M/s. Sapthagiri Finance & Investments, Kancheepuram V. ITO, CHENNAI

MA 321/CHNY/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5221 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-10-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-10-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 03-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: N DEVANATHAN
• Keywords: Rectification of order

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI C BENCH, CHENNAI. (BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. ABRAHAM P. GE ORGE, A.M.) M.A. NO. 321/MDS/2009 [IN I.T.A. NO. 683/MDS/2008] ASSESSMENT YEAR: 2000-01 M/S. SAPTHAGIRI FINANCE & INVESTMENTS, 44B107, SHEIKPET NADU STREET, KANCHIPURAM [PAN: AAPFS0225C] VS. THE INCOME TAX OFFICER, WARD I(1), 96, MM AVENUE, KANCHIPURAM 631 501. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N. DEVANATHAN REVENUE BY : SHRI B. SRINIVAS ORDER PER U.B.S. BEDI, J.M. BY MEANS OF PRESENT APPLICATION, THE ASSESSEE SEEK S TO GET RECALLED THE ORDER OF THE TRIBUNAL DATED 22.07.2009 PASSED IN I.T.A. NO. 683/MDS/2008 FOR THE ASSESSMENT YEAR 2000-01. 2 THE ASSESSEE HAS CONTENDED IN THE APPLICATION THA T THE ORDER OF THE TRIBUNAL IS CONTRARY TO THE LAW, FACTS AND THE CIRCUMSTANCES OF THE CASE AND RAISED THE FOLLOWING PLEAS: A) THE TRIBUNAL ERRED IN CONFIRMING THE REOPENING O F THE ASSESSMENT WITHOUT APPRECIATING THE FACT THAT NOTICE US 143(2) WAS NOT SERVED ON THE APPELLANT AFTER FILING OF THE RETURN IN RESPONSE TO NOTICE US 148. B) THE TRIBUNAL ERRED IN HOLDING THAT THE APPELLANT HAS WAIVED ITS RIGHT TO NOTICE U/S 143(2). C) THE TRIBUNAL OUGHT TO HAVE APPRECIATED THAT THER E CANNOT BE A CONCESSION ON THE MANDATORY REQUIREMENTS OF STATUE, AS THERE C ANNOT BE ESTOPPELS AGAINST THE LAW. D) THE TRIBUNAL ERRED IN HOLDING THAT THE PROPERTY BELONGS TO THE FIRM AND HENCE THE CAPITAL GAINS ON TRANSFER OF THE PROPERTY IS TAXABLE IN THE HANDS OF THE FIRM. E) THE CIT(A) OUGHT TO HAVE APPRECIATED THAT AT NO POINT OF TIME THE PROPERTY WAS OWNED BY THE FIRM. M.A. M.A. M.A. M.A. NO. NO. NO. NO.321/MDS/09 321/MDS/09 321/MDS/09 321/MDS/09 2 F) THE TRIBUNAL OUGHT TO HAVE APPRECIATED THAT THE SALE WAS EXECUTED BY THE PARTNERS OF THE FIRM IN THE INDIVIDUAL CAPACITY AND NOT AS PARTNERS OF THE FIRM. G) THE TRIBUNAL OUGHT TO HAVE APPRECIATED THAT THE INDIVIDUALS HAVE OBTAINED 230A CERTIFICATE FROM THE INCOME-TAX DEPARTMENT. H) THE TRIBUNAL OUGHT TO HAVE APPRECIATED THAT THE BUYER HAS GIVEN THE SALE CONSIDERATION BY ISSUING CHEQUES TO ALL THE INDIVID UALS. I) WITHOUT PREJUDICE TO THE ABOVE, THE TRIBUNAL OUG HT TO HAVE APPRECIATED THAT ASSUMING FIRM IS THE OWNER OF THE PROPERTY, TH E EXECUTION OF SALE BY THE PARTNERS IN THEIR INDIVIDUAL CAPACITY WOULD BE VOID AB INITIO. HENCE, CAPITAL GAINS CANNOT BE ASSESSED IN THE HANDS OF TH EM. J) THE TRIBUNAL OUGHT TO HAVE APPRECIATED THAT THE ASSESSING OFFICER HAS HIMSELF OBSERVED AT PAGE 4 AND 5 OF HIS ORDER THAT THE PROPERTY WAS PURCHASED AND SOLD BY ALL THE PARTNERS IN THEIR IND IVIDUAL CAPACITY. 2.1 TO SUPPORT THE PLEAS AS RAISED BY THE ASSESSEE, THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE DECISIONS REPORTED IN 3 SOT 87, 24 ITR 126, 300 ITR 354, 301 ITR 13, 301 ITR 260, 22 ITR 11 SC), 306 ITR 277 SC) AND 238 ITR 505 (MAD). 2.2 AT THE TIME OF HEARING OF THE APPLICATION, THE ASSESSEES COUNSEL LAID STRESS ON THE DECISIONS REPORTED IN 321 ITR 362 (SC) AND 238 ITR 505 (MAD) MAINLY TO PLEAD THAT IN THE ABSENCE OF NOTICE UNDER SECTION 143(2) HAVIN G BEEN SERVED UPON THE ASSESSEE, NEITHER THE ASSESSMENT COULD BE FRAMED NOR PENALTY COULD BE IMPOSED. THIS IS A MISTAKE APPARENT FROM THE RECORD, WHICH NEEDS TO BE RECTIFIED, WHICH MAY BE RECTIFIED TO RENDER JUSTICE. 3. THE LD. DR SUBMITTED THAT THE ASSESSEE IS RAISI NG A POINT, WHICH IS NOT A SUBJECT MATTER OF APPEAL EVEN BECAUSE IT IS AN APPEAL OF TH E DEPARTMENT AND NO SUCH GROUND IS THERE ABOUT NON-SERVICE OF NOTICE UNDER SECTION 143 (2) EITHER TO SUPPORT THE ORDER OR TO CHALLENGE THE ORDER OF THE LOWER AUTHORITIES IN THI S REGARD, SO HE COULD NOT RAISE THIS ISSUE. OTHERWISE, WHILE MAKING REFERENCE, IN PARTIC ULAR, TO GROUNDS OF THE APPEAL OF THE REVENUE, HE SAID THAT THE ISSUE IS NOT COMING EITHE R FROM THE GROUNDS OF APPEAL OR FROM THE ORDER OF THE TRIBUNAL, THEREFORE, UNDER THESE C IRCUMSTANCES, NO RECTIFICATION AS M.A. M.A. M.A. M.A. NO. NO. NO. NO.321/MDS/09 321/MDS/09 321/MDS/09 321/MDS/09 3 SOUGHT FOR IS POSSIBLE AND MOREOVER, THE ASSESSEE H AS OTHERWISE NOT POINTED OUT ANY MISTAKE IN THE ORDER OF THE TRIBUNAL, WHICH COULD B E RECTIFIED. AND THE ASSESSEE, IN THIS CASE, IS JUST TRYING TO RACK UP THE ISSUE WHICH WAS NEITHER RAISED NOR IS PART OF THE ORDER AND IN RECTIFICATORY PROCEEDINGS, SUCH TYPE OF ARGU MENTS CAN NEITHER BE ENTERTAINED NOR CONSIDERED, IT WAS THUS PLEADED FOR DISMISSAL OF TH E APPLICATION OF THE ASSESSEE. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH T HE APPLICATION OF THE ASSESSEE AND RELEVANT PROVISIONS OF LAW AS WELL AS CASE LAW CITED. BEFORE ADVERTING TO THE FACTS OF THE PRESENT CASE, IT WOULD BE RELEVANT FIRST TO DIS CUSS THE PROVISIONS RELATING TO SECTION 254(2). A BARE LOOK AT SECTION 254(2) OF THE ACT MA KES 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 A PPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COV ER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. MISTAKE MEANS TO TAKE O R UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING, IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. APPARENT MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY 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 DEPENDE NT ON ARGUMENT OR ELABORATION. 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 FRO M THE RECORD. ACCORDINGLY, THE AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY 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 FROM SELF-EV IDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE O F BEING RECTIFIED UNDER SECTION 254(2) IS M.A. M.A. M.A. M.A. NO. NO. NO. NO.321/MDS/09 321/MDS/09 321/MDS/09 321/MDS/09 4 NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATE D 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 TH E FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DE PENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VI EW 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 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 VARIOUS AUTHORITIES TO RECTIFY ANY MIS TAKE APPARENT FROM THE 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. M ISTAKE 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 PURVIEW. IT COMPREHENDS ERROR S WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE, AR E DISCERNED. THE WORD MISTAKE 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 L INE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WHICH A DULY AND JUD ICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE RECORD. IN ORDER TO ATTRACT THE POWER TO R ECTIFY UNDER SECTION 254(2) IT IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDE RS 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 MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE S OMETHING WHICH APPEARS TO BE SO EX M.A. M.A. M.A. M.A. NO. NO. NO. NO.321/MDS/09 321/MDS/09 321/MDS/09 321/MDS/09 5 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 APPL Y THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNOT BE CORRECTED BY WAY OF RE CTIFICATION. 5. NOW, COMING TO THE FACTS OF THE CASE, WE FIND TH AT THE ASSESSEE, IN THIS CASE, SEEKS TO GET RECALLED THE ORDER OF THE TRIBUNAL FOR FRESH HEARING BY, CHALLENGE ABOUT NON- SERVICE OF NOTICE U/S143(2) IN APPEAL AGAINST DELET ION OF PENALTY [IMPOSED BY THE A.O U/S 271(1)(C)] FILED BY THE DEPARTMENT, WHICH IS NEITHE R MENTIONED IN THE GROUNDS OF APPEAL NOR IT IS PART OF THE ORDER, THEREFORE, IN OUR CONS IDERED VIEW, IT COULD NOT BE THE SUBJECT- MATTER OF RECTIFICATION. THAT APART THE ASSESSEE HA S NOT POINTED OUT NOR THIS BENCH HAS NOTICED ANY MISTAKE IN THE ELABORATE AND DETAILED O RDER PASSED WHILE CONSIDERING EACH AND EVERY ASPECT OF MATTER IN APPEAL AND IN CASE, R EQUEST OF THE ASSESSEE IS ACCEPTED, IT WOULD AMOUNT TO REVIEW OF THE ORDER OF THE TRIBU NAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. UNDER RECTIFICATION PROCEEDINGS, THE TRIBUNAL IS NOT EMPOWERED TO REVIEW THE ORDER PASSED EARLIER AND SUPPORT CAN BE TAKEN FROM THE D ECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS GOKUL CHAND AGARWAL (20 2 ITR 14), WHICH HAS DEALT WITH 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 MI STAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. THE JURISDIC TION 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 JURISDICTI ON 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 WHICH THE REMEDY AVA ILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENCE PROCEEDING UND ER SECTION 256. THE NORMAL RULE IS THAT THE REMEDY BY WAY OF REVIEW IS A CREAT URE OF THE STATUTE AND, UNLESS CLOTHED WITH SUCH POWER BY THE STATUTE, NO AUTHORIT Y CAN EXERCISE 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 M.A. M.A. M.A. M.A. NO. NO. NO. NO.321/MDS/09 321/MDS/09 321/MDS/09 321/MDS/09 6 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. 5.1 IN SIMILAR SITUATION, WHILE DEALING WITH THE RE CTIFICATION, THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT AND ANOR VS. I.T.A.T AND ANOR (206 ITR 126 HAS HELD AS UNDER: THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE ST ATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF 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 THE 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 REVISI ON. IT IS AXIOMATIC THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED, IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT REC ALL 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 I S NOT A MISTAKE APPARENT FROM THE RECORD. 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 AS UNDER: APPELLATE TRIBUNAL DUTY TO CONSIDER CUMULATIVE E FFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS NO NEED TO ST ATE 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 INCID ENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS 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 TAKEN INTO ACCOUNT AN Y IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NO T LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY TH E TRIBUNAL ARE PERVERSE. M.A. M.A. M.A. M.A. NO. NO. NO. NO.321/MDS/09 321/MDS/09 321/MDS/09 321/MDS/09 7 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 CU MULATIVE 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 TRI BUNAL. 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 ANY MIST AKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD.. THE POWER OF RECTIFICA TION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOU GHT TO BE RECTIFIED S AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM T HE 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 EI THER PARTY FOR ARRIVING 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 HI GH 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 A SSESSEE, 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 SING LE REASON IN THE WHOLE ORDER AS TO HOW THE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASO NS. 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 PE TITION 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 DOES NOT CONTEMPLAT E REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBLITERATE THE D ISTINCTION BETWEEN THE POWER TO RECTIFY MISTAKES 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 MISTAKES APPARENT FR OM THE RECORD. RECALLING THE M.A. M.A. M.A. M.A. NO. NO. NO. NO.321/MDS/09 321/MDS/09 321/MDS/09 321/MDS/09 8 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 RECORD ALONE CAN BE REC TIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATI ON. 5.4 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 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 M ISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONS IDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT A N ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE F ACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRON G, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE A CT. 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 O F 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 SU BSTANCE IN THE PETITION OF THE ASSESSEE AND DISMISS THE SAME BEING DEVOID OF ANY MERITS. 7. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E ASSESSEE GETS DISMISSED. ORDER PRONOUNCED SOON AFTER THE CONCLUSION OF HEARI NG ON 01.10.2010. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER VM/- DATED :. 01.10.2010. COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.