The DCITKheda Circle, Nadiad V. Shri Prahladray M.Shah,

MA 335/AHD/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4566 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2000-2001
• Appeal Filed On: 01-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C PANDIT
• Assessee Lawyers: M K PATEL
• Keywords: Audit objection
• Section: 142(1); 131; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI D.C. AGRAWAL A.M.) M.A. NOS. 333, 334, 335, 336 & 337/AHD./2009 (ARISING OUT OF I.T.A. NOS. 3510, 3511, 3512, 3 513 & 3514/AHD./2008) ASSESSMENT YEAR : 1998-1999 TO 2002-2003 ASSISTANT COMMISSIONER OF INCOME TAX, -VS.- SH RI PRAHLADRAY M. SHAH, NADIAD KHEDA CIRCLE, NADIAD (PAN : AGTPS 8575P) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI M.C. PANDIT, SR . D.R. RESPONDENT BY : SHRI M.K. PATEL, ADVOC ATE O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THESE MISCELLANEOUS APPLICATIONS FILED BY THE REVEN UE ARE ARISING OUT OF THE DECISION DATED 19.02.2009 OF THE ITAT, D BENCH, AHMEDABAD IN I.T .A. NOS. 3510 TO 3514/AHD./2008 FOR THE ASSESSMENT YEARS 1998-99 TO 2002-03 RESPECTIVELY, W HEREIN IT IS POINTED OUT THAT A MISTAKE HAS TAKEN P LACE IN THE ORDER OF THE TRIBUNAL IN APPRECIATION OF THE FACTS AS WELL AS THERE IS ELEMENT OF MISREPRESENTA TION ON THE PART OF THE LD. COUNSEL OF THE ASSESSEE. IN THE MISCELLANEOUS APPLICATION, IN SUPPORT OF ALLEGED M ISTAKE, THE FOLLOWING FACTS WERE SUBMITTED BY THE REVENUE F OR CONSIDERATION :- (A) YOUR HONOUR'S KIND ATTENTION IS DRAWN TO PARA, NO,7 OF THE ABOVE REFERRED ORDER. IN THIS PARA, THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS CLEARLY & UNAMBIGUOUSLY ACCEPTED AND ADMITTED THE FACT OF COM MITMENT OF NON-COMPLIANCE DEFAULT AT LEAST IN RESPECT OF ONE OF THE NOTICE IN THE CASE OF THE ASSESSEE FOR ALL THE FIVE ASSESSMENT YEARS. UNDER THE CIRCUMSTANCES, WHE N THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ACCEPTED AND ADMITTED SUCH NON- COMPLIANCE, IN THE OPINION OF THE UNDERSIGNED, A MISTAKE OF APPRECIATION OF FACT HAS TAKEN PLACE, WHICH REQUIRES TO BE CONSIDERED FOR RECTIFICATION. B) DURING THE COURSE OF THE RE-ASSESSMENT PROCEEDIN GS, NOTICES U/S 148 OF THE ACT FOR ALL THE 5 ASSESSMENT YEARS WERE ISSUED TO THE A SSESSEE. SIMILARLY, 4 NOTICES U/S.142(1) OF THE ACT CALLING INFORMATION, ETC., WE RE BEING ISSUED. DETAILED LETTERS WERE ALSO PART OF SUCH NOTICES U/S.142(1) OF THE AC T, INVARIABLY IN ALL THE LETTERS, ATTENTION OF THE ASSESSEE OF NON-FILING OF THE RETU RNS OF INCOME IN RESPONSE TO NOTICES U/S. 148 OF THE ACT WAS DRAWN BUT NO RETURN S OF INCOME WERE FILED / DELIVERED BY THE ASSESSEE. SIMULTANEOUSLY, NO COMPL IANCE WHATSOEVER WAS MADE IN RESPECT OF VARIOUS ISSUES RAISED BY THE NOTICES ISSUED U/S,142(1) OF [HE ACT. CONSIDERING SUCH CONTINUOUS NON-COMPLIANCE OF NOTIC ES ISSUED U/S.148 / 142( 1) OF THE ACT, A SUMMON U/S. 131 OF THE ACT WAS ISSUED AND THE SAME WAS ALSO NOT COMPLIED WITH IN LETTER & SPIRIT. IT IS PERTINENT T O NOTE THAT, FOR NON-COMPLIANCE OF 2 MA NOS. 333-337/AHD/200 9 THE SUMMON, PENALTY U/S.272A(1)(C) OF THE ACT WAS L EVIED ON THE SAME ASSESSEE FOR THE SAME FIVE ASSESSMENT YEARS. THESE PENALTIES U/S.272A(1)(C) OF THE ACT WERE ALSO BEING CONTINUED BY THE HON'BLE CIT(A) AND BEING AGGRIEVED THE ASSESSEE PREFERRED SECOND APPEAL BEFORE THE HON'BLE ITAT. THE APPEALS OF THE ASSESSEE AGAINST PENALTIES LEVIED U/S.272A(L)(C) OR THE ACT WERE DULY HEARD AND ADJUDICATED BY THE HON'BLE D BENCH OF ITAT, AHMED ABAD VIDE THEIR ORDER IN ITA NOS.1207 TO 1211/AHD/2009 DATED 26/06/2009. THE HON'BLE 1TAT HAS ELABORATELY DISCUSSED AND TAKEN INTO CONSIDERATION THE ENTIRE FACTS OF THE CASE OF THE ASSESSEE ESPECIALLY THE NOTICES ISSUED AND THEI R NON-COMPLIANCE MADE. IN THESE APPEALS ALSO, THE PLEA OF THE LEARNED REPRESE NTATIVE OF THE ASSESSEE WAS TO THE EFFECT THAT, THE NON-COMPLIANCE OF THE SUMMONS WAS DUE TO THE FACT THAT, THE BOOKS OF ACCOUNTS, ETC., WERE NOT IN HIS POSSESSION AND THEREFORE, HE WAS NOT IN A POSITION TO REPLY. IN NUTSHELL, THE SAME REASONS WE RE CITED BY THE REPRESENTATIVE OF THE ASSESSES AS PLEADED IN THE ITA NOS,3510 TO 3 5L4/AHD/2008. THE HON'BLE ITAT IN ITA NOS.1207 TO 1211/AHD/2009 DIRECTED THE REPRESENTATIVE OF THE ASSESSEE TO PRODUCE THE COPIES OF THE NOTICES ISSUE D U/S. 142(1) AND NO SUCH COPIES WERE FURNISHED AND RELIANCE WAS PLACED IN TH E DECISION OF ITA NO.3510 TO 3514/AHD/2008. THE HON'BLE ITAT AFTER CONSIDERING T HE OVERALL FACTS AND IN ABSENCE OF PRODUCTION OF COPIES OF SUCH NOTICES, RE JECTED SUCH RELIANCE AND PENALTIES LEVIED U/S.272A(1)(C) OF THE ACT FOR NON- COMPLIANCE OF THE SUMMONS WERE CONFIRMED. IT IS PERTINENT TO SUBMIT HERE THAT , THE SUMMON WAS ISSUED AS A CONSEQUENCE OF NON-COMPLIANCE OF THE NOTICES ISSUED U/S.148 AND 142(1) OF THE ACT. THE CONSEQUENTIAL ACTION OF PENALTY LEVIED U/S .272A(L)(C) HAS BEEN CONFIRMED WHEREAS THE PENALTIES LEVIED FOR THE BASIS OF NON-C OMPLIANCE I.E. NOTICES U/S. 142(1) & U/S.148 OF THE ACT WERE BEING DELETED, DES PITE CLEAR CUT ADMISSION ON THE PART OF THE LEARNED REPRESENTATIVE OF THE ASSES SEE ALSO, SO FAR AS NON- COMPLIANCE OF AT LEAST ONE NOTICE WAS CONCERNED FOR EACH OF THE FIVE ASSESSMENT YEARS. C) IT MAY KINDLY BE