Income Tax Officer- 1(3), Bareilly V. Mohammed Akram, Bareilly

MA 36/LKW/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3216 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 29-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Unexplained investment
• Section: 292BB; 251; 143(2); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW [THROUGH VIRTUAL HEARING] BEFORE SHRI. A. D. JAIN, VICE PRESIDENT M.A. NO.36/LKW/2019 [ARISING OUT OF ITA NO.172/LKW/2018] ASSESSMENT YEAR: 2014 - 15 ITO WARD 1(3) BAREILLY V. MOHD. A KRAM ROAD NO.1 BHEEM NAGAR, IZZAT NAGAR BAREILLY TAN/PAN: AOUPA3875P (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI HARISH GIDWANI, D.R. RESPONDENT BY: SHRI ABHINAV MEHROTRA, ADVOCATE DATE OF HEARING: 28 05 20 2 1 DATE OF PRONOUNCEMENT: 01 0 6 20 2 1 O R D E R THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE FOR RECALLING THE ORDER OF THE TRIBUNAL PRONOUNCED ON 28/2/2019 IN ITA NO.172/LKW/2018. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER HAD COMPLETED THE ASSESSMENT UNDER SECTION 147/144 OF THE ACT ON 30.11.2016 ON A TOTAL INCOME OF RS.12,62,100/- AS AGAINST THE RETURNED INCOME OF RS.3,02,650/-, TREATING THE SAME AS UNEXPLAINED INVESTMENT IN IMMOVABLE PROPERTY, WHICH WAS CONFIRMED BY THE LD. CIT(A). AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ITS ORDER PRONOUNCED ON 28/2/2019, ALLOWED THE APPEAL OF THE ASSESSEE OBSERVING AS UNDER:- M.A. NO.36/LKW/2019 PAGE 2 OF 11 3. THE LD. A.R. OF THE ASSESSEE CONTENDS THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE AND THAT SO, THE ENTIRE PROCEEDINGS ARE LIABLE TO BE QUASHED. 4. THE LD. D.R., ON THE OTHER HAND, RELIES ON THE ASSESSMENT ORDER, AS PER WHICH, NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED ON 28/8/2015 AND WAS SERVED ON THE ASSESSEE. 5. HEARD. THE ASSESSING OFFICERS RECORD WAS SUMMONED. IT HAS BEEN PRODUCED. FOLLOWING IS THE NOTICE ISSUED ON 28/8/2015 UNDER SECTION 143(2) OF THE ACT [THIS IS THE NOTICE REFERRED TO AT PAGE 1 OF THE ASSESSMENT ORDER]:- 6. AS EVIDENT FROM THE ABOVE NOTICE, IT WAS SERVED NOT ON THE ASSESSEE, BUT ON ONE ABDUL WAHID. THE DEPARTMENT HAS NOT BEEN ABLE TO SHOW THIS NOTICE TO HAVE BEEN SERVED ON EITHER THE ASSESSEE, OR ON HIS AGENT. THEREFORE, THE ASSESSEE M.A. NO.36/LKW/2019 PAGE 3 OF 11 IS CORRECT IN CONTENDING THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ON HIM. 7. IN HARSINGAR GUTKHA (P.) LTD. VS. CIT, 20 TAXMANN.COM 713 (ALL.), IT HAS BEEN HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT, AS FOLLOWS:- 'A PERUSAL OF THE PROVISIONS OF SECTION 143 (2) OF THE ACT SHOWS THAT THE SERVICE OF THE NOTICE ON THE ASSESSEE WITHIN THE PERIOD PROVIDED UNDER THE PROVISO IS MANDATORY. IN THE ABSENCE OF THE NOTICE BEING SERVED WITHIN THE STIPULATED PERIOD UNDER SECTION 143 (2) OF THE ACT, THE ASSESSMENT PROCEEDING COMES TO AN END AND IS DEEMED TO HAVE BECOME FINAL. RELIANCE IS BEING PLACED ON THE DECISIONS IN THE CASE OF CIT V. M. CHELLAPPAN [2006] 281 ITR 444 (MAD), VIPAN KHANNA V. CIT [2002] 255 ITR 220 (P&H), CIT V. C. PALANIAPPAN [2006] 284 ITR 257 (MAD), CIT V. BHAN TEXTILES P. LTD. [2006] 287 ITR 370 (DELHI), CIT V. LUNAR DIAMONDS LTD. [2006] 281 ITR 1 (DELHI) AND DEPUTY CIT V. MAHI VALLEY HOTELS AND RESORTS [2006] 287ITR 360 (GUJ).' 