M/s. Kalsar Educational Charitable Trust, CHENNAI V. ADIT, CHENNAI

MA 291/CHNY/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5987 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-01-2011
• Assessment Year: misc
• Appeal Filed On: 29-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: S SRIDHAR
• Keywords: Charitable institution; Condonation of delay
• Section: 12AA

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI B BENCH, CHENNAI. (BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. ABRAHAM P. GE ORGE, A.M.) M.A. NO. 291/MDS/2009 [IN I.T.A. NO. 1460/MDS/2008] KALSAR EDUCATIONAL CHARITABLE TRUST PLOT NO. 875, J-1, 17 TH MAIN ROAD ANNA NAGAR, CHENNAI 600 040. [PAN: AAATK 4940 X] VS. THE ASSISTANT DIRECTOR OF INCOME TAX OFFICER, EXEMPTION (III), CHENNAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. SRIDHAR REVENUE BY : SHRI B. SRINIVAS ORDER PER U.B.S. BEDI, J.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION, THE AS SESSEE SEEKS TO GET RECTIFIED THE ORDER OF THE TRIBUNAL DATED 17.04 .2009 IN I.T.A. NOS. 1460/MDS/2008 BY MAKING THE FOLLOWING PRAYER: IT IS SUBMITTED THAT THERE IS AN INADVERTENT MISTAK E COMMITTED BY THE BENCH IN THE SAID PARA $ HEREIN BEFORE EXTRACTE D, CAUSING IMPLEMENTATION PROBLEM. WHILE RESTORING THE MATER BACK TO THE FILE OF THE DIRECTOR FOR PASSING A SPEAKING ORDER, THE BENCH HAD HELD THAT THE SPEAKING ORDER SHOULD BE PASSED FOR GI VING REASONS FOR NOT CONDONING DELAY. IT IS SUBMITTED THAT IN THE RE STORATION M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 2 PROCEEDINGS THE DIRECTOR HAS TO GIVE REASONS ONLY F OR NOT CONDONING THE DELAY AFTER GIVING OPPORTUNITY TO THE PETITIONER /ASSESSEE. IT IS SUBMITTED IN THIS REGARD THAT THE INTENTION AN D THE PURPOSE OF RESTORATION ON THE WHOLE AND COMBINED READING OF TH E IMPUGNED ORDER ALONG WITH THE EARLIER ORDER WAS NOT TO CONDO NE THE DELAY IN FILING THE APPLICATION FOR REGISTRATION U/S 12AA OF THE ACT AND ON THE CONTRARY FOR PASSING SPEAKING ORDER IN CONSIDER ATION OF THE REASONS GIVEN FOR CONDONATION OF DELAY IN FILING SUC H APPLICATION FOR REGISTRATION. THEREFORE, IT IS PRAYED THAT THE WOR DS GIVING REASONS FOR CONDONING THE DELAY MAY BE DELETED IN ORDER TO HAVE PROPER UNDERSTANDING OF THE BENCHS ORDER IN RESTORING THE ENTIRE ISSUE OF REGISTRATION SOUGHT FOR U/S 12AA OF THE ACT FOR DE N OVO CONSIDERATION AT THE LEVEL OF THE DIR [EXEMPTIONS], CHENNAI AND PASS SUCH OTHER FURTHER ORDER/DIRECTION/MODIFICATION /RECTIFICATION TO BE REQUIRED FOR SMOOTH AND PROPER IMPLEMENTATION OF THE BENCHS ORDER(S) IN THE INTEREST OF JUSTICE. 2. AT THE TIME OF HEARING OF THE APPLICATION, THE L D. COUNSEL FOR THE ASSESSEE WHILE REITERATING THE SUBMISSIONS AS MADE IN THE APPLICATION WITH THE PRAYER AS EXTRACTED ABOVE, HAS FURTHER PLEADED THAT THE CONCERNED CIT IS NOT DECIDING THE APPLICATION OF THE ASSESSEE DE NOVO, BUT ONLY RESTRICTING HIMSELF FOR RECORDING REASONS FOR NOT C ONDONING THE DELAY AND SINCE THE APPLICATION OF THE ASSESSEE HAS TO BE DEC IDED AFRESH, THEREFORE M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 3 FURTHER DIRECTION NEEDS TO BE GIVEN TO DECIDE THE A PPLICATION AFRESH AFTER DELETING THE WORDS GIVING REASONS FOR NOT CONDONIN G THE DELAY FROM THE ORDER, IN ORDER TO HAVE PROPER UNDERSTANDING OF THE BENCH ORDER. 3.2 THE LD. DR, WHILE STRONGLY OBJECTING TO THE SU BMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE, HAS STATED THAT THE ASSES SEE HAS NOT BEEN ABLE TO POINT OUT ANY MISTAKE IN THE ORDER OF THE TRIBUN AL AND WHATEVER HE IS STATING AT THE TIME OF ARGUMENTS AND IN THE PRAYER PART OF THE APPLICATION, HE WANTS TO GET A PORTION OF THE ORDER DELETED AND GETTING FRESH ORDER CONTAINING ALTOGETHER A DIFFERENT DIREC TION/ORDER AND IN A WAY HE IS ARGUING HIS APPEAL AFRESH AND ALSO SEEKING NE W RELIEF AND IF THE PLEA OF THE ASSESSEE IS ACCEPTED, THAT WOULD AMOUNT TO R EVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE, AS SUCH, IT WAS PRAYED TH AT THE APPLICATION OF THE ASSESSEE SHOULD BE DISMISSED. 4. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MA TERIAL ON RECORD AND HAVE ALSO GONE THROUGH THE MEMO OF APPEAL OF TH E ASSESSEE, ORDER OF THE TRIBUNAL AND APPLICATION OF THE AA U/S 254(2) O F THE ACT. IN THE PRAYER PART OF THE APPLICATION, ASSESSEE SEEKS FRES H DIRECTION WITHOUT POINTING OUT ANY APPARENT MISTAKE IN THE ORDER OF T HE TRIBUNAL, WHICH IN M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 4 OUR VIEW IS NOT PERMISSIBLE BECAUSE SECTION 254(2) DOES NOT PROVIDE FOR THAT AND OTHERWISE, THERE IS NO PROVISION IN THE I. T. ACT TO REVIEW ITS ORDERS PASSED BY THE TRIBUNAL. OTHERWISE ALSO, A N EW POINT RAISED IN THE APPLICATION NEEDS ELABORATE DISCUSSION AND READING WHICH ALSO BRINGS THE CASE OUT OF PURVIEW OF SECTION 254(2) OF THE ACT. MOREOVER, IF THE POWER TO REVIEW IS NOT PRESENT WITH THE TRIBUNAL, IT NEVE RTHELESS CAN EXERCISE POWER INDIRECTLY WHEN IT CANNOT DO SO DIRECTLY. IN THE ABSENCE OF EXPRESS POWER GIVEN TO THE TRIBUNAL TO REVIEW ITS OWN ORDER , A REFERENCE CAN BE MADE TO THE HONBLE SUPREME COURT DECISION IN THE C ASE OF NAGRAJ VS. STATE OF KARNATAKA [1993] [SUPPLEMENT] 4 SCC 595 TH AT RECTIFICATION OF AN ORDER STEMS FROM FUNDAMENTAL PRINCIPLE THAT JUST ICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND NOT TO DISTURB TH E FINALITY. AS SUCH, IF THE APPLICATION OF THE ASSESSEE IS ALLOWED, THAT WO ULD AMOUNT TO HEARING OF THE CASE AFRESH WHEN IT IS NOT A CASE OF EITHER GLARING OR PATENT MISTAKE BUT OF MAKING OUT ALTOGETHER A NEW POINT AN D NEW CASE, WHICH CANNOT BE HELD TO BE A RECTIFIABLE MISTAKE. OTHERW ISE, 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 ATTRAC T THE PROVISIONS OF SECTION 254(2), A MISTAKE MUST EXIST AND THE SAME M UST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEV ER, DOES NOT COVER M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 5 CASES WHERE A REVISION OR REVIEW OF THE ORDER IS IN TENDED. MISTAKE MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY ; TO MAKE AN ERROR IN INTERPRETING, IT IS AN ERROR; A FAULT, A MISUNDERST ANDING, A MISCONCEPTION. APPARENT MEANS VISIBLE; CAPABLE OF BEING SEEN; EA SILY SEEN; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTI ON 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECTI ON 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF TH E TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, THE AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGI NALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBL E UNDER THE PROVISIONS OF SECTION 254(2). FURTHER, WHERE AN ERROR IS FAR F ROM 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 CONF INED TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAND, IT DOES N OT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED BY THE SUPREME COURT IN MASTER CONSTRUCTION CO. (P.) LTD. V. STATE OF ORISSA [1966] 17 STC 360, AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 6 QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO E XPRESSED IN SATYANARAYAN LAXMINARAYAN HEGDE V. MALLIKARJUN BHAVANAPPA TIRUMALE AIR 1960 SC 137. IT IS TO BE NOTED THAT THE LANGUAGE USED IN OR DER 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 TO VARIOU S AUTHORITIES TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD IS UNDOUBTED LY 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 TAXATION LAWS, IT HAS A SPECIAL SIGNIFICANCE . IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WITHIN ITS PURVI EW. IT COMPREHENDS ERRORS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECO RD FROM WHICH IT IS SUPPOSED TO EMANATE, ARE DISCERNED. THE WORD MISTA KE IS INHERENTLY INDEFINITE IN SCOPE, AS WHAT MAY BE A MISTAKE FOR O NE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING L INE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WHICH A DUL Y AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE RECORD. IN OR DER TO ATTRACT THE POWER TO RECTIFY UNDER SECTION 254(2) IT IS NOT SUF FICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO BE RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM THE RECORD. A DECISION ON THE DEBATABLE POINT OF LAW OR UNDISPUTED QUESTION OF FACT IS NOT A MIST AKE APPARENT FROM THE M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 7 RECORD. THE PLAIN MEANING 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 POINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNOT BE CORRECTE D BY WAY OF RECTIFICATION. 5. THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE IN THE ORDER NOR THE SAME HAS BEEN NOTICED BY THIS BENCH AND IN CASE APPLICATION OF THE ASSESSEE IS ACCEPTED, AS RIGHTLY POINTED OUT BY THE LD. DR, THAT WOULD AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. UNDER RECTIFICATION PROCEEDINGS, THE TRIBUNAL IS NOT EMPOWERED TO REVIEW THE ORDER PASSED EARLIER AND S UPPORT CAN BE TAKEN FROM THE DECISION OF THE HONBLE CALCUTTA HIGH COUR T IN THE CASE OF CIT VS GOKUL CHAND AGARWAL (202 ITR 14), WHICH HAS DEALT W ITH THE SIMILAR POINT AND OPINED AS UNDER: SECTION 254(2) OF THE INCOME TAX ACT, 1961, EMPOWE RS THE TRIBUNAL TO AMEND ITS ORDER PASSED UNDER SECTION 254( 1) TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. THE JURISDICTION OF THE TRIB UNAL TO AMEND ITS ORDER THUS DEPENDS ON WHETHER OR NOT THERE IS A MISTAKE APPARENT FROM THE RECORD. 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 TRIB UNAL UNDER SECTION 254(2) WILL BE ILLEGAL AND IMPROPER. AN OV ERSIGHT OF A M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 8 FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIAB LE UNDER SECTION 254(2). THIS MIGHT, AT THE WORST, LEAD TO P ERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVAILABLE TO THE ASS ESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENCE PROCEEDING UN DER SECTION 256. THE NORMAL RULE IS THAT THE REMEDY BY W AY OF REVIEW IS A CREATURE OF THE STATUTE AND, UNLESS CLOTH ED WITH SUCH POWER BY THE STATUTE, NO AUTHORITY CAN EXERCISE T HE POWER. REVIEW PROCEEDINGS IMPLY PROCEEDINGS WHERE A PARTY, AS OF RIGHT, CAN APPLY FOR RECONSIDERATION OF THE M ATTER, 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 RESPEC T OF PROCEEDINGS BEFORE THE TRIBUNAL. 5.1 IN SIMILAR SITUATION, WHILE DEALING WITH THE RE CTIFICATION, THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT AND AN OR VS. I.T.A.T AND ANOR (206 ITR 126 HAS HELD AS UNDER: THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STAT UTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTIO N TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPE CIFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRI BUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AN D PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WH ICH IS SPECIFICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EXE RCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON A NY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT POWE R 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. UNLESS THERE IS A MISTAKE A PPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PRE VIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD B E ESTABLISHED ONLY BY LONG DRAWN ARGUMENTS OR BY A PR OCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APP ARENT FROM THE RECORD. M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 9 5.2 FURTHER, THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS KARAM CHAND THAPAR AND BR.P.LTD. (176 ITR 535) HAS HELD A S 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 THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MEREL Y TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEA RS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JUDG MENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT A LL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVA NT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, UNLESS , OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVER SE. 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 CONS IDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FA CT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISI ON 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 UND ER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TR IBUNAL M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 10 POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDE R WHICH IS APPARENT FROM THE RECORD.. THE POWER OF RECTIFICA TION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED S AN OBVIOUS AND PAT ENT 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 T O CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR AR RIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENTS 5.3 WE ALSO DRAW SUPPORT HERE FROM HONBLE MADRAS HIGH COURT DECISION IN T.C.(A) NO. 156 OF 2006 DATED 21.08.2007 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. WHE N 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 ACT. THERE WAS NO NECESSITY WHATSOEVER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER THE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL, WE COULD NOT FIND A SINGLE REASON IN THE WH OLE ORDER AS TO HOW THE TRIBUNAL IS JUSTIFIED AND FOR WHAT REAS ONS. THERE IS NO APPARENT ERROR ON THE FACE OF THE RECOR D AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHORITY O VER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION TO ALLOW A MISCE LLANEOUS 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 WI TH LAW. SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHE ARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBLITERATE M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 11 THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAK ES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) IS L IMITED AND NARROW. IT IS RESTRICTED TO RECTIFICATION OF MISTA KES 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 G LARING AND ANY MISTAKE APPARENT ON THE FACE OF THE RECORD ALON E CAN BE RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. 5.4 FURTHER, WE PLACE RELIANCE UPON HONBLE DELHI H IGH COURT EXPOSITION ON THE SCOPE OF RECTIFICATION U/S 254(2) AS REPORTE D IN THE CASE OF RAS BIHARI BANSAL VS. COMMISSIONER OF INCOME TAX (2007) 293 ITR 365:- SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UN DER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSID ER 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 T HE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CON CLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATI ON UNDER SECTION 254(2) OF THE ACT. FURTHER, IN THE GARB OF A N APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THE SECTION. 6. 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 ASSESSEE AND DISMI SS THE SAME BEING DEVOID OF ANY MERITS. M.A. M.A. M.A. M.A. NO. NO. NO. NO.283/MDS/08 283/MDS/08 283/MDS/08 283/MDS/08 12 7. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E ASSESSEE GETS DISMISSED. ORDER PRONOUNCED ON 21.01.2011 SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER VL/- DATED :. 21.01.2011. COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.