PLACED BEFORE YOUR HONOUR THAT, THE NOTICES U/S. 148 WERE BEING ISSUED TO ALL THE THREE ASSESSES FOR 5 ASSESS MENT YEARS I.E. A.YRS. 1998-99 TO 2002-03 ON IDENTICAL FACTS OF RUNNING AND OPERATING AS MANY AS 50 UNACCOUNTED BANK ACCOUNTS LIKE; CURRENT BANK ACCOUNTS, SAVINGS BANK ACCOUNTS, FDR BANK ACCOUNTS, FDOD BANK ACCOUNTS AND BENAMI BANK ACCOUN T. ALL THE DATA COLLECTED BY THE DEPARTMENT DURING THE COURSE OF THE INVESTIG ATION / INQUIRIES FROM ALL THE SOURCES WAS DULY BEEN PROVIDED TO ALL THE THREE ASS ESSES EVEN WITHOUT THEIR REQUEST FOR THE SAME. SIMILARLY, ENTIRE COPIES OF T HE CASE RECORDS I.E. REASONS FOR RE-OPENING OF THEIR ASSESSMENTS, ORIGINAL RETURNS O F INCOME, COMPUTATION OF INCOME, RELEVANT ACCOUNTS FILED WITH THE RETURNS OF INCOME, ETC. WERE ALSO BEEN PROVIDED TO NIL THE THREE ASSESSEES EVEN WITHOUT TH EIR REQUEST COMMON LETTERS BEING PART OF NOTICES ISSUED U/S.142(L) WERE BEING ISSUED TO ALL THE THREE ASSESSEES FOR ALL THE 5 ASSESSMENT YEARS. THE REPLIES OF SUCH LETTERS WERE ALSO BEING TENDERED BY SHRI PRAHLADRAY M. SHAH THROUGH COMMON LETTERS FOR ALL THE 3 ASSESSES DURING THE ENTIRE RE-ASSESSMENT PROCEEDING S. UNDER THE CIRCUMSTANCES, WHEN THE COMPLIANCE IS COMMON AND NOTICES / LETTERS U/S, 142(1) ARE ALSO COMMON IN RESPECT OF 3 ASSESSES, IN THE OPINION OF THE UNDERSIGNED, CONFIRMING OF PENALTIES IN RESPECT OF 2 ASSESSEES NAMELY; SMT.YAS HODADEVI P. SHAH AND SHRI DURGESH P. SHAH IN A COMMON ORDER OF ALL THE THREE ASSESSEES AND NON-CON FIRMING PENALTIES IN RESPECT OF ONE ASSESSEE NAMELY ; SHRI PRAHLADRAY M. SHAH APPEARS TO BE MISTAKE OF APPRECIATION OF FACTS. 3 MA NOS. 333-337/AHD/200 9 D) THE MOST SERIOUS MATTER WHICH 1 WOULD LIKE TO BR ING TO YOUR HONOUR'S KIND ATTENTION IS THE ELEMENT OF MIS-REPRESENTATION ON T HE PART OF THE ASSESSEE OR HIS LEARNED REPRESENTATIVE. FIRST OF A/IN M THE STATEMENT PROCEEDINGS U/S. 131 (1A) OF THE ACT BEFORE THE DDIT (INV.), BARODA. THE ASSESSEE HAS CLEARLY ADMITTED T HE FACT OF HAVING 2 YEARS BOOKS OF ACCOUNTS, ETC. IN HIS POSSESSION. THE RECORDING OF THE STATEMENT WAS PART OF THE INVESTIGATION BASED UPON WHICH THE ASSESSMENTS WERE RE-OPENED AND NOTICES U/S 148 OF THE ACT WERE ISSUED. DURING THE COURSE OF TH E RE-ASSESSMENT PROCEEDINGS ALSO, THE ASSESSEE HAS IN HIS 2 LETTERS DATED 21/04 /2005 & 17/11/2005 ADMITTED THE FACT OF HAVING 2 YEARS BOOKS OF ACCOUNTS IN HIS POS SESSION DESPITE HE HAS NOT MADE ANY COMPLIANCE OF ANY OF THE NOTICES U/S,148 OR U/S .142(1) OF THE ACT EVEN FOR SUCH 2 ASSESSMENT YEARS. THESE FACTS ARE VERY WELL DISCU SSED IN THE ASSESSMENT ORDERS AS WELL AS PENALTY ORDERS. AS AGAINST SUCH FACTUAL POSITION, IT WAS NOT CORRECT ON THE PART OF THE REPRESENTATIVE OF THE ASSESSEE TO P LEAD THAT, NON-COMPLIANCE WAS FOR THE NON-AVAILABILITY OF THE DETAILS FROM THE EA RLIER ADVOCATE. WHEN THE ASSESSEE WAS CONFRONTED WITH THE FACT OF H IS ADMISSION OF HAVING 2 YEARS BOOKS OF ACCOUNTS, ETC., HE CAME OUT WITH A NEW STO RY THAT ALL HIS RECORDS WERE IN THE CUSTODY OF HIS OLD ADVOCATE WHO HAS DESTROYED I T. THE UNDERSIGNED WROTE A LETTER TO THE OLD ADVOCATE, THOUGH IT WAS NOT OBLIG ATORY UPON THE UNDERSIGNED TO DO SO, AND THE OLD ADVOCATE DENIED THE FACT OF HAVI NG ANY BOOKS OF ACCOUNTS, ETC. IN HIS CUSTODY. IT WAS ALSO CONTENDED BY THE OLD AD VOCATE OF THE ASSESSEE THAT, THE CBI HAS SEIZED SOME OF THE RECORDS - NOT ANY BOOKS OF ACCOUNTS, ETC. BUT ONLY CLIENT FILE OF THE ASSESSEE - FROM HIS OFFICE ON 24 /10/2003. THE CONTENTION OF THE OLD ADVOCATE WAS BROUGHT TO THE NOTICE OF THE ASSESSEE AND IT IS PERTINENT TO NOTE HERE THAT THE ASSESSEE OBTAINED FROM THE CUSTODY OF THE CBI, THE COPY OF THE BALANCE SHEET RELATED TO THE A.Y.2002-03 AND FURNISHED THE SAME BEFORE THE UNDERSIGNED, AS IT WAS NOT TILED WITH THE ORIGINAL RETURN OF INC OME. THUS, UNDOUBTEDLY, THE RECORD SEIZED BY THE CBI WAS ACCESSIBLE TO THE ASSE SSEE AND HIS OLD ADVOCATE HAS CLEARLY & UNAMBIGUOUSLY DENIED THE FACTS OF HAVING ANY OTHER RECORDS PERTAINING TO THE ASSESSEE INCLUDING HIS BOOKS OF ACCOUNTS, ET C. ALL THESE FACTS WERE KNOWN TO THE ASSESSEE DURING THE COURSE OF THE RE-ASSESSMENT PROCEEDINGS ITSELF AND HAVE DULY BEEN DISCUSSED IN THE RE-ASSESSMENT ORDERS ITS ELF, AND THEREFORE, IT WAS NOT CORRECT ON THE PART OF THE LEARNED REPRESENTATIVE O F THE ASSESSEE TO HAVE TAKEN SUCH A PLEA THAT THE ASSESSEE WAS PREVENTED BY REAS ONABLE CAUSE OR WAS NOT HAVING ACCESS TO THE RECORDS IN THE CUSTODY OF HIS OLD ADVOCATE. SIRS, I WOULD LIKE TO FURTHER SUBMIT THE CONDUCT OF THE ASSESSEE WHICH CAME ON MY RECORD SUBSEQUENT TO THE PASSING OF RE-ASSESSMENT O RDERS AS WELL AS PENALTY ORDERS FOR THE A.YRS 1998-99 TO 2002-03. THOUGH, IT IS A FRESH MATERIAL PLACED BEFORE YOUR HONOURS', M THE INTEREST OF JUSTICE, TH E UNDERSIGNED HAS CONSIDERED IT APPROPRIATE TO PLACE THE SAME FOR YOUR HONOUR'S CON SIDERATION. ON ONE HAND, THE ASSESSEE WAS TAKING THE ABOVE STAND OF HAVING BOOKS OF ACCOUNTS, ETC. BEING DESTROYED BY HIS OLD ADVOCATE THROUGH-OUT THE RE-AS SESSMENT PROCEEDINGS AS WELL AS THROUGH-OUT THE PENALTY PROCEEDINGS U/S.271(1)(B ) OF THE ACT. ON THE OTHER HAND, THE ASSESSEE IN THE MONTH OF DECEMBER, 2002 H AS FILED A COMPLAINT BEFORE THE CHIEF COURT OF NADIAD TO THE EFFECT THAT, SOME PERSONS NAMELY; KETAN PATEL, MANJULABEN PATEL, ETC. HAVE LOOTED HIS ORNAMENTS, H OUSEHOLD AS WELL AS HIS LAST 10 YEARS BOOKS OF ACCOUNTS FROM 1991 TO 2000 ON 26/12/ 2002. ON SIMILAR FACTS, THE ASSESSEE ALSO FILED FIR IN THE NADIAD POLICE STATIO N IN JULY. 2003. PURSUANT TO 4 MA NOS. 333-337/AHD/200 9 SUCH COMPLAINT AND FIR, THE CASE WAS REGISTERED IN THE SESSION COURT OF NADIAD VIDE CASE NO. 152/05 BEFORE THE HON'BLE ADDL, SESSI ONS JUDGE. THE CASE WAS ADJUDICATED AND DURING SUCH ADJUDICATION, THE HON'B LE COURT CALLED UPON THE ASSESSEE TO GIVE HIS TESTIMONY ON SOLEMN AFFIRMATIO N ON 22/05/2006 AND 31/05/2006. DURING BOTH THESE TESTIMONIES, THE ASSE SSEE HAS REITERATED ON SOLEMN OATH & AFFIRMATION THE FACT OF LOOTING OF HIS 10 YE ARS BOOKS OF ACCOUNTS BY SUCH KETAN PATEL, ETC. THUS, ON ONE HAND THE ASSESSEE WA S TAKING PLEA IN THE RE- ASSESSMENT PROCEEDINGS AS WELL AS IN THE PENALTY PR OCEEDINGS THAT, HIS OLD BOOKS OF ACCOUNTS WERE DESTROYED BY HIS OLD ADVOCATE IN B ETWEEN PERIOD OF 21/03/2005 TO 15/06/2009. ON THE OTHER HAND, BEFORE THE COURT AND THE POLICE AUTHORITIES, DURING 26/12/2002 TO 15/06/2009, THE CONTENTION OF THE ASSESSEE WAS THAT HIS BOOKS OF ACCOUNTS OF LAST 10 YEARS HAVE BEEN LOOTED BY SOME KETAN PATEL & OTHERS. DURING THE COURSE OF THE REMAND REPORT PROCEEDINGS, WHEN THE A SSESSEE WAS CONFRONTED WITH THE ABOVE REFERRED DIFFERENT CONTRADICTORY STANDS IN RESPECT OF BOOKS OF ACCOUNTS, ETC., THE ASSESSES VIDE HIS LETTER DATED 15/06/2009 CAME FORWARD WITH A NEW STORY THAT, HE WAS IN POSSESSION OF 5 YEARS (A.Y 1998-99 TO 2002-03) KACCHA BOOKS OF ACCOUNTS BUT THROUGH OVERSIGHT, HE COULD NOT PRO DUCE THE SAME. ON THE BASIS OF SUCH KACCHA BOOKS OF ACCOUNTS, THE ASSESSEE GOT PREPARED THE REGULAR ACCOUNT BOOKS AND SUBMITTED BE FORE THE UNDERSIGNED. IT IS RESPECTFULLY SUBMITTED THAT, THE COURT CASE / POLICE C ASE WAS NOT WITHIN THE KNOWLEDGE OF THE UNDERSIGNED WHILE PASSING THE RE-ASSESSMENT ORDERS OR LEVYING PENALTIES BUT IT WAS VERY WELL WITHIN THE KNOWLEDGE OF THE ASSESSEE THE TRUE FACTS. THEREFORE, ANY INCORRECT NARRATION OF FACTS BY HIS REPRESENTATIVE BASED ON UNTRUE FACTS BEING PRESENTED BY THE ASSESSEE AMOUNTS TO DELIBERATE MIS-REPRESENTATION BY THE ASSESSEE. UNDER THE CIRCUMSTANCES, SUCH A PERSON DOES NOT DESERVE ANY JUDICIAL BENEDICTION. FOR YOUR HONOUR'S READY REFER ENCE, COPIES OF ALL THE NOTICES,/ LETTERS ISSUED U/S. 148, 142(1) ARE ENCLOSED AS PER ANNEXURE-A TO THIS LETTER. SIMILARLY, THE LETTERS SUBMITTED BY THE ASSESSEE IN COMPLIANCE OF SUCH NOTICES ARE ENCLOSED AS PER ANNEXURE-B TO THIS PETITION. THOUGH FRESH MATERIAL, BUT CONSIDERING THE RELEVANCE, THE POLICE COMPLAINT, TE STIMONY OF THE ASSESSEE AND COURT'S ORDER REGARDING LOOTING OF 10 YEARS BOOKS O F ACCOUNTS, ETC, ARE ENCLOSED AS PER ANNEXURE-C TO THIS PETITION. COPY OF THE HON'BLE IT AT, D' BENCH ORDER IN THE ITA NO,1207 TO 1211/AHD/2009 IS ENCLOSED AS PER ANNEXURE-D TO THIS PETITION. COPIES OF LETTERS OF OLD ADVOCATE OF THE ASSESSEE S HRI ARPIT V. SHAH ARE ENCLOSED AS ANNEXURE-E. FINALLY, ADMISSION BY THE ASSESSEE OF H AVING KACCHA BOOKS OF ACCOUNTS, ETC. VIDE LETTER DATED 15/06/2009 IS ENCLOSED AS ANNEXUR E-F TO THIS PETITION. 2. AT THE TIME OF HEARING ON BEHALF OF REVENUE SHRI M.C. PANDIT, SR. D.R. APPEARED AND CONTENDED THAT PENALTY TOTALING RS.2,50,000/- I.E. RS.50,000/ - PER ASSESSMENT YEAR LEVIED BY THE ASSESSING OFFIC ER IN THE CASE OF THE ASSESSEE BE RESTORED. HE SUBMITTED THAT ALONGWITH MISCELLANEOUS APPLICATION, THE ASSESSING OFFICER HAS FILED, NOTICES UNDER SECTION 142(1) FOR VARIOUS DATES. THESE WERE NOT COMPLIED A ND ASSESSEE/ LD. COUNSEL OF THE ASSESSEE MISREPRESENTE D BEFORE THE TRIBUNAL, WHICH IS EVIDENT FROM THE VA RIOUS NOTICES ENCLOSED BY ASSESSING OFFICER ALONGWITH THE MISCELLANEOUS APPLICATION. THE LD. D.R. ACCORDINGL Y SUBMITTED THAT EITHER THE TRIBUNAL MAY RECTIFY ITS ORDER BY RESTORING THE PENALTY LEVIED RS.50,000/- I N EACH OF THE ASSESSMENT YEAR OR IT MAY RECALL ITS ORDER F OR ALL THE ASSESSMENT YEARS. 5 MA NOS. 333-337/AHD/200 9 3. ON THE OTHER HAND, SHRI M.K. PATEL, ADVOCATE APP EARED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD W ITHIN THE MEANING OF SECTION 254(2) OF THE INCOME T AX ACT, 1961. HE FURTHER SUBMITTED THAT WHATEVER FURNI SHED BY THE ASSESSEE ALONGWITH THE MISCELLANEOUS APPLICATION WAS NOT FURNISHED AT THE TIME OF HEARIN G OF APPEAL OF THE ASSESSEE. IT IS WELL SETTLED LAW THAT TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER, THER EFORE, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE BE DISMISSED. 4. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINE NT TO NOTE THAT IN THE GROUNDS OF APPEALS REVENUE HAS NOT MENTIONED THAT THE APPEALS BY THE REVENUE W ERE FILED ON THE BASIS OF AUDIT OBJECTION, WHICH AR E ACCEPTED. THE TRIBUNAL HAS DECIDED ALL THE APPEALS ON THE BASIS OF SUBMISSIONS MADE AT THE TIME OF HEARING. AS A MATTER OF FACT, TRIBUNAL HAS TAKEN A CONSCIOUS DECISION AND BY THESE MISCELLANEOUS APPLICATIONS REVENUE IS MERELY SEEKING THE REVIEW. 5. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE. WE FIND CONSIDER ABLE FORCE IN THE SUBMISSION MADE BY THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THER E IS NO MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 19 61. IT IS WELL SETTLED LAW THAT TRIBUNAL HAS NO POW ER TO REVIEW ITS OWN ORDER UNDER SECTION 254(2) OF THE ACT. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION UNDER SECTION 254(2), LOOK INTO SOME OTHER CIRCUMSTANCES, WHICH WOULD SUPPORT OR NOT SUPPORT OF ITS VIEW. TO THIS PROPOSITION, AT THE TI ME OF HEARING, NO OBJECTION WAS RAISED BY THE LD. D .R.. BE THAT AS IT MAY, BY THESE MISCELLANEOUS APPLICATIONS , THE REVENUE IS MERELY SEEKING REVIEW OF ORDER OF THE TRIBUNAL AND ADMITTEDLY, THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. 6. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KA RAM CHAND THAPAR AND BROSS P. LTD., REPORTED IN 176 ITR 535 (SC) HELD THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IN OUR OPI NION, THERE IS NO MISTAKE APPARENT FROM RECORD WITH IN THE MEANING OF SECTION 254 (2). HOWEVER, IT IS WEL L SETTLED LAW THAT WHAT CAN BE RECTIFIED U/S. 254 ( 2) IS A MISTAKE, WHICH IS APPARENT AND PATENT FROM THE RECO RD. UNLESS THERE ARE MANIFEST ERRORS, WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, THE TRIBUNAL CANNO T RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REVIEW THE ORDER. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELAB ORATE REASON OR ENQUIRY IS NECESSARY. THE POWERS SO CONFERRED U/S. 254 (2) DO NOT CONTEMPLATE REHEARING WHICH WOULD HAVE THE EFFECT OF RE-WRITING AN ORDER AFFECTING THE MERITS OF THE CASE. OTHERWISE THERE W OULD BE NO DISTINCTION BETWEEN THE POWER TO REVIEW AND 6 MA NOS. 333-337/AHD/200 9 THE POWER TO RECTIFY A MISTAKE. THE POINT RAISED IN THE MISC. APPLICATION SUBMITTED BY THE REVENUE VIRTUALLY SEEKS A REVIEW OF THE ORDER PASSED BY THI S TRIBUNAL, WHICH IS CLEARLY BEYOND THE SCOPE OF SECTION 254 (2). 7. IN VIEW OF THE FOREGOING DISCUSSION, WE ARE CONV INCED THAT THERE CANNOT BE ANY DISPUTE WITH THE PROPOSITION THAT POWER UNDER SUB-SECTION (2) OF SEC TION 254 IS TO RECTIFY THE MISTAKE APPARENT FROM TH E RECORD, BUT THAT POWER DOES NOT CLOTHE THE TRIBUNAL WITH THE JURISDICTION TO REVIEW OF ITS EARLIER ORD ER OR RE- WRITE A FRESH JUDGMENT. BY PRESENT MISCELLANEOUS AP PLICATIONS REVENUE VIRTUALLY SEEKING REVIEW, THEREFORE, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE REJECTED. 8. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S FILED BY THE DEPARTMENT ARE DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 14.05.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 / 05 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGIS TRAR, ITAT, AHMEDABAD LAHA/SR.P.S.