED AR. FURTHER IF THE CONTENT ION OF THE LEARNED COUNSEL FOR THE ASSESSEE IS ACCEPTED THAT S HALL LEAD TO REVIEW OF OUR EARLIER DECISION. 16. WE MAY MENTION HEREIN THAT WE MIGHT HAVE COMMITTED AN ERROR OF JUDGEMENT IN WRONGLY APPLYING/INTERPRETING THE ARGUMENT OF THE AR AS MENTIONED ON THE MATTER, BUT THE ASSESSEE IS FREE TO EXPLORE THE REMEDY AVAILABLE UN DER THE LAW. 17. IN THE RESULT, MA FILED BY THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MARCH, 2013. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 28 TH MARCH, 2013 COPY FORWARDED TO: 1. SHRI M. BALANARSIMHA REDDY, H. NO. 2-12-484/9/A, NAGARJUNA NAGAR COLONY, TARNAKA, HYDERABAD. 2. THE ITO, WARD-11(4), ROOM NO. 547, 'D' BLOCK, 5 TH FLOOR, I.T. TOWERS, AC GUARDS, HYDERABAD. 3. THE CIT(A)-VI, HYDERABAD. 4. THE CIT-V, HYDERABAD. 5. THE DR B BENCH, ITAT, HYDERABAD. TPRAO