Tata Sponge Iron Ltd, Keonjhar V. DCIT, Sambalpur

MA 35/CTK/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8967 (ITAT-CUTTACK)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 31-08-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 25-10-2011
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: B C MOHANTYP K MISHRA ARS
• Keywords: Principle of natural justice; Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER MISC.APPLICATION NO.35/CTK/2011 IN / I.T.A.NO. 138/CTK/2010 (DISPOSED OF ON 12.08.2011) / ASSESSMENT YEAR 2006 - 07 TATA SPONGE IRON LIMITED, P.O.JODA, DIST.KEONJHAR, ORISSA 758 034 PAN: AABCT 0230 D - - - VERSUS - DY.COMMISSIONER OF INCOME - TAX, CIRCLE 1(1), SAMBALPUR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.C.MOHANTY/P.K.MISHRA, ARS / FOR THE RESPOND ENT: / S MT. PARAMITA TRIPATHY, DR / DATE OF HEARING: 31 . 08 . 2012 / DATE OF PRONOUNCEMENT: 28.09.2012 / ORDER . . . , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THE ASSESSEE HAS FIL ED THIS MISC.APPLICATION SEEKING RECTIFICATION POINTING OUT SOME FACTS STATED TO BE INADVERTENT MISTAKES IN THE ORDER DT.12.08.2011 PASSED BY THIS BENCH OF ITAT IN ITA NO.138/C TK/2011 IN CASE OF THE ASSESSEE, AS UNDER : 1. THAT THE ABOVE REFERRED APPEAL W AS PREFERRED BY THE APPLICANT HEREIN AND AN ORDER HAS SINCE BEEN PASSED BY THE HONBLE TRIBUNAL, CUTTACK BENCH ON 12TH AUGUST, 2011 AND THE SAME WAS SERVED UPON THE APPLICANT ON 25THI AUGUST, 2011. 2. THAT THERE WERE 9 (NINE) GROUNDS URGED BY THE APPELLAN T/ APPLICANT HEREIN, AS ALSO MENTIONED IN PARA 2 OF THE SAID ORDER OF THE HONBLE TRIBUNAL. 3. THAT THE SAID ORDER DATED 12TH AUGUST, 2011 PASSED BY THE HONBLE BENCH HAS CERTAIN MISTAKES, AS MENTIONED IN PARAGRAPHS HEREINAFTER, WHICH M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 2 REQUIRE RECTIFICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT,1961 FOR THE ENDS OF JUSTICE. 4. THAT WHILE ADJUDGING GROUND NO. 2(A) AND 2(B) IN RESPECT OF CLAIM OF THE APPLICANT UNDER SECTION 80 - IA OF THE INCOME TAX ACT, THE HONBLE BENCH HAS ERRED IN IGNORING THE FACT THAT THERE WERE RECEIPTS FROM SALE OF POWER AMOUNTING TO 74,03,840 TO THIRD PARTY, NAMELY NESCO. THE HONBLE BENCH ERRED IN PRESUMING THAT THE ENTIRE POWER PRODUCED BY THE POWER PLANT UNDERTAKING OF THE APPLICANT COMPANY WAS CAPTIVELY USED. IN PARA 9 OF THE ORDER THE FOLLOWING HAS BEEN MENTIONED: 9. ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS OF BOTH THE PARTIES, IT IS FOUND THAT UNDISPUTEDLY THE ASSESSEE HAS NOT SHOWN THE INCOME DERIVED BY IT FROM THE POWER PLANT UNIT IN THE GROSS TOTAL INCOME SHOWN BY THE ASSESSEE FOR TAXATION PURPOSES. THEREFORE, THE ASSESSEE S COMPUTATION OF DEDUCTION U/S 80 - IA IS NOT IN CONF ORMITY WITH SECTION 8OAB AS WELL. THE CONTENTION RAISED BY THE ASSESSEE REGARDIN G THE CLAIM U/S 80 - IA MADE BEFORE THE AUTHORITIES BELOW IS ONLY OF ACADEMIC INTEREST . THE APPLICANT WOULD LIKE TO REFER TO THE FACT WHICH IS ALSO APPEARING IN RECORDS THAT THERE WAS SALE OF POWER TO THE EXTENT OF 74,03,840 TO NESCO. THEREFORE AS A MATT ER OF FACT IT IS NOT CORRECT TO SAY THAT THE ASSESSEE HAS NOT SHOWN THE INCOME DERIVED BY IT FROM THE POWER PLANT UNIT IN THE GROSS TOTAL INCOME. THE APPLICANT CRAVES LEAVE TO REFER TO THE RELEVANT PAGES OF THE ASSESSMENT ORDER, COMPUTATION FILED BY THE AS SESSEE AND OTHER DOCUMENTS IN COURSE OF HEARING OF THIS MISC. APPLICATION. IT IS RESPECTFULLY URGED THAT SUITABLE RECTIFICATION MAY PLEASE BE MADE TO CORRECT THE FACT OF SALE OF POWER TO NESCO AND ALSO KINDLY ALLOW THE BENEFIT OF DEDUCTION U/S 80 - IA IN RES PECT THEREOF. 5. FURTHER IT IS RESPECTFULLY SUBMITTED THAT THE AMOUNT OF POWER CAPTIVELY UTILIZED WAS EMBEDDED IN THE PROFIT OF THE ASSESSEE COMPANY AS THE SAME WAS NEUTRALIZED BY THE CORRESPONDING AMOUNT TREATED AS EXPENDITURE ON POWER IN THE HANDS OF THE SPONGE IRON UNIT. THIS NEUTRALIZATION IS A MERE MATTER OF FORM BUT NOT OF SUBSTANCE. THE POWER UNIT HAS EARNED THE PROFIT TO THE EXTENT TRANSFER VALUE EXCEEDS THE COST OF GENERATION. THIS SURPLUS ACCRUING AS PROFIT TO THE POWER PLANT UNDERTAKING IN PRACTI CAL EFFE CT REMAINS EMBEDDED IN THE M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 3 COMPOSITE BOOK RESULT. IT IS SETTLED LAW AS PLEADED IN APPEAL THAT FORM OF ACCOUNTING IS AN IMMATERIALITY WHERE TRUE EFFECT OF THE TRANSACTION IS DISCERNIBLE. THAT LATTER OVERRIDES THE FORMER. IN OTHER WORDS, THE PROFIT & LOSS A CCOUNT OF THE COMPANY SHOWS THE CONSOLIDATED FIGURES IN CONSONANCE WITH THE PROVISIONS OF THE COMPANIES ACT. THEREFORE AS A MATTER OF FACT, EVEN IN CASE OF POWER CAPTIVELY USED, AMOUNTING TO 8,30,77,452A1SO [PLEASE REFER PAGE 220 - 222 OF ADDITIONAL PAPER BOOK (PAPER BOOK III)], IT IS FACTUALLY NOT CORRECT TO SAY THAT THE ASSESSEE HAS NOT SHOWN THE INCOME DERIVED BY IT FROM THE POWER PLANT UNIT IN THE GROSS TOTAL INCOME. THE APPLICANT CRAVES LE AVE TO REFER TO THE RELEVANT PAGES OF THE ASSESSMENT ORDER, COMPUTATION FILED BY THE ASSESSEE AND OTHER DOCUMENTS IN COURSE OF HEARING OF THIS MISC. APPLICATION. IT IS RESPECTFULLY URGED THAT SUITABLE RECTIFICATION MAY PLEASE BE MADE TO CORRECT THE FACT IN RESPECT OF NOTIONAL SALE OF POWER CAPTIVELY UTILIZED AND ALSO KINDLY ALLOW THE BENEFIT OF DEDUCTION U/S 8 0 - IA IN RESPECT THEREOF IT WAS URGED ON BEHALF OF THE ASSESSEE THAT U/S 8OAB DEDUCTIONS UNDER CHAPTER VI - A IS ALLOWABLE IF THE DEDUCTION CLAIMED IS IN CLUDED IN THE GROSS TOTAL INCOME OF THE ASSESSEE. THE GROSS TOTAL INCOME IS A COMPUTATION UNDER THE INCOME TAX ACT AND NOT UNDER SCHEDULE VI TO THE COMPANIES ACT BASED ON WHICH THE ANNUAL ACCOUNTS ARE PREPARED BY THE COMPANIES. IT MAY PLEASE BE SEEN FROM T HE COMPUTATION OF INCOME FILED BY THE ASSESSEE IN RESPECT OF THE ASSESSMENT UNDER DISPUTE AND OTHER RELEVANT DOCUMENTS THAT THE GROSS TOTAL INCOME OF THE ASSES SEE INCLUDES INCOME IN RESPECT OF WHICH THE CLAIM UNDER SECTION 80 IA IS MADE. THE ABOVE FACT MA Y PLEASE BE INCORPORATED AS PLEA MADE ON BEHALF OF THE ASSESSEE. 6. THAT IN PARA 5 OF THE ORDER, WHEREVER MENTION OF SECTION 80 IA(7) HAS BEEN MADE, IT IS ERRONEOUS AND IN FACT SHOULD BE SECTION 80 IA(8). THEREFORE IT IS HUMBLY PRAYED THAT THE ORDER MAY BE SUITABLY RECTIFIED. 7. THAT FURTHER IN PARA 5 OF THE ORDER, 16TH LINE, THE FOLLOWING HAS BEEN MENTIONED - THE OBSERVATION OF THE LOWER AUTHORITIES THAT THE ASSESSEE HAS NOT SHOWN THE INCOME FROM THE POWER PLANT IN THE CONSOLIDATED P & L ACCOUNT WHILE CAL CULATING THE INCOME TAXABLE IN ITS HANDS IS NOT CORRECT IN AS MUCH AS THE ASSESSEE HAS COMPUTED THE TOTAL EXPENDITURE INCURRED IN THE POWER PLANT UNIT DEBITED TO THE P & L M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 4 ACCOUNT AND THEREBY BALANCE IN THE FIGURE WILL NOT HAVE, IN FACT, TO THE RESULTANT F IGURE TAXABLE IN THE HANDS OF THE ASSESSEE . IN THE ABOVE CONTEXT, THE FACT IS THAT THERE WAS NO OBSERVATION BY THE ASSESSING OFFICER THE CIT (APPEAL) THAT THE ASSESSEE HAS NOT SHOWN THE INCOME FROM THE POWER PLANT IN THE CONSOLIDATED P & L ACCOUNT WHILE CALCULATING THE INCOME TAXABLE IN ITS HANDS. THE POINT WAS RAISED FOR THE FIRST TIME BY THE HONBLE TRIBUNAL IN COURSE OF HEARING AND THE MATTER WAS EXPLAINED ON BEHALF OF THE APPELLANT. THEREFORE, THE ABOVE LINES IN PARA 5 NEED TO BE SUITABLY RECTIFIED. T HE RECORDS OF THE CASE ALSO SUPPLY NO FOUNDATION FOR SUCH INFERENCE ON FACT. THE INFERENCE IS RATHER OPPOSED TO THE RECORDS. FURTHER IN EXPLANATION MADE ON BEHALF OF THE APPELLANT ON THE ABOVE ISSUE, VIDE SUBMISSION DATED 18.7.2011 IT WAS STATED AS UNDER A ND IT SHOULD HAVE BEEN RECORDED IN THE ORDER OF THE HONBLE TRIBUNAL, IN THE INTEREST OF NATURAL JUSTICE AND PASSING A SPEAKING ORDER: IN PARA 4 OF SUBMIS SION: DEDUCTION UNDER CHAPTER VIA VIS A VIS WHETHER GROSS TOTAL INCOME OF THE ASSESSEE INCLUDES ANY PROFIT AND GAIN DERIVED BY AN UNDERTAKING: SECTION 801A(1 ), REFERS TO AVAILABILITY OF DEDUCTION IF THE GROSS TOTAL INCOME INCLUDES PROFIT & GAIN DERIVED FROM ELIGIBLE UNDERTAKING. HOWEVER, UNDER THE PRESENT CIRCUMSTANCE GROSS TOTAL INCOME IN INCOME TAX PARLANCE IS UNDERSTOOD AS INCOME OF THE ASSESSEE AFTER CONSIDERING ELIGIBLE DEDUCTIONS FROM SEC 30 TO SEC 43 OF THE INCOME TAX ACT. THEREFORE THE UNDERTAKING WISE SALE - PURCHASE TRANSACTIONS, WHICH ARE CONTRA IN NATURE WOULD NOT FEATURE IN THE FACE OF THE CONSOLIDATED PROFIT & LOSS ACCOUNT PREPARED BY THE ASSESSEE FOR THE COMPANY AS A WHOLE. IT MAY BE NOTED THAT THE DEDUCTION UNDER CHAPTER VIA IS AVAILABLE TO THE ASSESSEE ONLY ON THE PROFIT DERIVED FROM THE UNDERTAKIN G AND REQUIRED TO BE CALCULATED AS PER T HE SCHEME PROVIDED IN THE SECTION, WHICH IS A CODE IN ITSELF THE INCOME APPEARING IN THE PROFIT AND LOSS ACCOUNT OF THE COMPANY AS PER PRESCRIBED SCHEDULE VI TO THE COMPANIES ACT, IS NOT NECESSARILY SUPPOSED TO HAVE RELEVANCE WITH THE TERM GROSS TOTAL I NCOME AS USED FOR INCOME TAX PURPOSE. IN THE PRESENT CASE THE GROSS TOTAL INCOME IS ARRIVED AT AFTER CONSIDERING THE INCOMES AS WELL AS EXPENSE M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 5 OF INTER UNITS/ UNDERTAKINGS TRANSFER OF POWER. THE CAPTIVE POWER USED BY THE SPONGE IRON PLANT IS AN EXPENDITU RE FOR THE SAID UNDERTAKING WHILE IT IS NOTIONAL INCOME FOR THE POWER PLANT UNDERTAKING. FOR THE SAKE OF UNDERSTANDING, EVEN IF BOTH ITEMS ARE CONSIDERED, THE ULTIMATE AMOUNT OF GROSS TOTAL INCOME REMAIN THE SAME AS THE DEBIT AND CREDIT WILL NEUTRALIZE. IN PARA 5 OF SUBMISSION: PROFIT AND LOSS ACCOUNT OF MIS. WEST COAST PAPER MILLS LIMITED: WE HAVE SUBMITTED COPY OF THE DECISION IN THE CASE OF WEST COAST PAPER MILLS LIMITED V. ACIT [2006] 103 LTD 19 (MUM.) WITH PB III (PAGES 273 TO 290 OF PAPER BOOK III) IN COURSE OF HEARING ON 23.5.201]. THE DECISION WAS WITH REFERENCE TO ASSESSMENT YEAR 1999 - 2000. WE HAVE BEEN ABLE TO OBTAIN COPY OF ANNUAL REPORT INCLUDING PROFIT AND LOSS ACCOUNT OF M/S WEST COAST PAPER MILLS LIMITED FOR F. Y. 1998 - 99 FOR CONV ENIENT REFERENCE. YOUR HONOUR WILL FIND THAT THE COMPANY DISCLOSED SALE OF POWER IN THEIR PROFIT & LOSS ACCOUNT AS NET OF OWN CONSUMPTION. (PLEASE REFER RELEVANT PAGES 31, 37 OF THE ANNUAL REPORT). THUS EVEN IN THE SAID CASE THE PROFIT & LOSS ACCOUNT OF MA IN COMPANY HAS DEALT THE CAPTIVE POWER CONSUMPTION IN THE MANNER WE HAVE DEALT WITH. THAT MEANS THE CAPTIVE POWER SALE AND EXPENSES ARE IN FACT NEUTRALIZED SO FAR THE MAIN PROFIT & LOSS ACCOUNT IS CONCERNED. THE DEDUCTION U/S 80 - IA WAS DULY ALLOWED IN THE CASE OF WEST COAST PAPER MILLS LIMITED (SUPRA). PARA 1 OF SUBMISSION: IT IS WELL SETTLED THAT THE ENTRY IN THE BOOKS OF ACCOUNTS ARE NOT DECISIVE FOR ADMISSIBILITY OF A CLAIM OF DEDUCTION UNDER INCOME TAX ACT. IF A DEDUCTION IS OTHERWISE ALLOWABLE IT IS IM MATERIAL WHETHER ANY PROVISION HAS BEEN MADE IN THE BOOKS OF ACCOUNT OR NOT, IN THIS CONTEXT, WE RELY AND REFER THE FOLLOWING DECISIONS. A) KEDARNATH JUTE MANUFACTURING CO. LTD V. CIT (1971) 82 ITR 363 (SC) B) SUTLEF COTTON MILLS LTD. V. CIT [19791 116 ITR 1 (SC) C) CIT V. INDIA DISCOUNT CO. LTD. [1970] 75 ITR 191 (SC) FROM THE PRINCIPLES LAID DOWN IN ABOVE DECISIONS, YOUR HONOUR WILL APPRECIATE THAT WHAT IS RELEVANT IS THE ALLOWABI LITY OF DEDUCTION AS PERMITTED UNDER THE INCOME TAX ACT, ANDNOT WHAT ENTRY H AS BEEN M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 6 MADE IN THE BOOKS OF ACCOUNT. OUR COMPANY IS ENTITLED TO DEDUCTION CONSIDERING THE SPECIFIC PROVISIONS OF SECTION 80 - IA , WHICH REQUIRES COMPUTATION OF INCOME OF ELIGIBLE UNDERTAKING AS IF IT IS THE ONLY BUSINESS. OUR COMPANY HAS ALREADY SUBMITTED THE AUDIT REPORT IN FORM NO.10CCB U/S.80IA(7) AS PAGE 60 - 65 OF THE PAPER BOOK. LIKEWISE COPY OF AUDITED BALANCE SHEET AND PROFIT & LOSS ACCOUNT OF POWER PLANT UNDERTAKING HAS BEEN SUBMITTED AS PAGE 66 - 73 OF THE PAPER BOOK. IT IS PRAYED THAT THE ABOVE SUB MISSIONS MADE IN THE WRITTEN SUBMISSIONS HAVE A DIRECT BEARING WITH THE CASE AND MAY KINDLY BE SUITABLY INCORPORATED IN THE ORDER BY THE HONBLE TRIBUNAL. 8. THE ORDER ALSO NEEDS TO BE RECTIFIED IN AS MUCH AS THE FOLLOWING GROUNDS HAVE NOT BEEN ADJUDICATED : GROUND NO. 1 GROUND NO. 2 (B) GROUND NO. 3 (A) GROUND NO. 3 (B) GROUND NO. 6 (A) GROUND NO. 6 (B) GROUND NO. 7 GROUND NO. 8 (A) GROUND NO. 8 (B) GROUND NO. 8 (C) GROUND NO. 9 IT IS HUMBLY URGED THAT THE SUBMISSIONS MADE BY THE APPELLANT MAY KINDLY BE CON SIDERED AND AFTER THE HEARING OF THE MISC. APPLICATION, THE ORDER MAY PLEASE BE RECTIFIED AS MAY BE DEEMED APPROPRIATE IN THE INTEREST OF JUSTICE. 9. IN PARA 4 OF THE ORDER THE FOLLOWING FIGURES HAVE BEEN APPARENTLY NOTED FROM THE ASSESSMENT ORDER BUT THE SE ARE INCORRECT. THE INCORRECTNESS WAS IN FACT POIGNANTLY POINTED OUT IN THE HEARING OF THE PRESENT APPEAL AND THE CORRECT FIGURES WERE SUBMITTED IN COURSE OF HEARING BEFORE THE HONBLE TRIBUNAL. AS IS EVIDENT FROM THE RECORDS, THE CORRECT FACTS AND FIGUR ES ARE AS UNDER M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 7 THE ASSESSEE HAD ORIGINALLY FILED RETURN BY ELECTRONIC MEDIA SHOWING TOTAL INCOME OF 17,43,13,477 ( AND NOT 17,22,50,295) ON 15.11.2006. SUBSEQUENTLY THE ASSESSEE FILED REVISED RETURN ON 25.09.2007 SHOWING TOTAL INCOME OF 17,22,50,294 ( AND NOT RSJ7,43,13,477). ( PLEASE REFER COPY OF EACKNOWLEDGEMENT OF RETURN AT PAGE 158 OF PAPER BOOK). 10. IN PARA 4 , AT PAGE 5, 3RD LINE ONWARDS AS ALSO IN PARA 6, 6TH LINE OF THE ORDER THE FIGURE OF 1,20,57,792 HAS BEEN MENTIONED REGARDING CLAIM OF EX PENSES ON PERIPHERAL DEVELOPMENT, WHICH IS IN FACT 10,57,792. HOWEVER THE ID. CIT (APPEAL HAD RESTRICTED THE DISALLOWANCE TO THE TUNE OF 10,01,592, A FACT WHICH HAS NOT BEEN MENTIONED IN THE ORDER OF THE HONBLE TRIBUNAL. AS IS EVIDENT FROM THE RECORDS, THE FACTS SHOULD ACCORDINGLY BE MENTIONED CORRECTLY BY RECTIFYING THE ORDER. 11. LIKEWISE AT PAGE 9 PARA 10, 2K LINE THE FIGURE OF 10,57,792 HAS BEEN MENTIONED REGARDING DISALLOWANCE OF PERIPHERAL DEVELOPMENT EXPENSES, WHICH SHOULD IN FACT BE 10,01,5 92. THE LD. CIT (APPEAL HAD RESTRICTED THE DISALLOWANCE TO THE TUNE OF 10,01,592, A FACT WHICH IS EVIDENT FROM THE RECORDS INCLUDING THE ORDER OF THE CIT(APPEALS) AND GROUND NO. 4. ACCORDINGLY IT IS HUMBLY SUBMITTED THAT THE FACTS SHOULD ACCORDINGLY BE ME NTIONED CORRECTLY BY RECTIFYING THE ORDER. 12. IN PARA 4 , AT PAGE 5, 8TH LINE OF THE ORDER THE WORDS UNSUCCESSFUL SHOULD IN FACT BE REPLACED BY PARTLY SUCCESSFUL. THE FACT SHOULD ACCORDINGLY BE MENTIONED CORRECTLY BY RECTIFYING THE ORDER 13 . IN PARA 6 , 6TH LINE AT PAGE 7, INSTEAD OF THE DEPARTMENTAL AUTHORITIES IT SHOULD BE ASSESSING OFFICER. IT SHOULD BE ADDED THAT THE CIT (APPEAL) HAD RESTRICTED THE DISALLOWANCE TO THE EXTENT OF 5,06,276. THE FACT IS EVIDENT FROM THE ORDER OF THE CIT (APPEALS) AND GROUND NO 5 ITSELF AS IS EVIDENT FROM THE RECORDS, THE FACTS SHOULD ACCORDINGLY BE MENTIONED CORRECTLY BY SUITABLY RECTIFYING THE ORDER. 14 . SIMILARLY IN PARA 8, PAGE 8, 4TH LINE FROM BOTTOM, AS ALSO AT PAGE 10, IN PARA 11, 1 ST LINE THE AMOUNT OF DISALLOWANCE HAS BEEN NOTED AS M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 8 RS 11,19,048 M RESPECT OF VEGETABLE GARDEN EXPENSES. THE DISALLOWAN CE HAD BEEN RESTRICTED BY THE CI T (APPEAL) TO THE EXTENT OF 5,06,276. THE FACT IS EVIDENT FROM THE ORDER OF THE CIT(APPEALS) AND GROUND NO.5 ITSELF. AS IS EVIDENT FROM THE RECORDS, THE FIGURE OF DISALLOWANCE SHOULD ACCORDINGLY BE MENTIONED CORRECTLY AS 5,06,276 BY SUITABLY RECTIFYING THE ORDER. 15. IN PARA 5 LINE 1 TO 4 IT IS STATED : DURING THE COURSE OF HEARING THE LD. A/R OF THE ASSESSEE HAS VEHEMENTLY ARGUED REITERATING THE CONTENTIONS RAISED BEFORE THE LOWER AUTHORITIES WI TH REFERENCE TO THE VARIOUS CIT ATIONS RELIED ON IN SUPPORT OF HIS CONTENTIONS. THE ORDER OF THE HONBLE TRIBUNAL NEEDS TO BE RECTIFIED IN AS MUCH AS MORE DECISIONS, OTHER THAN WHAT WERE CITED BEFORE LOWER AUTHORITIES WERE ALSO CITED BEFORE THE HONBLE TRIBUNAL. THE FOLLOWING IMPORTANT DECISIONS, AS REFERRED TO BY THE APPELLANT, SHOULD BE MENTIONED IN THE ORDER OF THE HONBLE TRIBUNAL, IN THE INTEREST OF JUSTICE: (1) CIT V. LAKHANPAL NATIONAL LTD. 304 ITR 365 (GUJ.) [P1. REFER PB II PAGE 163 - 169] (2) NATIONAL THERMAL POWER CORP N. LTD. V. ADD]. CIT [2004] 91 I TD 101 (DEL.) (PAGE 91 TO 99) (3) ADDITIONAL COMMISSIONER OF INCOME - T AX, RANGE 13, NEW DELHI V. NATIONAL THERMAL POWER CORPN. LTD. [2008] 114 LTD 138 (DEL.) [COPY AT PAGE 241 246] (4) WEST COAST PAPER MILLS LTD V ACIT, [2006] 103 LTD 19 (MUM) [P1 REFER PARA 5 2 OF W/S DTD 16 6 2011 FILED BY APPELLANT, COPY AT PGS 273 TO 29 0] (5) ADD L CIT V J INDAL STEEL & POWER LTD [2007] 16 SOT 509 (DELHI) [P1 REFER PARA 5.3 OF W/S DATED 16.6.2011 FILED BY APPELLANT; COPY AT PAGES 226 TO 240] THE SAME MAY SUITABLY BE INCORPORATED IN THE ORDER AS SUCH DECISIONS ARE ON RECORDS AND HAVE BEEN C ITED ON BEHALF OF THE ASSESSEE APPELLANT. 16 . THE APPLICANT URGES FOR GRANT OF AN OPPORTUNITY OF HEARING OF THIS MISCELLANEOUS APPLICATION UNDER SECTION 254(2) FOR RECTIFICA TION OF M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 9 ORDER PASSED BY THE HON BLE TRIBUNA L AND FOR THIS ACT OF KINDNESS THE APPLICANT, AS DUTY BOUND, SHALL EVER PRAY. 2. WE HAVE HEARD BOTH THE PARTIES REGARDING THE ISSUES RAISED IN THE MISC. APPLICATION AND THEIR LEGAL IMPLICATION. 3. ON CAREFUL ANALYSIS OF THE ISSUES RAISED IN THE LENGTHY M ISC. APPLICATION WITH REFERENCE TO THE ORDER PASSED BY THIS TRIBUNAL AND THE MATERIAL AVAILABLE ON RECORD, WE DO NOT FIND ANY APPARENT MISTAKE IN THE TRIBUNALS ORDER WITHIN THE SCOPE OF SECTION 252(2) OF THE I.T.ACT,1961 REQUIRING RECTIFICATION OF THE SAM E. RATHER THE ISSUES RAISED IN THE MISC. APPLICATION REQUIRES RE - ADJUDICATION BY REFERRING TO VARIOUS FACTS AND THEREBY REQUIRES PASSING THE ORDER AFRESH WHICH WOULD AMOUNT TO REVIEW OF THE ORDER . LAW IS WELL SETTLED THAT THE TRIBUNAL HAS NO POWER TO REVIE W ITS OWN ORDER UNDER S ECTION 252(2) OF THE I.T.ACT , AS RIGHTLY POINTED OUT BY THE LEARNED DR. IN THE CASE OF CIT V. HINDUSTAN COCA COLA BEVERAGES P. LTD., ([(2007) 293 ITR 163 (DEL), HONBLE DELHI HIGH COURT HAS OBSERVED THAT UNDER SECTION 254(2) OF THE I NCOME - TAX ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES APPARENT IN ITS ORDER. HOWEVER, IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIE S OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PREREQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD), BY ITS VERY NATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF T HE ORDER SOUGHT TO BE RECTIFIED. IN THAT VIEW OF THE MATTER, WE DO NOT FIND ANY MERIT IN THE MISC. APPLICATION AND AS SUCH THE SAME IS DISMISSED. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. SD/ - SD/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( ) DATE: 28.09.2012 ( ), M.A. NO.35/CTK/2011 I N ITA NO.138/CTK/2010 10 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : TATA SPONGE IRON LIMITED, P.O.JODA, DIST.KEONJHAR,ORISSA 758 034 2 / THE RESPONDENT: DY.COMMISSIONER OF INCOME - TAX, CIRCLE 1(1), SAMBALPUR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE T HE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD C LERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER .. (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.