8. HARSINGAR GUTKHA (P.) LTD. VS. CIT (SUPRA) IS SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE AND, ACCORDINGLY, KEEPING IN VIEW THE SAME, THE ENTIRE PROCEEDINGS IN THE PRESENT CASE, CULMINATING IN THE IMPUGNED ORDER, ARE HELD TO BE NULL AND VOID AND ARE QUASHED. NOTHING FURTHER SURVIVES FOR ADJUDICATION, NOR WAS ANYTHING ELSE ARGUED. 9. IN THE RESULT, THE APPEAL IS ALLOWED. 3. BEFORE ME, THE LD. D.R. SUBMITTED THAT THE TRIBUNAL HAS WRONGLY ALLOWED THE APPEAL OF THE ASSESSEE, CONCLUDING THAT AS EVIDENT FROM THE ABOVE NOTICE, IT WAS SERVED NOT ON THE ASSESSEE, BUT ON ONE ABDUL WAHID, THAT THE DEPARTMENT HAS NOT BEEN ABLE TO SHOW THIS NOTICE TO HAVE BEEN SERVED ON EITHER THE ASSESSEE, OR ON HIS AGENT, THAT THEREFORE, THE ASSESSEE IS CORRECT IN CONTENDING THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ON HIM; AND THAT THE ENTIRE PROCEEDINGS WERE HELD TO BE NULL AND VOID. IT M.A. NO.36/LKW/2019 PAGE 4 OF 11 WAS CONTENDED THAT THE TRIBUNAL FAILED TO CONSIDER THE PROVISIONS OF SECTION 292BB OF THE ACT. 4. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE TRIBUNAL HAS TAKEN A CORRECT VIEW AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE SUBMISSIONS OF BOTH THE PARTIES, THEREFORE, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE TRIBUNAL. 5. I HAVE CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL VIS- -VIS THE MISCELLANEOUS APPLICATION. THE DEPARTMENT HAS RAISED THE FOLLOWING GRIEVANCES IN ITS APPLICATION: (I) THAT THE NOTICE UNDER SECTION 143(2) WAS SERVED IN TIME ON SHRI ABDUL WAHID, THE PERSON AVAILABLE AT THE ASSESSEES ADDRESS. (II) THAT HAVING CO-OPERATED IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS NO LOCUS TO PRESS FORTH THE ISSUE OF NON- RECEIPT OF NOTICE. (III) NO SUCH OBJECTION WAS RAISED BEFORE EITHER THE ASSESSING OFFICER, OR THE LD. CIT(A). (IV) THE ASSESSEE SIGNED POWER OF ATTORNEY AUTHORIZING HIS C.A. ON 3.9.2015, I.E., IMMEDIATELY AFTER ISSUANCE OF THE NOTICE ON 28.8.2015 AND THE C.A. APPEARED BEFORE THE ASSESSING OFFICER ON 2.12.2015, PROVING THE KNOWLEDGE OF THE ASSESSEE ABOUT THE ASSESSMENT PROCEEDINGS AND ALSO THAT THE ASSESSEE HAD RECEIVED THE NOTICES ISSUED PRIOR TO 2.12.2015. (V) THAT THE PROVISIONS OF SECTION 292BB OF THE ACT HAVE NOT BEEN CONSIDERED BY THE TRIBUNAL. M.A. NO.36/LKW/2019 PAGE 5 OF 11 6. HAVING CONSIDERED THESE ARGUMENTS OF THE DEPARTMENT, I FIND NONE OF THEM TO CONSTITUTE ANY MISTAKE APPARENT FROM THE RECORD. IN THE ORDER DATED 28.2.2019, THE TRIBUNAL NOTED THE DEPARTMENTS RELIANCE ON THE ASSESSMENT ORDER, WHEREIN IT WAS OBSERVED THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE. AS AGAINST SUCH OBSERVATION, REPRODUCING THE NOTICE DATED 28.8.2020, PARA 5, THE TRIBUNAL IN PARA 6 OF THE ORDER, HELD THAT AS EVIDENT FROM THE ABOVE NOTICE, IT WAS SERVED NOT ON THE ASSESSEE, BUT ON ONE ABDUL WAHID. THE DEPARTMENT HAS NOT BEEN ABLE TO SHOW THIS NOTICE TO HAVE BEEN SERVED ON EITHER THE ASSESSEE, OR ON HIS AGENT. THEREFORE, THE ASSESSEE IS CORRECT IN CONTENDING THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ON HIM. 7. IT IS SEEN THAT AT THE TIME OF ARGUMENTS, NONE OF THE OBJECTIONS NOW SOUGHT TO BE RAISED, WAS TAKEN BY THE DEPARTMENT. IT IS ONLY BY WAY OF THE APPLICATION UNDER CONSIDERATION THAT THESE PLEAS HAVE BEEN PUT FORWARD. HOWEVER, SUCH PLEAS ARE NOT SUSTAINABLE AS MISTAKES APPARENT FROM THE RECORD. WHAT THE DEPARTMENT IS ACTUALLY TRYING TO ASK FOR IS A REVIEW OF THE ORDER DATED 28.2.2019. THIS IS NOT AT ALL PERMISSIBLE IN LAW, SINCE IT IS TRITE THAT CORRECTION OF A MISTAKE APPARENT FROM RECORD CAN NEVER BE EQUATED WITH REVIEW OF AN ORDER, THE POWER OF REVIEW NOT HAVING BEEN GIVEN TO THE TRIBUNAL BY THE STATUTE CREATING IT. 8. THE SCOPE OF THE PROVISIONS OF SECTION 254(2) IS VERY LIMITED AND ONLY THOSE ERRORS WHICH ARE APPARENT OR ARITHMETICAL CAN ONLY BE RECTIFIED. THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT HAS BEEN REPEATEDLY EXAMINED BY THE HON'BLE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT THE TRIBUNAL CAN M.A. NO.36/LKW/2019 PAGE 6 OF 11 RECTIFY ONLY THOSE MISTAKES WHICH ARE ARITHMETICAL OR CLERICAL OR APPARENT IN ITS ORDER. THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER IN THE GARB OF RECTIFICATION. IT WAS ALSO HELD THAT IF THE TRIBUNAL COMMITS AN ERROR OF JUDGEMENT, THAT ERROR CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT, AS THE TRIBUNAL IS NOT EMPOWERED BY THE STATUTE TO REVIEW ITS OWN ORDER. 9. IN THE CASE OF CIT VS. VARDHMAN SPINNING, 226 ITR 296 (P&H), THEIR LORDSHIPS OF THE HON'BLE PUNJAB AND HARYANA HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE APPELLATE TRIBUNAL IS A CREATION OF A STATUTE AND IT CAN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. THE ONLY POWER CONFERRED ON THE TRIBUNAL U/S 254(2) OF THE I.T. ACT, 1961 IS TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED BY THE AUTHORITIES UNDER THE ACT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOSED INHERENT RIGHTS. U/S 254(1) OF THE ACT, THE APPELLATE TRIBUNAL, AFTER HEARING THE CONTESTING PARTIES, CAN PASS SUCH ORDER AS IT DEEMS FIT. SEC. 254(2) OF THE ACT SPECIFICALLY EMPOWERS THE APPELLATE TRIBUNAL AT ANY TIME WITHIN FOUR YEARS OF THE DATE OF AN ORDER TO AMEND ANY ORDER PASSED BY IT U/S 254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD, EITHER SUO MOTU OR ON AN APPLICATION MADE. WHAT CAN BE RECTIFIED UNDER THIS SECTION IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE, THEN IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD. 10. IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD INDUSTRIES (P) LTD., 226 ITR 34 (CAL), THEIR LORDSHIPS OF THE HON'BLE CALCUTTA HIGH COURT HAVE EXPRESSED SIMILAR OBSERVATIONS M.A. NO.36/LKW/2019 PAGE 7 OF 11 AFTER HOLDING THAT UNDER SECTION 254(2) OF THE INCOME-TAX ACT, AN ORDER WHICH HAS BEEN PASSED BY THE TRIBUNAL REACHES FINALITY THE MOMENT THE SAME IS PASSED AND IT CANNOT BE TOUCHED THEREAFTER. BY SECTION 254(2) OF THE ACT, THE TRIBUNAL, HOWEVER, HAS BEEN AUTHORIZED TO RECTIFY MISTAKES IN ITS ORDERS, WHICH ARE APPARENT ON THE FACE OF THE RECORD. THE EXPRESSION MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EITHER CLERICAL OR GRAMMATICAL OR ARITHMETICAL OR OF LIKE NATURE, WHICH CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO RE-ARGUE THE MATTER OR TO RE-APPRAISE THE FACTS AS APPEARING FROM THE RECORDS. IN ANOTHER CASE, CIT VS. GOLAL CHAND AGARWAL, 202 ITR 14 (CAL), THEIR LORDSHIPS OF HON'BLE CALCUTTA HIGH COURT HAVE ALSO HELD THAT SECTION 254(2) OF THE INCOME-TAX ACT, 1961 EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED U/S 254(1) TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTU OR ON AN APPLICATION. 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 TRIBUNAL U/S 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 AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2), BUT A REFERENCE PROCEEDINGS U/S 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. 11. THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. ITAT, 143 CTR 446 (ALLD) HAS HELD THAT SUB-SECTION (1) OF SECTION 254 CONFERS AMPLE POWERS ON THE TRIBUNAL TO PASS SUCH ORDERS IN ANY APPEAL FILED BEFORE IT AS IT THINKS FIT. SUB-SECTION (2) OF SECTION 254 POSTULATES THAT THE TRIBUNAL MAY AMEND ANY M.A. NO.36/LKW/2019 PAGE 8 OF 11 ORDER PASSED BY IT UNDER SUB-SEC. (1) OF SECTION 254 WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. THE POWER OF THE TRIBUNAL CONFERRED BY SUB-SECTION (2) OF SECTION 254 FOR RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD CANNOT BE EXERCISED BY THE TRIBUNAL TO RECALL ANY ORDER PASSED BY IT UNDER SECTION 254(2). FURTHER, REVIEWING AND RECALLING AN ORDER IS ONE THING AND RECTIFYING A MISTAKE IN THE ORDER WHICH IS APPARENT FROM THE RECORD IS QUITE ANOTHER. IN THE ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW BY TRIBUNAL, THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED OR REVIEWED UNDER SECTION 254(2) OF THE ACT. 12. THE PROVISIONS OF SECTION 254 WERE ALSO EXAMINED BY THE HONBLE HIGH COURT OF M.P. IN THE CASE OF PRAKASH CHAND MEHTA VS. CIT, 220 ITR 277 (M.P) IN WHICH THEIR LORDSHIPS HAVE HELD THAT THE SCOPE OF SECTION 254(2) OF THE INCOME-TAX ACT IS VERY LIMITED AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. 13. THEIR LORDSHIPS OF THE APEX COURT, IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHERS 82 ITR 50 (SC), HAVE HELD THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR LORDSHIPS HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING HIM IN THE WITNESS BOX, THE AUTHORITIES SHOULD NOT ACT UPON THAT STATEMENT WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE THE WITNESS, BUT THAT IS A MATTER NOT FOR RECTIFICATION BUT IT IS A MATTER RELATING TO THE MERITS OF THE CASE AS TO WHETHER THE TRIBUNAL HAS GONE WRONG IN NOT M.A. NO.36/LKW/2019 PAGE 9 OF 11 CONSIDERING THE AFFIDAVIT OF A PARTICULAR PERSON AND HAS ACTED UPON THE STATEMENT OF THE SAME PERSON WHICH WAS RECORDED BY THE ITO WITHOUT BEING PERMITTED TO BE CROSS EXAMINED BY THE ASSESSEE. THIS IS NOT A MATTER IN WHICH THE APPARENT ERROR IS INVOLVED BUT IT IS A MATTER MORE OF MERIT AND CANNOT BE RECTIFIED WITHIN THE SCOPE OF RECTIFICATION. 14. THE POWERS OF THE TRIBUNAL WHILE MAKING A RECTIFICATION WERE AGAIN EXAMINED BY THE APEX COURT IN THE CASE OF CIT VS. HERO CYCLES PVT. LTD., 228 ITR 463 (SC) IN WHICH THEIR LORDSHIPS HAVE HELD THAT RECTIFICATION CAN ONLY BE MADE WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM RECORD. RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. MOREOVER, A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS MISTAKE APPARENT FROM RECORD. 15. IN THE CASE OF ITO VS. ITAT, 229 ITR 651 (PAT.), THEIR LORDSHIPS OF THE HON'BLE PATNA HIGH COURT HAVE ALSO MADE A SIMILAR OBSERVATION AFTER HOLDING THAT SECTION 254(2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFYING A MISTAKE FROM RECORD. HOWEVER, SECTION 254(2) DOES NOT AUTHORIZE THE TRIBUNAL TO REVIEW ITS ORDER OR TO SIT IN APPEAL OVER ITS EARLIER ORDER. IF IT IS DONE, IT WOULD AMOUNT TO AN AMENDMENT OF AN EARLIER ORDER WITH A VIEW TO RECTIFY A MISTAKE APPARENT FROM RECORD, BUT IT WOULD BE AN ORDER PASSED ON REAPPRAISAL OF THE MATERIAL FACTS AND CIRCUMSTANCES AND ON A FRESH APPLICATION OF THE LEGAL POSITION, WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. 16. IN THE CASE OF MS. DEEKSHA SURI VS. ITAT, 232 ITR 395(DELHI), THEIR LORDSHIPS OF THE HON'BLE DELHI HIGH COURT HAVE M.A. NO.36/LKW/2019 PAGE 10 OF 11 HELD IN SPECIFIC TERMS THAT THE INCOME-TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT BEEN VESTED WITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGEMENTS OR ORDERS. THE GROUNDS ON WHICH THE COURTS MAY OPEN OR VACATE THEIR JUDGEMENTS ARE GENERALLY MATTERS WHICH RENDER THE JUDGEMENT VOID OR WHICH ARE SPECIFIED IN THE STATUTES AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961 IS CLEAR. THE FOUNDATION FOR EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. 17. SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY THE GUWAHATI HIGH COURT IN THE CASE OF CIT VS. PRAHLAD RAI TODI, 251 ITR 833 (GAU) BY HOLDING THAT A BARE LOOK AT SECTION 254(2) WILL SHOW THAT THIS SECTION GIVES THE POWER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND NOT TO AMEND ANY ORDER PASSED BY IT AND TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSING OFFICER OR THE ASSESSEE. SO, WHEN WE SPEAK OF AMENDMENT OR RECTIFYING THE MISTAKE, THE EARLIER ORDER CAN NEVER BE RECALLED BY THE TRIBUNAL. THE EARLIER ORDER MUST HOLD THE FIELD AND THE MISTAKE CAN BE RECTIFIED OR AMENDED CAN BE MADE TO THE ORDER. THE TRIBUNAL CANNOT, IN LAW AND FACTS, RECALL AND DESTROY ITS FINAL ORDER AS A WHOLE WITH A VIEW TO RECTIFY THE SAME ORDER UNDER SECTION 254(2) OF THE ACT. THE ACTION OF THE TRIBUNAL M.A. NO.36/LKW/2019 PAGE 11 OF 11 ACTUALLY AMOUNTS TO REVIEW OF ITS EARLIER ORDER AND THAT POWER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. 18. I, THEREFORE, FIND NO MERIT IN THIS MISCELLANEOUS APPLICATION OF THE DEPARTMENT, AS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL IS POINTED OUT. THE LD. D.R. HAS TRIED TO DISPUTE THE FINDINGS OF THE TRIBUNAL AND IS SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT AND I, ACCORDINGLY, REJECT THE MISCELLANEOUS APPLICATION. 19. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE DEPARTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/06/2021. SD/ - VICE PRESIDENT [A. D. JAIN] DATED:01/06/2021 JJ: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR