ACIT, CHENNAI V. M/s. ICL Securities Limited, CHENNAI

MA 22/CHNY/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5986 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-01-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-01-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 03-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: S SRIDHAR
• Keywords: Rectification of order; Cost of acquisition; Wholly owned subsidiary

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH D BEFORE SHRI U.B.S BEDI, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER M.P. NO. 22/MDS/2010 I.T.A. NO. 2609/MDS/2005 & 2228/MDS/2005 [ASSESSMENT YEAR 2002-03] THE A.C.I.T COMPANY CIRCLE II(3) CHENNAI VS. M/S ICL SECURITIES LIMITED DHUN BUILDING, 27 ANNA SALAI CHENNAI 600 002. [PAN AKDPK 2400 K] (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI B SRINIVAS ASSESSEE BY : SHRI S. SRIDHAR O R D E R PER U.B.S. BEDI. J.M, : BY MEANS OF THIS M.P., THE DEPARTMENT SEEKS TO GET RECTIFIED THE ORDER OF THE TRIBUNAL DATED 18.10.200 7 AND MP NO. 22/MDS/2010 :- 2 -: 28.4.2009 IN ITA NOS. 2609/MDS/2010 & 2228/MDS/2005 FOR ASSESSMENT YEAR 2002-03 ON THE FOLLOWING THREE ISSU ES: 1. THAT CONSEQUENTIAL ORDER PASSED DOES NOT MAKE MENTION ABOUT THE APPEAL OF THE REVENUE AS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND INSTEAD IT STIPULATES THAT THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES IN THE RESULT AT PARA 3 2. THAT THE ITAT HELD INTEREST ON AMOUNT BORROWED O N ACQUISITION OF SHARES OF SVCL SHOULD BE ALLOWED AS PART OF COST OF ACQUISITION. SO, IT WAS SUBMITTED T HAT INTEREST CLAIMED BY THE ASSESSEE ON TOTAL COST OF T HE SHARES INCLUDING THE AMOUNT OF RS. 24,24,50,000/- ALLEGEDLY PAID AS NON-COMPETE FEE. THE ITAT FOLLOWING THE ORDER OF THE THIRD MEMBER HAS HELD THAT THE AMOUNT OF RS. 24,24,50,000/- WILL NOT FORM PART OF THE COST OF ACQUISITION. IT FOLLOWS THAT INTEREST PAYABLE AND CAPITALIZED TO THE EXTENT IT RELATES TO THE AMOUNT OF RS. 24,24,50,000/- SHOULD MP NO. 22/MDS/2010 :- 3 -: ALSO BE DISALLOWED. IT WAS PLEADED THAT THE ITAT MAY SET ASIDE THE QUANTIFICATION OF INTEREST PAYABL E AND THE DETERMINATION OF COST OF ACQUISITION TO THE ASSESSING OFFICER AS THE DEDUCTION OF ENTIRE COST I S NOT IN CONSONANCE WITH THE ITATS DECISION ON THE COST OF ACQUISITION OF THE SHARES. 3. IT IS SUBMITTED THAT THE ASSESSEE HAD ALLEGEDLY ACQUIRED 1,26,94,805 SHARES OF SVCL FOR RS. 123,30,13,619/- WHICH INCLUDES THE NON COMPETE FEE OF RS. 24,24,50,000/-. THE COST OF PER SHARE COMES TO RS. 97.12 CRORES AND EVEN AFTER EXCLUDING THE NON COMPETE FEE OF RS. 24.25 CRORES, THE COST WORKS OUT TO RS. 78.03 PER SHARE WHICH IS COMPARATIVELY HIGH WHEN COMPARED TO THE COST OF ACQUISITION OF THE SHARES BY THE INDIA CEMENTS LTD CONSIDERING THE FAC T THAT THE SHARES WERE ACQUIRED ALMOST SIMULTANEOUSLY IN OCTOBER 1999. THE INDIA CEMENTS LIMITED [OF WHICH THE ASSESSEE IS A WHOLLY OWNED SUBSIDIARY] HA D ACQUIRED THE SHARES OF SVCL FROM NINE COMPANIES OF MP NO. 22/MDS/2010 :- 4 -: B.V. RAJU GROUP @ RS. 12.50 PER SHARE. THE TOTAL NUMBER OF SHARES PURCHASED WAS 93,68,700 AND THE COST WAS RS. 11,71,07,500/- [RS. 12,74,45,179/- INCLUDING TRANSFER EXPENSES]. THE BACKGROUND TO TH E ACQUISITION OF THE SHARES AS WELL AS THE LITIGATION S INVOLVED HAVE BEEN DISCUSSED BY THE HONBLE THIRD MEMBER IN THE ORDER CITED ABOVE. IT IS PRAYED THAT THE ITAT MAY SET ASIDE THE ISSUE OF DETERMINATION O F COST OF ACQUISITION TO CONSIDER OTHER COSTS PASSED ON TO THE ASSESSEE BY THE HOLDING COMPANY WHICH MAY NOT RELATE TO THE ASSESSEES PURPOSE OF INVESTMENT IN SHARES. 3. THE LD. D.R. REITERATED HIS SUBMISSIONS AS MADE I N THE APPLICATION AND PLEADED FOR CARRYING OUT NECESSARY RECTIFICATION WITH RESPECT TO ALL THE THREE ISSUES WHEREAS THE LD . A.R., WHILE NOT OBJECTING TO THE ADDING OF THE WORDS PARTLY AL LOWED IN PARA 3 OF THE CONSEQUENTIAL ORDER DATED 28.4.2009, ASSESSEES COUNSEL PLEADED THAT NO RECTIFICATION ON OTHER POIN TS AS RAISED MP NO. 22/MDS/2010 :- 5 -: BY THE DEPARTMENT IS PERMISSIBLE AND APPLICATION OF THE DEPARTMENT ON THESE COUNTS SHOULD BE DISMISSED. 4. THE LD. D.R. IN ORDER TO CONTROVERT THE SUBMISSIO N OF THE LD. A.R. SUBMITTED THAT SO FAR AS THE SECOND ISSUE IS CONCERNED, THERE IS GOOD GROUND OF POINTING OUT MISTAKE FOR CA RRYING OUT RECTIFICATION AND SO FAR AS THIRD ISSUE IS CONCERNE D, HE SIMPLY RELIED UPON GROUND NO. 3, AS RAISED IN THE APPLICAT ION. 5. WE HAVE HEARD BOTH THE SIDES AND CONSIDERED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE RESPECTIV E ORDERS OF THE REGULAR BENCH, THIRD MEMBER ORDER AS WELL AS TH E CONSEQUENTIAL ORDER PASSED BY THE BENCH. 6. AFTER CAREFUL CONSIDERATION AND TAKING INTO CONS PECTUS OF THE ENTIRE MATERIAL ON RECORD, WE ARE INCLINED TO A CCEPT THE FIRST ISSUE OF INSERTING THE WORDS PARTLY IN FIRST LINE OF PARA 3 OF CONSEQUENTIAL ORDER DATED 28.4.2009 TO READ AS APP EAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES A ND DIRECT ACCORDINGLY. MP NO. 22/MDS/2010 :- 6 -: 7. AS REGARDS SECOND ISSUE, WE HAVE CAREFULLY CONSI DERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL ON R ECORD AND FIND THAT SO FAR AS INTEREST CLAIMED BY THE ASSESSEE ON TOTAL COST OF SHARES INCLUDING THE AMOUNT OF RS. 24,24,50,000/- AL LEGEDLY PAID AS NON-COMPETE FEE IS CONCERNED, THE ITAT, ON THE BASIS OF MAJORITY OPINION, HAS HELD THAT THE AMOUNT OF RS. 24,24,50,000/- WILL NOT FORM PART OF COST OF ACQUIS ITION AND DEPARTMENT WITHOUT POINTING OUT ANY APPARENT MISTAK E WANTS DIRECTION IN RECTIFICATORY PROCEEDINGS ABOUT SOMETH ING WHICH HAS NOT BEEN DECIDED BUT WHICH WILL FOLLOW AND AT THE M OST BE SAID TO COULD BE AFTER EFFECT OF THE DECISION AND IN OUR CONSIDERED OPINION, SECTION 254(2) OF THE I.T. ACT DOES NOT AU THORIZE FOR DOING THE SAME BECAUSE IT WOULD AMOUNT TO REVIEWING THE ORDER WHICH IS OTHERWISE NOT PERMISSIBLE IN AS MUCH AS A BARE LOOK AT SECTION 254(2) OF THE ACT MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT FROM THE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APPLICATION OF SECTION 254(2), A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER TO RECT IFY THE MISTAKE, HOWEVER, DOES NOT COVER CASES WHERE A REVI SION OR REVIEW OF THE ORDER IS INTENDED. MISTAKE MEANS TO TAKE OR MP NO. 22/MDS/2010 :- 7 -: UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERRO R IN INTERPRETING, IT IS AN ERROR; A FAULT, A MISUNDERST ANDING, A MISCONCEPTION. APPARENT MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELA BORATION. THE LANGUAGE USED IN SECTION 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, THE AMENDMEN T OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGI NALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PE RMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2). FURTHER, WH ERE AN ERROR IS FAR FROM SELF-EVIDENT, IT CEASES TO BE AN APPARE NT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTI FIED UNDER SECTION 254(2) IS NOT CONFINED TO CLERICAL OR ARITH METICAL MISTAKES. ON THE OTHER HAND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED BY TH E SUPREME COURT IN MASTER CONSTRUCTION CO. (P.) LTD. V. STATE OF ORISSA [1966] 17 STC 360, AN ERROR WHICH IS APPARENT ON TH E FACE OF THE MP NO. 22/MDS/2010 :- 8 -: RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DE PENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FA CT OR LAW. A SIMILAR VIEW WAS ALSO EXPRESSED IN SATYANARAYAN LAXMINARAYAN HEGDE V. MALLIKARJUN BHAVANAPPA TIRUMALE AIR 1960 SC 137. IT IS TO BE NOTED THAT THE LANGUAGE USED IN ORDER 47, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 IS DIFFERENT FROM THE LANGUAGE USED IN SECTION 254(2) OF THE ACT. POWER IS GIVEN T O VARIOUS AUTHORITIES TO RECTIFY ANY MISTAKE APPARENT FROM T HE RECORD IS UNDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECORD. MISTAKE IS AN ORDINARY WORD, BUT IN TA XATION LAWS, IT HAS A SPECIAL SIGNIFICANCE. IT IS NOT AN ARITHMETIC AL OR CLERICAL ERROR ALONE THAT COMES WITHIN ITS PURVIEW. IT COMPR EHENDS ERRORS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE, ARE DISCERNED. THE WORD MISTA KE IS INHERENTLY INDEFINITE IN SCOPE, AS WHAT MAY BE A MI STAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERN IBLE. IT IS SOMETHING WHICH A DULY AND JUDICIOUSLY INSTRUCTED M IND CAN FIND OUT FROM THE RECORD. IN ORDER TO ATTRACT THE POWER TO RECTIFY MP NO. 22/MDS/2010 :- 9 -: UNDER SECTION 254(2) IT IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO BE RECTIFIED. THE M ISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM THE RECORD. A D ECISION ON THE DEBATABLE POINT OF LAW OR UNDISPUTED QUESTION O F FACT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANI NG OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE SO EX FACIE AND IT IS IN CAPABLE OF ARGUMENT OR DEBATE. IT IS THEREFORE, FOLLOWS THAT A DECISION ON A DEBATABLE P OINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNOT BE CORRECTED BY WAY OF RE CTIFICATION. 7.1 THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAK E IN THE ORDER WITH REGARD TO THIS ISSUE NOR THE SAME HAS BE EN NOTICED BY THIS BENCH AND IN CASE APPLICATION OF THE ASSESSEE IS ACCEPTED, AS RIGHTLY POINTED OUT BY THE LD. DR, THAT WOULD AMO UNT TO REVIEW OF THE ORDER OF THE TRIBUNAL ON THIS POINT W HICH IS NOT PERMISSIBLE UNDER THE LAW. UNDER RECTIFICATION PROC EEDINGS, THE TRIBUNAL IS NOT EMPOWERED TO REVIEW THE ORDER PASSE D EARLIER AND SUPPORT CAN BE TAKEN FROM THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS GOKUL CHA ND AGARWAL MP NO. 22/MDS/2010 :- 10 - : (202 ITR 14), WHICH HAS DEALT WITH THE SIMILAR POINT AND OPINED AS UNDER: SECTION 254(2) OF THE INCOME TAX ACT, 1961, EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED UNDER SECTION 254(1) TO RECTIFY ANY MISTAKE APPAREN T FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. THE JURISDICTION OF THE TRIBUNAL TO AMEND ITS ORDER THUS DEPENDS ON WHETHER OR NOT THERE IS A MISTAKE APPARENT FROM THE RECORD. IF, I N ITS ORDER, THERE IS NO MISTAKE WHICH IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, THE EXERCISE OF THE JURISDICTION BY THE TRIBUNAL UNDER SECTION 254( 2) WILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF A FA CT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIGHT, AT THE WORST, LEA D TO PERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254( 2) BUT A REFERENCE PROCEEDING UNDER SECTION 256. THE NORMAL RULE IS THAT THE REMEDY BY WAY OF REVIEW IS A CREATURE OF THE STATUTE AND, UNLESS CLOTHED WITH SUCH POWER BY THE STATUTE, NO AUTHORITY CAN EXERCIS E THE POWER. REVIEW PROCEEDINGS IMPLY PROCEEDINGS WHERE A PARTY, AS OF RIGHT, CAN APPLY FOR RECONSIDERATION OF THE MATTER, ALREADY DECIDED UPON, AFTER A FRESH HEARING ON THE MERITS O THE CONTROVERSY BETWEEN THE PARTIES. SUCH REMEDY IS CERTAINLY NOT PROVIDED BY THE INCOME TAX ACT, 1961, IN RESPECT OF PROCEEDINGS BEFORE THE TRIBUNAL. 7.3 IN SIMILAR SITUATION, WHILE DEALING WITH THE RE CTIFICATION, THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE O F CIT AND ANOR VS. I.T.A.T AND ANOR (206 ITR 126 HAS HELD AS U NDER: THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF I TS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF MP NO. 22/MDS/2010 :- 11 - : THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIFICALLY CONFERRED ON TH E TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATI C THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED, IT CANNOT BE INFERRED. UNL ESS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE , THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. 7.4 FURTHER, THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS KARAM CHAND THAPAR AND BR. P.LTD. (176 ITR 535) HAS HELD AS UNDER: APPELLATE TRIBUNAL DUTY TO CONSIDER CUMULATIVE EFFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS NO NEED TO STATE SO IN APPELLATE ORDER SPECIFICALLY INCOME TAX ACT, 1961, SEC. 254 FURTHER IT WAS HELD AS UNDER: IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS MP NO. 22/MDS/2010 :- 12 - : JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKE N INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LI ABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE . IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGEMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT , DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. SIMILARLY THE BOMBAY HIGH COURT IN THE CASE OF CIT- VS- RAMESH ELECTRIC AND TRADING CO. (203 ITR 497) .IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY AN Y MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD.. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED S AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINION. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENTS MP NO. 22/MDS/2010 :- 13 - : 7.5 WE ALSO DRAW SUPPORT HERE FROM HONBLE MADRAS HIGH COURT DECISION IN T.C.(A) NO. 156 OF 2006 DATED 21.08.200 7 IN THE CASE OF CIT VS. TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. WHEREIN THE HONBLE HIGH COURT HELD AS UNDER:- THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHEN THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING ITS MIND AGAINST THE ASSESSEE, THE SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF THE AC T. THERE WAS NO NECESSITY WHATSOEVER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER T HE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL, WE COULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER A S TO HOW THE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASONS. THERE IS NO APPARENT ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHORITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PETITION IN THE NAME OF REVIEWING ITS OWN ORDER. IN THE PRESENT CASE, IN THE GUISE OF RECTIFICATION , THE TRIBUNAL REVIEWED ITS EARLIER ORDER AND ALLOWED THE MISCELLANEOUS PETITION WHICH IS NOT IN ACCORDANCE WITH LAW. SECTION 254(2) OF THE ACT DOE S NOT CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAKES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION O F SECTION 254(2) IS LIMITED AND NARROW. IT IS RESTRI CTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE ORDER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORDER IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. ONLY GLARING AND ANY MISTAKE APPARENT ON THE FACE OF THE MP NO. 22/MDS/2010 :- 14 - : RECORD ALONE CAN BE RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. 7.6 FURTHER, WE PLACE RELIANCE UPON HONBLE DELHI H IGH COURT EXPOSITION ON THE SCOPE OF RECTIFICATION U/S 254(2) AS REPORTED IN THE CASE OF RAS BIHARI BANSAL VS. COMMISSIONER OF IN COME TAX (2007) 293 ITR 365:- SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES THE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPAREN T MISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THE SECTION. 7.7 THEREFORE, IN VIEW OF THE FACTS, CIRCUMSTANCES, IN THE LIGHT OF RATIO OF DECISIONS CITED AND DISCUSSION AS HELD ABOVE, WE DO NOT FIND ANY SUBSTANCE IN THE PETITION OF THE ASSES SEE ON THE POINT RAISED BY THE DEPARTMENT AND DISMISS THE SECO ND ISSUE BEING DEVOID OF ANY MERITS. MP NO. 22/MDS/2010 :- 15 - : 8. AS REGARDS THIRD ISSUE, IN THE ABSENCE OF ANY AR GUMENT OF THE DEPARTMENT HAVING BEEN RAISED, WE DO NOT FIND A NY APPARENT MISTAKE IN THE ORDER SO FAR AS THIS ISSUE IS CONCER NED, THEREFORE, WE DISMISS THIRD ISSUE RAISED IN THE M.P. BEING WIT HOUT ANY MERITS. 9. THE AMENDMENTS MADE WITH REGARD TO FIRST ISSUE, AS IN PARA 6 ABOVE, SHALL AND SHALL ALWAYS BE DEEMED TO H AVE BEEN EFFECTIVE FROM THE DATE OF ORDER I.E. 28.4.2009. 10. AS A RESULT, APPLICATION OF THE REVENUE GETS PAR TLY ACCEPTED. PRONOUNCED ON 21.01.2011 SD/- SD/- ( ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER CHENNAI : 21 ST JANUARY, 2011 VL. COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR