M/s Satish Chandra Pandey & Others, Faizabad V. Dy. Commissioner of Income Tax, Faizabad

MA 28/LKW/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3459 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1994-1995
• Appeal Filed On: 12-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIDHI VERMA SINGH
• Assessee Lawyers: K R RASTOGI
• Keywords: Business income
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.28/LKW/2014 [ARISING OUT OF ITA NO.388/LKW/2011] ASSESSMENT YEAR:1994-95 SATISH CHANDRA PANDEY & OTHERS GOSAIGANJ FAIZABAD V. DY. CIT FAIZABAD CIRCLE FAIZABAD PAN:AFWPJ6198M (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. K. R. RASTOGI, C.A. RESPONDENT BY: SMT. NIDHI VERMA SINGH, D.R. DATE OF HEARING: 10 07 2015 DATE OF PRONOUNCEMENT: 03 09 2015 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEHALF OF THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 11.4.2014 ARISING OUT OF I.T.A. NO. 388/LKW/2011 WITH THE SUBMISSION THAT THE TRIBUNAL HAS NOT CONSIDERED THE FACTS PROPERLY AND HAS NOT TAKEN COGNIZANCE OF THE JUDGMENTS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING. 2. IT WAS FURTHER CONTENDED THAT THE TRIBUNAL HAS HELD IN PARA 12 OF ITS ORDER THAT THE RATIO LAID DOWN WITH REGARD TO THE ESTIMATION OF SALE IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA, CANNOT BE APPLIED AND FOLLOWING THE ORDER OF THE ALLAHABAD BENCH OF THE TRIBUNAL IN THE CASE OF AWADHESH PRATAP SINGH ABDUL REHMAN & BROS., BANDA AND THE ORDER DATED 15.1.2003 OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF ACIT, KANPUR VS. M/S UNNAO WINES, KANPUR IN ITA NO.1973/ALLD/1995, HAS :- 2 -: ESTIMATED THE SALE BY APPLYING THE MULTIPLIER OF 2.5 TIMES TO THE LICENCE FEE/BID MONEY, AT RS.3,14,53,860/-; WHEREAS THE FACTS OF THE CASE ARE QUITE IDENTICAL WITH THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA), BUT THE ASSESSING OFFICER HAS NOT FOLLOWED THE SAME AND REPEATED PREVIOUS ASSESSMENT ORDER. IT WAS FURTHER CONTENDED THAT THE TRIBUNAL HAS NOT TAKEN COGNIZANCE OF THE ORDER OF THE TRIBUNAL IN THE CASE OF BALMIKI SINGH VS. ACIT IN I.T.A. NO. 157/LKW/2011, IN WHICH THE TRIBUNAL HAS ESTIMATED THE NET PROFIT ON THE SALES DECLARED BY THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT SINCE THE TRIBUNAL HAS NOT APPRECIATED THE FACTS CORRECTLY, THE ORDER OF THE TRIBUNAL MAY BE RECALLED OR BE MODIFIED BY ESTIMATING THE NET PROFIT RATE @ 4% ON THE DECLARED SALE. 3. THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT THE TRIBUNAL HAS TAKEN COGNIZANCE OF ALL THE RELEVANT JUDGMENTS PLACED BEFORE IT AND ALSO DIRECTION OF THE TRIBUNAL IN ITS ORDER DATED 22.10.2007 DIRECTING THE ASSESSING OFFICER TO RECOMPUTE THE SALE AS WELL AS NET PROFIT IN THE MANNER PRESCRIBED IN THE ORDER. AS PER DIRECTIONS OF THE TRIBUNAL, THE SALES CAN BE ESTIMATED BY MULTIPLYING THE AVERAGE SALE RATE PER LITER TO THE QUANTITY PURCHASED. THE TRIBUNAL, THEREAFTER, HAS LAID DOWN THE FORMULA FOR ESTIMATING THE SALE. IN THE FORMULA ITSELF, THE SALE RATE PER LITER IS FIXED AS Z, THE TOTAL PURCHASE MADE DURING THE YEAR IS X AND THE PURCHASE PRICE PER LITER IS Y, THEN THE TOTAL SALE WILL BE Z X X/Y. WHILE ADJUDICATING THE ISSUE, THE TRIBUNAL HAS ALSO EXAMINED THE JUDGMENT OF THE AGRA BENCH OF THE TRIBUNAL IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA) WHICH WAS DIRECTED TO BE FOLLOWED WHILE ESTIMATING THE SALES AND PROFIT THEREON. IN THAT JUDGMENT IN PARA 10 IT HAS BEEN MENTIONED THAT THE AVERAGE SALE RATE PER LITER HAS TO BE WORKED OUT FROM THE RATES FIXED BY THE STATE EXCISE DEPARTMENT ON THE QUANTITY/PURCHASE AVAILABLE WITH THE ASSESSEE, THEREFORE, THE SALES CAN BE ESTIMATED MULTIPLYING THE AVERAGE SALE RATE PER LITER TO THE QUANTITY PURCHASED. THEREAFTER, THE TRIBUNAL HAS :- 3 -: ALSO LAID DOWN SOME FORMULA IN ORDER TO DETERMINE THE SALES. WHILE ADJUDICATING THE ISSUE IN TERMS OF THE DIRECTION OF THE TRIBUNAL, THE ASSESSING OFFICER HAS CATEGORICALLY MENTIONED THAT IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA), THE AVERAGE SALE RATES WERE FIXED BY THE STATE EXCISE DEPARTMENT, BUT IN THE INSTANT CASE, NO PRICE LIST WAS NOTIFIED BY THE EXCISE DEPARTMENT OF THE STATE GOVERNMENT, THEREFORE, THE TOTAL SALES CANNOT BE WORKED OUT AS PER FORMULA LAID DOWN IN THE ORDER OF THE TRIBUNAL AND ALSO IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA). THE ASSESSING OFFICER ACCORDINGLY HELD THAT THE ORDER OF THE TRIBUNAL IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA) CANNOT BE FOLLOWED. HAVING TAKEN COGNIZANCE OF THESE FACTS, THE TRIBUNAL HAS ALSO GIVEN SIMILAR FINDINGS AND THE TRIBUNAL FURTHER OPINED THAT IF THE SALE CANNOT BE ESTIMATED AS PER FORMULA LAID DOWN BY THE TRIBUNAL IN THE INSTANT CASE AS WELL AS IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA), THE SALE IS TO BE ESTIMATED FOLLOWING THE OTHER ORDER OF THE TRIBUNAL AND THE TRIBUNAL ACCORDINGLY FOLLOWING THE ORDER IN THE CASE OF ACIT VS. M/S UNNAO WINES IN I.T.A. NO. 1973/ALLD/1995, ESTIMATED THE SALE BY APPLYING THE MULTIPLIER OF 2.5 TIMES OF THE LICENCE FEE/BID MONEY. THEREFORE, THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL AND THE APPLICATION FILED BY THE ASSESSEE SEEKING CERTAIN MODIFICATION IN THE ORDER OF THE TRIBUNAL DESERVES TO BE DISMISSED, AS THE ASSESSEE SEEKS REVIEW OF THE ORDER. 4. HAVING CAREFULLY EXAMINED THE MISCELLANEOUS APPLICATION VIS--VIS THE ORDER OF THE TRIBUNAL, WE FIND THAT THE ISSUE BEFORE THE TRIBUNAL WAS WITH REGARD TO THE ESTIMATION OF SALES AND PROFIT. THE TRIBUNAL VIDE ITS ORDER DATED 22.10.2007 DIRECTED THE ASSESSING OFFICER TO COMPUTE THE NET PROFIT FOLLOWING THE FORMULA LAID DOWN IN THE ORDER AND ALSO BY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA). WHILE ADJUDICATING THE ISSUE AS TO WHETHER THE ASSESSING OFFICER HAS MADE A PROPER COMPLIANCE OF THE ORDER OF THE :- 4 -: TRIBUNAL, THE TRIBUNAL HAS EXAMINED THE ORDER OF THE AGRA BENCH OF THE TRIBUNAL IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA), IN WHICH IT WAS HELD BY THE TRIBUNAL THAT AVERAGE SALE RATE PER LITER HAS TO BE WORKED OUT FROM THE RATES FIXED BY THE STATE EXCISE DEPARTMENT. IN THE SAME PARA, THE TRIBUNAL HAS ALSO HELD THAT ESTIMATION OF SALE ON THE BASIS OF BID MONEY WAS ALSO HELD TO BE JUSTIFIED, FOLLOWING THE JUDGMENT OF THE HON'BLE M.P. HIGH COURT IN THE CASE OF BADRI PRASAD BHAGWANDAS & CO VS. CIT, 82 TAXMAN 109. IN THAT JUDGMENT, THE TRIBUNAL HAS NOT CATEGORICALLY HELD AS TO WHAT METHOD IS TO BE APPLIED WHEN SALE RATE AS FIXED BY THE STATE GOVERNMENT ARE NOT AVAILABLE. THE TRIBUNAL HAS LAID DOWN THE FORMULA TO COMPUTE THE SALES. FOR THE SAKE OF REFERENCE, WE EXTRACT PARA 10 OF THE ORDER OF THE TRIBUNAL IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA) IN WHICH THE TRIBUNAL HAS LAID DOWN THE MODALITIES TO WORK OUT SALES AFTER REJECTING THE BOOKS OF ACCOUNT:- 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER REJECTING OF BOOKS OF ACCOUNT, THE ASSESSING OFFICER HAS TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT IN THE MANNER LAID DOWN UNDER SECTION 144 OF THE ACT. HOWEVER, IN THE CASE BEFORE US, THE ASSESSING OFFICER HAS ESTIMATED THE SALES BY APPLYING 2.5 TIMES OF THE BID MONEY RELYING ON THE DECISION OF HON'BLE M.P. HIGH COURT IN THE CASE OF BADRI PRASAD BHAGWAN DAS & CO. (SUPRA). IN THIS CASE, THE PURCHASE PRICE OF THE LIQUOR WAS 11.80 PER LITRE AND THE SALES WERE AT RS.30/- PER LITER. THE RATIO OF SALES TO PURCHASE WAS 2.5. THUS THE ESTIMATION OF SALES WAS MADE BY MULTIPLYING 2.5 TO THE BID MONEY. THUS, THE ESTIMATION OF SALES ON THE BASIS OF BID MONEY WAS HELD TO BE JUSTIFIED. IN THE CASE BEFORE US, THE INFORMATION REGARDING THE PURCHASE AND SALES RATES AS FIXED BY THE STATE GOVT. ARE NOT AVAILABLE. THE RATIO OF DECISION OF HON'BLE M.P. HIGH COURT CAN BE APPLIED FOR ESTIMATION OF SALES ON THE BASIS OF PURCHASE AND SALES PRICE FIXED BY THE STATE GOVERNMENT. :- 5 -: THE ASSESSEE HAD PURCHASED LIQUOR ON BULK RATE BASIS WHEREAS THE SALES ARE MADE ON RETAIL BASIS IN PACKING OF BOTTLES, BOTTLE, BOTTLE AND POUCH OF 100ML. THE SALES RATES ARE DIFFERENT FOR EACH PACKING. THE AVERAGE SALE RATE PER LITER HAS TO BE WORKED OUT FROM THE RATES FIXED BY THE STATE EXCISE DEPARTMENT. THE QUANTITY OF LIQUOR PURCHASED IS AVAILABLE WITH THE ASSESSEE. THE SALES CAN BE ESTIMATED BY MULTIPLYING AVERAGE SALES RATE PER LITER TO THE QUANTITY PURCHASED. THE SALES CAN ALSO BE ESTIMATED FROM THE RATIO OF SALE PRICE PER LITER TO PURCHASE PRICE PER LITER AND MULTIPLYING AMOUNT OF TOTAL PURCHASES EXCLUDING ALL OVERHEADS. MATHEMATICALLY IT CAN BE ARRIVED AS UNDER: IN OTHER WORDS SALES CAN BE ESTIMATED BY MULTIPLYING THE FIGURE DERIVED FROM SALES/LITER RATE FIXED BY THE GOVT. DIVIDED BY THE PURCHASE RATE PER LITER TO THE BID MONEY. MATHEMATICALLY IT CAN BE ARRIVED AS UNDER: LET THE TOTAL PURCHASE MADE DURING THE YEAR ARE X AND PURCHASE PRICE PER LITER IS Y AND SALE RATE PER LITER FIXED IS Z. THE SALES WILL BE = Z X X . Y IT IS FURTHER CLARIFIED THAT THE METHOD GIVES THE CORRECT ESTIMATION OF SALES SHOULD BE ADOPTED. 5. SIMILAR DIRECTIONS, FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA), WERE GIVEN BY THE TRIBUNAL IN THE INSTANT CASE WHILE RESTORING THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO ESTIMATE THE SALES AND THE NET PROFIT. 6. FROM THE PERUSAL OF THE AFORESAID ORDER OF THE TRIBUNAL, IT HAS BECOME ABUNDANTLY CLEAR THAT THE SALES ARE TO BE WORKED OUT ON THE BASIS OF SALE RATE FIXED BY THE STATE GOVT. OR THE EXCISE DEPARTMENT AS PER :- 6 -: AFORESAID ORDERS. BUT IN THE AFORESAID ORDER, NO FORMULA WAS LAID DOWN TO WORK OUT THE SALES IN A CASE WHERE SALE RATES ARE NOT FIXED EITHER BY THE STATE GOVERNMENT OR THE EXCISE DEPARTMENT. UNDISPUTEDLY, IN THE INSTANT CASE, THE SALE RATES ARE NEITHER NOTIFIED BY THE STATE GOVERNMENT NOR FIXED BY THE EXCISE DEPARTMENT. THEREFORE, THE TRIBUNAL HAS RIGHTLY HELD THAT THE FORMULA LAID DOWN BY THE TRIBUNAL IN THE INSTANT CASE, FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA), CANNOT BE APPLIED IN THE INSTANT CASE. THEREFORE, THE DIRECTION ISSUED BY THE TRIBUNAL COULD NOT BE APPLIED WITH. BUT IN THAT CASE, THE SALES ARE TO BE ESTIMATED AND THE ASSESSING OFFICER HAS ESTIMATED THE SALES BY APPLYING THE MULTIPLIER AND THE TRIBUNAL HAVING FOLLOWED THE ORDER OF THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF ACIT, KANPUR VS. M/S UNNAO WINES, KANPUR (SUPRA), ESTIMATED THE SALES BY APPLYING THE MULTIPLIER OF 2.5 TIMES OF LICENCE FEE/BID MONEY OF RS.3,14,53,860/-. THEREFORE, WE ARE OF THE VIEW THAT THE TRIBUNAL HAS CORRECTLY APPLIED THE FORMULA IN THE LIGHT OF THE ORDERS OF THE TRIBUNAL AND ALSO THE JUDGMENT OF THE HON'BLE M.P. HIGH COURT IN THE CASE OF BADRI PRASAD BHAGWANDAS & CO VS. CIT (SUPRA), OF WHICH REFERENCE WAS MADE IN THE CASE OF GOVIND PD. KRISHAN KUMAR VS. JT. CIT (SPL.), AGRA (SUPRA). SINCE THE TRIBUNAL HAS ADJUDICATED THE ISSUE IN THE LIGHT OF THE FACTS AVAILABLE BEFORE IT, NO ERROR AS SUGGESTED BY THE LD. COUNSEL FOR THE ASSESSEE, IS CREPT IN THE ORDER OF THE TRIBUNAL. 7. MOREOVER, THE SCOPE OF PROVISIONS OF SECTION 254(2) IS VERY LIMITED AND ONLY THOSE ERRORS WHICH ARE APPARENT OR ARITHMETICAL CAN ONLY BE RECTIFIED. THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT HAS BEEN REPEATEDLY EXAMINED BY THE HON'BLE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT THE TRIBUNAL CAN RECTIFY ONLY THOSE MISTAKES WHICH ARE ARITHMETICAL OR CLERICAL OR APPARENT IN ITS ORDER. THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER IN THE GRAB OF RECTIFICATION. IT WAS ALSO HELD THAT IF THE TRIBUNAL COMMITS AN ERROR OF JUDGEMENT, THAT ERROR CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT AS THE :- 7 -: TRIBUNAL IS NOT EMPOWERED BY THE STATUTE TO REVIEW ITS OWN ORDER. IN THE CASE OF CIT VS. VARDHMAN SPINNING; 226 ITR 296 THEIR LORDSHIPS OF THE PUNJAB AND HARYANA HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE APPELLATE TRIBUNAL IS CREATION OF STATUTES AND IT CAN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. THE ONLY POWER CONFERRED ON THE TRIBUNAL U/S 254(2) OF THE I.T. ACT, 1961 IS TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED BY THE AUTHORITIES UNDER THE ACT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOSED INHERENT RIGHTS. U/S 254(1) OF THE ACT, THE APPELLATE TRIBUNAL, AFTER HEARING THE CONTESTING PARTIES, CAN PASS SUCH ORDER AS IT DEEMS FIT. SEC. 254(2) OF THE ACT SPECIFICALLY EMPOWERS THE APPELLATE TRIBUNAL AT ANY TIME WITHIN FOUR YEARS OF THE DATE OF AN ORDER TO AMEND ANY ORDER PASSED BY IT U/S 254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD EITHER SUO MOTO OR ON AN APPLICATION MADE . WHAT CAN BE RECTIFIED UNDER THIS SECTION IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE, THEN IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD. 8. IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD INDUSTRIES (P) LTD., 226 ITR 34 THEIR LORDSHIPS OF CALCUTTA HIGH COURT HAVE EXPRESSED SIMILAR OBSERVATIONS AFTER HOLDING THAT UNDER SECTION 254(2) OF THE INCOME- TAX ACT, AN ORDER, WHICH HAS BEEN PASSED BY THE TRIBUNAL REACHES FINALITY THE MOMENT THE SAME IS PASSED; CANNOT BE TOUCHED THEREAFTER. BY SECTION 254(2) OF THE ACT, THE TRIBUNAL, HOWEVER, HAS BEEN AUTHORIZED TO RECTIFY MISTAKES IN ITS ORDERS, WHICH ARE APPARENT ON THE FACE OF THE RECORDS. THE EXPRESSION MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EITHER CLERICAL OR GRAMMATICAL OR ARITHMETICAL OR OF LIKE NATURE, WHICH CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO RE-ARGUE THE MATTER OR TO RE-APPRAISE THE FACT AS APPEARING FROM THE RECORDS. IN ANOTHER CASE CIT VS. GOLAL CHAND AGARWAL; 202 ITR 14 THEIR LORDSHIPS OF CALCUTTA HIGH COURT HAVE ALSO :- 8 -: HELD THAT SECTION 254(2) OF THE INCOME-TAX ACT, 1961 EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED U/S 254(1) TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. IF IN 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 U/S 254(2) WILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF THE FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIGHT, AT THE WORST, LEAD TO PERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENCE PROCEEDINGS U/S 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 EXERCISE THE POWER. 9. THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. ITAT; 143 CTR 446 HAS HELD THAT SUB-SECTION (1) OF SECTION 254 CONFERS AMPLE POWERS ON THE TRIBUNAL TO PASS SUCH ORDERS IN ANY APPEAL FILED BEFORE IT AS IT THINKS FIT. SUB-SECTION (2) OF SECTION 254 POSTULATES THAT THE TRIBUNAL MAY AMEND ANY ORDER PASSED BY IT UNDER SUB-SEC. (1) OF SECTION 254 WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. THE POWER OF THE TRIBUNAL CONFERRED BY SUB-SECTION (2) OF SECTION 254 FOR RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD CANNOT BE EXERCISED BY THE TRIBUNAL TO RECALL ANY ORDER PASSED BY IT UNDER SECTION 254(2). FURTHER, REVIEWING AND RECALLING AN ORDER IS ONE THING AND RECTIFYING A MISTAKE IN THE ORDER WHICH IS APPARENT FROM THE RECORD IS QUITE ANOTHER. IN THE ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW BY TRIBUNAL, THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED OR REVIEWED UNDER SECTION 254(2) OF THE ACT. THE PROVISIONS OF SECTION 254 WERE ALSO EXAMINED BY THE HONBLE HIGH COURT OF M.P. IN THE CASE OF PRAKASH CHAND MEHTA VS. CIT; 220 ITR 277 IN WHICH THEIR LORDSHIP HAVE HELD THAT SCOPE OF SECTION 254(2) OF THE INCOME-TAX ACT IS VERY LIMITED AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. :- 9 -: 10. THEIR LORDSHIPS OF THE APEX COURT IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHERS; 82 ITR 50 (SC) HAVE HELD THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR LORDSHIPS HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING HIM IN THE WITNESS BOX, THE AUTHORITIES SHOULD NOT ACT UPON THAT STATEMENT WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE THE WITNESS, BUT THAT IS A MATTER NOT FOR RECTIFICATION BUT IT IS A MATTER RELATING TO THE MERITS OF THE CASE AS TO WHETHER THE TRIBUNAL HAS GONE WRONG IN NOT CONSIDERING THE AFFIDAVIT OF A PARTICULAR PERSON AND HAS ACTED UPON THE STATEMENT OF THE SAME PERSON WHICH WAS RECORDED BY THE ITO WITHOUT BEING PERMITTED TO CROSS EXAMINE BY THE ASSESSEE. THIS IS NOT A MATTER IN WHICH THE APPARENT ERROR IS INVOLVED BUT IT IS A MATTER MORE OF MERIT AND CANNOT BE RECTIFIED WITHIN THE SCOPE OF RECTIFICATION. THE POWERS OF THE TRIBUNAL WHILE MAKING A RECTIFICATION WERE AGAIN EXAMINED BY THE APEX COURT IN THE CASE OF CIT VS. HERO CYCLES PVT. LTD.; 228 ITR 463 IN WHICH THEIR LORDSHIPS HAVE HELD THAT RECTIFICATION CAN ONLY BE MADE WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM RECORD. RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. MOREOVER, A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS MISTAKE APPARENT FROM RECORD. IN THE CASE OF ITO VS. ITAT; 229 ITR 651 THEIR LORDSHIPS OF PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATION AFTER HOLDING THAT SECTION 254(2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFYING A MISTAKE FROM RECORD. HOWEVER, SECTION 254(2) DOES NOT AUTHORIZE THE TRIBUNAL TO REVIEW ITS ORDER OR TO SIT IN APPEAL OVER ITS EARLIER ORDER. IF IT IS DONE, IT WOULD AMOUNT TO AN AMENDMENT OF AN EARLIER ORDER WITH A VIEW TO RECTIFY A MISTAKE APPARENT FROM RECORD, BUT IT :- 10 -: WOULD BE AN ORDER PASSED ON REAPPRAISAL OF THE MATERIAL FACTS AND CIRCUMSTANCES AND ON A FRESH APPLICATION OF THE LEGAL POSITION WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. 11. IN THE CASE OF MS. DEEKSHA SURI VS. ITAT; 232 ITR 395 THEIR LORDSHIPS OF DELHI HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE INCOME- TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT BEEN VESTED WITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGEMENTS OR ORDERS. THE GROUNDS ON WHICH THE COURTS MAY OPEN OR VACATE THEIR JUDGEMENTS ARE GENERALLY MATTERS WHICH RENDER THE JUDGEMENT VOID OR WHICH ARE SPECIFIED IN THE STATUTES AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961 IS CLEAR. THE FOUNDATION FOR THE EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. 12. SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY THE GUWAHATI HIGH COURT IN THE CASE OF CIT VS. PRAHLAD RAI TODI 251 ITR 833 BY HOLDING THAT A BARE LOOK AT SECTION 254(2) WILL SHOW THAT THIS SECTION GIVES THE POWER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND NOT TO AMEND ANY ORDER PASSED BY IT AND TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSING OFFICER OR THE ASSESSEE. SO, WHEN WE SPEAK OF AMENDMENT OR RECTIFYING THE MISTAKE THE EARLIER ORDER CAN NEVER BE RECALLED BY THE TRIBUNAL. THE EARLIER ORDER MUST HOLD THE FIELD AND THE MISTAKE CAN BE RECTIFIED OR AMENDED CAN BE MADE TO THE ORDER. THE TRIBUNAL CANNOT, IN LAW AND FACTS, RECALL AND DESTROY ITS FINAL ORDER AS A WHOLE WITH A VIEW TO :- 11 -: RECTIFY THE SAME ORDER UNDER SECTION 254(2) OF THE ACT. THE ACTION OF THE TRIBUNAL ACTUALLY AMOUNTS TO REVIEW OF ITS EARLIER ORDER AND THAT POWER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. 13. WE, THEREFORE, FIND NO MERIT IN THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE, AS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL IS POINTED OUT. THE LD. COUNSEL FOR THE ASSESSEE HAS TRIED TO DISPUTE THE FINDINGS OF THE TRIBUNAL AND SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT AND WE ACCORDINGLY REJECT THE MISCELLANEOUS APPLICATION. 14. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:3 RD SEPTEMBER, 2015 JJ:2508 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR