M/s. Singara Nilgiri Plantation Company, The Nilgiris V. DCIT, Ooty

MA 299/CHNY/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5210 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-11-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 22-10-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 16-10-2009
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: S SRIDHAR
• Keywords: Rectification of order; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENNAI BEFORE SHRI U.B.S. BEDI, J.M. AND SHRI ABRAHAM P. GEORGE, AM .. M.P. NOS. 298 & 299 /MDS/2009 [A/O I.T.A. NO. 258 & 259/MDS/2008] ASSESSMENT YEARS 2003-04 & 2004-05 M/S SINGARA NILGIRI PLANTATION COMPANY SINGARA ESTATE, COONOOR THE NILGIRIS PAN : AAECS 9612 C VS. THE D.C.I.T CIRCLE I (1) OOTY (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. SRIDHAR DEPARTMENT BY : SHRI B. SRINIVAS O R D E R PER U.B.S. BEDI, J.M: BY MEANS OF THESE TWO APPLICATIONS, ASSESSEE SEEKS TO GET RECALLED THE ORDER OF THE TRIBUNAL ON THE GROUND TH AT THE BENCH, IN CONSIDERATION OF PRELIMINARY ISSUE WITH REFERENCE T O RULE 47 AND 45 OF R.W.S. 140 OF THE INCOME-TAX ACT, 1961 [IN SHORT , THE ACT], HAD HELD THAT THE MANAGER WHO SIGNED THE APPEAL PAPERS HAD NO COMPETENCE EVEN ON THE CONSIDERATION OF THE POWER O F ATTORNEY PAGE 2 OF 14 MP NOS. 298 & 299 /MDS/2009 EXECUTED BY THE PARTNERS OF THE PETITIONER. ACCORDI NGLY, AT PARA 7 OF THE COMMON ORDER, IT WAS HELD THAT THE PETITIONE R/ASSESSEE DID NOT OPT TO CORRECT THE DEFECT POINTED OUT AND HENCE DISMISSED THE APPEALS AS NOT MAINTAINABLE. 2. SINCE FACTS ARE IDENTICAL AND THE ISSUE INVOLVED IS SIMILAR, ARISING OUT OF CONSOLIDATED ORDER OF THIS TRIBUNAL DATED 1.4.2009, WE ARE DISPOSING OFF THESE MPS THROUGH THIS CONSOLIDAT ED ORDER. 3. AT THE TIME OF HEARING, THE LD COUNSEL FOR ASSES SEE, WHILE REITERATING THE SUBMISSIONS AS MADE IN THE APPLICAT ION, PLEADED THAT THE BENCH HAS OMITTED TO NOTICE THAT THE RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05 WAS SIGNED BY THE POWER OF ATTORNEY/MANAGER OF PETITIONER FIRM AND THE SAID RE TURN WAS ACTED UPON IN TERMS OF SECTION 140 OF THE ACT IN FRAMING THE ASSESSMENT. FURTHER, THE POWER OF ATTORNEY REFERRED TO AND CONS IDERED IN THE COMMON ORDER UNDER CONSIDERATION, IN FACT, HAD AUTH ORIZED THE MANAGER/ POWER OF ATTORNEY TO SIGN THE APPEAL PAPER S. IN FACT, THE POWER ASSIGNED IN CLAUSE (1) AND (7) WOULD COME TO THE RESCUE OF THE PETITIONER FIRM TO CONTEND THAT THE MANAGER HAD COMPETENCE TO PAGE 3 OF 14 MP NOS. 298 & 299 /MDS/2009 SIGN THE RETURN OF INCOME AS WELL AS TO SIGN THE AP PEAL PAPERS. THEREFORE, IT WAS PRAYED THAT THE ORDER OF THE BENC H DATED 1.4.2009 MAY BE RECALLED. IT WAS FURTHER SUBMITTED THAT THE ORDER OF THE BENCH DISMISSING THE PLEA ON THE PRELIMINARY ISSUE MAY BE RECALLED IN THE INTEREST OF JUSTICE AND WITHOUT PRE JUDICE TO THE ABOVE STAND, THE PETITIONER IS STATED TO HAVE ENCLO SED RECTIFIED FORM NO. 36 DULY SIGNED BY THE PARTNER IN TRIPLICAT E FOR EACH OF THE ASSESSMENT YEARS UNDER CONSIDERATION WITH PRAYER TO RECALL THE ORDER PASSED ON TECHNICAL GROUNDS FOR RENDERING DEC ISION ON MERITS 4. THE LD. D.R. STRONGLY OPPOSED THE APPLICATIONS O F THE ASSESSEE MAINLY ON THE GROUND THAT THE MANAGER IS NOT AUTHOR IZED TO SIGN THE PAPERS. IN VIEW OF THE SPECIFIC REASONS MADE IN TH IS REGARD AND THIS BENCH OF THE TRIBUNAL TAKING NOTE OF THIS FACT HAS CONCLUDED TO DISMISS THE APPEALS OF THE ASSESSEE AND NOW THE ASS ESSEE IS TRYING TO FILE FRESH APPEAL PAPERS DULY SIGNED BY PARTNERS OF THE FIRM WHICH, AT MOST, IS ADDITIONAL EVIDENCE AND IN RECTIFICATOR Y PROCEEDINGS, SAME CAN NEITHER BE ADMITTED NOR ACTED UPON. THE B ENCH HAS RIGHTLY DISMISSED THE APPEALS OF THE ASSESSEE AS TH E APPEALS PAPERS WERE NOT SIGNED BY THE COMPETENT PERSON AS PAGE 4 OF 14 MP NOS. 298 & 299 /MDS/2009 ENVISAGED IN THE RELEVANT PROVISIONS. IN CASE APPL ICATIONS OF THE ASSESSEE ARE ACCEPTED, THAT WOULD AMOUNT TO REVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE. AS SUCH, IT WAS PLEADED F OR DISMISSAL OF BOTH THE APPLICATIONS OF THE ASSESSEE. 5. IN REJOINDER, THE LD COUNSEL FOR ASSESSEE SUBMIT TED THAT IN ORDER TO GIVE SUBSTANTIAL JUSTICE, APPLICATIONS OF THE ASSESSEE SHOULD BE ACCEPTED AS DEFECT POINTED OUT HAS BEEN DULY REC TIFIED SO THE APPLICATIONS OF THE ASSESSEE FOR BOTH THE YEARS MAY BE ACCEPTED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE TRIBUNAL ORDERS AND FIND THAT THE TRIBUNAL, WHILE DECIDING B OTH THE APPEALS THROUGH A CONSOLIDATED ORDER, HAS OBSERVED IN PARAS 5 TO 7 OF ITS ORDER WHICH IS REPRODUCED, AS UNDER: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS ON THIS PRELI MINARY ISSUE AND CONSIDERED THE FACTS AND MATERIAL ON RECOR D. SUB- RULE (1) TO RULE 47 OF THE INCOME TAX RULES, 1962 READ AS UNDER:- PAGE 5 OF 14 MP NOS. 298 & 299 /MDS/2009 (1) AN APPEAL UNDER SUB-SECTION (1) OR SUB- SECTION (2) OF SECTION 253 TO THE APPELLATE TRIBUNAL SHALL BE MADE IN FORM NO.36, AND WHERE THE APPEAL IS MADE BY THE ASSESSEE, THE FORM OF APPEAL, THE GROUNDS OF APPEAL AND THE FORM OF VERIFICATION APPENDED THERETO SHALL BE SIGNED BY THE PERSON SPECIFIED IN SUB-RULE (2) OF THE RULE 45. SUB-RULE (2) OF RULE 45 OF THE INCOME TAX RULES, 1962 S AYS THAT THE GROUNDS OF APPEAL AND THE FORM OF VERIFICAT ION APPENDED THERETO RELATING TO AN ASSESSEE SHALL BE S IGNED AND VERIFIED BY THE PERSON WHO IS AUTHORIZED TO SIGN THE RETURN OF INCOME UNDER SECTION 140 OF THE INCOME-TAX ACT, 1961 , AS APPLICABLE TO THE ASSESSEE. SECTION 140 OF THE I.T . ACT PRESCRIBES THAT IN THE CASE OF A FIRM THE RETURN IS TO BE SIGNED BY THE MANAGING PARTNER THEREOF OR WHERE FOR ANY UNAVOIDABLE REASON SUCH MANAGING PARTNER IS NOT ABLE TO SIGN AND VERIFY THE RETURN, OR WHERE THERE IS NO MANAGING PARTNER AS SUCH, BY ANY PARTNER THEREOF, NOT BEING A MINOR. 6. FROM THE COMBINED READING OF THE ABOVE RULES AND SECTION, IT TRANSPIRES THAT IN THE CASE OF THE FIRM , THE APPEAL MEMO HAS TO BE SIGNED BY THE MANAGING PARTNER OR AN Y OF THE PARTNER AND DEFINITELY NOT BY MANAGER OF THE FIRM. FURTHER, ON GOING THROUGH THE COPY OF THE POWER OF ATTORNEY FILED PAGE 6 OF 14 MP NOS. 298 & 299 /MDS/2009 ALONG WITH THE LETTER DATED 18.3.2007 BY THE MANAGE R ADDRESSED TO THE ITAT, FROM PARA 3 OF THE SAID POWE R OF ATTORNEY, IT IS CLEAR THAT THE MANAGER HAS BEEN AUTH ORIZED TO RECEIVE ORDINARY AND REGISTERED LETTERS, COMMUNICATI ONS, NOTICES, DEMANDS, ETC. ON BEHALF OF THE FIRM AND AL L NON- RESIDENT PARTNERS FROM THE INCOME TAX, WEALTH TAX, TAMIL NADU AGRICULTURAL INCOME TAX AND TAMIL NADU GENERAL SAL ES TAX, KERALA SALES TAX DEPARTMENT AND APPEAR/REPRESE NT IN PERSON OR BY DELEGATION OF POWER IN FAVOUR OF PERSON S AS THE SAID ATTORNEY THINK FIT AND PROPER AND AS MAY BE NE CESSARY. ON GOING THROUGH THE ABOVE CLAUSE IN THE POWER OF AT TORNEY, IT IS CLEAR THAT THE POWER HAS BEEN GIVEN TO THE MA NAGER ONLY TO RECEIVE NOTICES, ETC. AND TO REPRESENT THE FIRM BEFORE THE INCOME-TAX AUTHORITIES AND NOT FOR SIGNING THE RETUR N OF INCOME ON BEHALF OF THE FIRM. IF THE MANAGER IS NO T GIVEN POWER TO SIGN THE RETURN OF INCOME, HE CANNOT SIGN APPEAL MEMO BEFORE THE TRIBUNAL. 7. IN VIEW OF THE ABOVE DISCUSSION, WE ARE CONSTRAIN ED TO DISMISS THE APPEALS AS NOT MAINTAINABLE FOR THE REA SON THAT IN SPITE OF GIVEN OPPORTUNITY FOR CORRECTING THE DEFECT , THE ASSESSEE DID NOT OPT TO CORRECT THE DEFECT POINTED OUT BY THE TRIBUNAL. HENCE, THESE TWO APPEALS ARE DISMISSED AS NOT MAINTAINABLE. PAGE 7 OF 14 MP NOS. 298 & 299 /MDS/2009 7. SINCE THE ORDER HAS BEEN PASSED GIVING PROPER RE ASONING AND BASIS AND ASSESSEE HAS NOT BEEN ABLE TO POINT OUT A NY APPARENT MISTAKES IN THE ORDER, NOR THE SAME HAS BEEN NOTICE D BY US SO WE DO NOT FIND ANY REASON TO RECALL THE SAID ORDER AND IN OUR VIEW THE APPLICATIONS OF THE ASSESSEE ARE LIABLE TO BE DISMI SSED BEING WITHOUT ANY MERITS. OTHERWISE ALSO, IN CASE THE APPLICATION S OF THE ASSESSEES ARE CONSIDERED AND ACCEPTED, IT WOULD AMOUNT TO REV IEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE AS R IGHTLY POINTED OUT BY THE LD. D.R. USEFUL REFERENCE CAN BE MADE TO THE DECISIONS HEREINAFTER NOTED. 7.1 THE HON'BLE ORISSA HIGH COURT IN THE CASE OF CI T & ANOTHER VS. I.T.A.T AND ANOTHER (198 ITR 188) IT WAS HELD AS UN DER: APPELLATE TRIBUNAL POWERS OF APPELLATE TRIBUNAL POWER TO RECTIFY ITS ORDER TRIBUNAL HOLDING THAT ARBITRATION EXPENSES NOT ALLOWABLE AS A SEPARATE ITEM AS FIXED PERCENTAGE OF AWARD MONEY TAKEN AS PROFIT OF CONTRACT BUSINESS TRIBUNAL CANNOT ALLOW ARBITRATION EXPENSES IN RECTIFICATION PROCEEDING INCOME TAX ACT 1961. SEC 254(2). PAGE 8 OF 14 MP NOS. 298 & 299 /MDS/2009 7.2 YET IN ANOTHER CASE, THE CALCUTTA HIGH COURT IN THE CASE OF CIT VS GOKUL CHAND AGARWAL (202 ITR 14), HAS DEALT WITH THE SAME 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 REC ORD EITHER SUO MOTO OR ON AN APPLICATION. THE JURISDICTI ON OF THE TRIBUNAL 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 WHIC H 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 FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIGHT , AT THE WORST, LEAD TO PERVERSITY OF THE ORDER FOR WHIC H THE REMEDY AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTIO N 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 EXERCISE THE POWER. REVIEW PROCEEDINGS IMPLY PROCEEDINGS WHERE A PARTY, AS OF RIGHT, CAN APPLY FOR RECONSIDERATION O F THE MATTER, ALREADY DECIDED UPON, AFTER A FRESH HEARING ON PAGE 9 OF 14 MP NOS. 298 & 299 /MDS/2009 THE MERITS O THE CONTROVERSY BETWEEN THE PARTIES. S UCH 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 OF CI T AND ANR VS. I.T.A.T AND ANR (206 ITR 126 HAS HELD AS UNDER: THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF IT S JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWER S OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUM ED INHERENT JURISDICTION AND PASS ORDERS AS 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 T HAT THE TRIBUNAL HAS GOT AN INHERENT POWER OF RECTIFICAT ION OR REVIEW OR REVISION. IT IS AXIOMATIC THAT SUCH POW ER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED , IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE APPA RENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL I TS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHIC H COULD BE ESTABLISHED ONLY BY LONG DRAWN ARGUMENTS OR PAGE 10 OF 14 MP NOS. 298 & 299 /MDS/2009 BY A PROCESS OF INVESTIGATION AND RESEARCH, IT IS N OT A MISTAKE APPARENT FROM THE RECORD. 7.4 FURTHER, THE HON'BLE SUPREME COURT IN THE CASE O F CIT VS KARAM CHAND THAPAR AND BR. P. LTD. (176 ITR 535) HA S 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 THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTEN CE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET O UT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTIC ED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A F AIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT I T HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASIN G ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIA BLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSION S ARRIVED AT BY THE TRIBUNAL ARE PERVERSE. PAGE 11 OF 14 MP NOS. 298 & 299 /MDS/2009 IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGEMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT H AS 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 JUDGM ENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. 7.5 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 PO WER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTA KE 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 TRIBUN AL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE PAGE 12 OF 14 MP NOS. 298 & 299 /MDS/2009 RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENTS 7.6 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 COR PORATION 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 RECTI FIED 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 O F THE JUDGMENTS OF THE TRIBUNAL, WE COULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER AS TO HOW THE TRIB UNAL IS JUSTIFIED AND FOR WHAT REASONS. THERE IS NO APPA RENT ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRI BUNAL SAT AS AN APPELLATE AUTHORITY OVER ITS OWN ORDER. I T IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVEL ED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PETIT ION 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 CONTEMPLAT E REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DO ING SO, WOULD OBLITERATE THE DISTINCTION BETWEEN THE POW ER TO RECTIFY MISTAKES AND POWER TO REVIEW THE ORDER M ADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICA TION OF SECTION 254(2) IS LIMITED AND NARROW. IT IS RES TRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECO RD. RECALLING THE ORDER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORDER IS NOT PERMISSI BLE PAGE 13 OF 14 MP NOS. 298 & 299 /MDS/2009 UNDER SECTION 254(2) OF THE ACT. ONLY GLARING AND A NY MISTAKE APPARENT ON THE FACE OF THE RECORD ALONE CA N BE RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. 7.7 FURTHER, WE PLACE RELIANCE UPON HONBLE DELHI HI GH COURT EXPOSITION ON THE SCOPE OF RECTIFICATION U/S 254(2) AS REPORTED IN THE CASE OF RAS BIHARI BANSAL VS. COMMISSIONER OF I NCOME 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 OVERS IGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFI ABLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNA L TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT O N 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 N O GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2 ) OF THE ACT. FURTHER, IN THE GARB OF AN APPLICATION F OR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER, WHICH IS BEYON D THE SCOPE OF THE SECTION. 8. THEREFORE, IN VIEW OF THE FACTS, CIRCUMSTANCES, IN THE LIGHT OF RATIO OF DECISIONS CITED AND DISCUSSION AS HELD ABO VE, WE DO NOT FIND ANY SUBSTANCE IN THE APPLICATIONS OF THE ASSESSEE A ND DISMISS THEM BEING DEVOID OF ANY MERITS. PAGE 14 OF 14 MP NOS. 298 & 299 /MDS/2009 9. IN THE RESULT, M.PS FILED BY THE ASSESSEES STAND DISMISSED. ORDER PRONOUNCED IN THE COURT ON 04.11.2010. (ABRAHAM P. GEORGE ) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 04.11.2010. VL COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE