V.C.Raam Sukesh, Puducherry V. ITO, Pondicherry

MA 45/CHNY/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5533 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 21-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 17-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MADHAVAN ADDITIONAL
• Keywords: Rectification of order; Principle of natural justice; Reasonable cause
• Section: 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , !' #$ , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI GEORGE MATHAN, JUDICIAL MEMBER M.P. NO.45/MDS./2017 ( I.T.A.NO.1359/MDS/2014 ASSESSMENT YEAR : 2010-11) MR.V C RAAM, SUKESH , G1,GROUND FLOOR, SHREE APARTMENT, NO.31,ROMAIN ROLLAND STREET, PUDUCHERRY 605 001. VS. THE INCOME TAX OFFICER, WARD I(2), PONDICHERRY. PAN AHKPR 1504 R [PAN ] ( $% / APPELLANT) ( &'$% /RESPONDENT) / APPELLANT BY : SHRI PHILIP GEORGE, ADVOCATE /RESPONDENT BY : SHRI MADHAVAN, ADDITIONAL CIT DR / DATE OF HEARING : 27 - 10 - 201 7 !'# / DATE OF PRONOUNCEMENT : 30 - 10 - 201 7 ( / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS MISCELLANEOUS PETITION IS FILED BY THE ASS ESSEE SEEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL IN ITA N O. 1359/MDS./2014 FOR THE ASSESSMENT YEAR 2010-11 DATED 15.09.2016. MP NO.45/MDS./2017 :- 2 -: 2. THE LD.A.R SUBMITTED THAT THE TRIBUNAL WRONGLY OBSERVED THAT THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX, PUDUCHERRY DATED 12.03. 2014 FOR ASSESSMENT YEAR 2010-11 PASSED U/S.143(3) AND 250 O F THE ACT. THE IMPUGNED ORDER CHALLENGED IN APPEAL WAS PASSED U/S. 263 BY THE CIT. THEREFORE, THE LD.A.R PLEADED BEFORE US THAT THE WO RDS U/S.143(3) AND 250 MAY BE SUBSTITUTED AS U/S.263 . THE LD.D.R CONCEDED THE ERROR IN THE ORDER TO THAT EXTENT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN OUR OPINION, IT WAS WRONGLY MENTIONED IN THE ORDER IN THE FIRST PARA OF THE ORDER THAT ORDER PASSED U/S.143(3 ) AND 250 OF THE INCOME TAX ACT,1961, WHICH IS NOT CORRECT. ACCORDI NGLY, THE FIRST PARAGRAPH SHOULD BE READ AS FOLLOWS:- THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME TAX, PUDUCHERRY DATED 12.03.2014 FOR THE ASSESSMENT YEAR 2010-11 PASSED U /S.263 OF THE INCOME TAX ACT,1961(HEREIN AFTER REFERRED TO AS THE ACT). 4. BEFORE US, THE LD.A.R SUBMITTED THAT ONE OF THE OTH ER ISSUES IN THE APPEAL WAS THE CHALLENGE TO EXERCISE OF JURISDICTIO N UNDER SECTION 263 BY THE COMMISSIONER OF INCOME TAX BY OBSERVING THAT THE AS SESSING OFFICER HAD PASSED A NON-SPEAKING ORDER ALLEGEDLY WITHOUT APPLI CATION OF MIND. BEFORE THE TRIBUNAL IT WAS SUBMITTED THAT IN THE COURSE OF THE SCRUTINY ASSESSMENT MP NO.45/MDS./2017 :- 3 -: THE ASSESSING OFFICER HAD CALLED FOR DETAILS ON ALL THE ISSUES RAISED BY THE COMMISSIONER OF INCOME TAX IN HIS NOTICE U/S.263 DA TED 12.03.14 AND THE APPELLANT FILED DETAILED REPLIES TO ALL THE QUERIES . THE SAME EXPLANATIONS AND COPIES OF THE LETTERS FILED AND ENCLOSURES WERE ALS O FURNISHED BEFORE THE COMMISSIONER OF INCOME TAX. IT WAS FURTHER SUBMITTE D THAT NEITHER THE ASSESSING OFFICER NOR THE COMMISSIONER OF INCOME TA X HAD FOUND ANY DISCREPANCY IN THESE EXPLANATIONS. THE CIT HAD SET ASIDE THE ORDER ON THE THREE ISSUES MENTIONED BY HIM ON FRIVOLOUS GROUNDS. THE ABOVE MENTIONED LETTERS AND ENCLOSURES WERE ALSO FILED BEFORE THIS HONBLE TRIBUNAL. ACCORDING TO LD.A.R, AS REGARDS THE FACTS OF WHETHER THE ASSE SSING OFFICER HAD APPLIED HIS MIND TO THE EXPLANATIONS GIVEN IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAS CLEARLY STATED THAT NOTICE U/S.142(1) W AS ISSUED ON 09.10.12 AND THAT THE AUTHORIZED REPRESENTATIVE HAD RESPONDED AN D PRODUCED THE BOOKS OF ACCOUNTS AND OTHER DETAILS AND THAT AFTER DISCUS SION THE ASSESSMENT WAS COMPLETED U/S.143(3). THE FACT THAT THE ASSESSING O FFICER HAD NOT PASSED AN ELABORATE ORDER ON EACH ISSUE IS NOT A FAULT OF THE ASSESSEE AND ON THIS VIEW THE APPELLANT RELIED ON THE FOLLOWING DECISIONS. (A) JUDGMENT OF THE HONBLE HIGH COURT, BOMBAY, DAT ED 03.02.2015 IN INCOME TAX APPEAL NO. 296 OF 2013 IN THE CASE OF CIT V. FINE JEWELLERY (INDIA) LTD. (B) ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, JOD HPUR, DATED 21.05.2014 IN I.T.A. NO. 86/JODH/2014 FOR THE A.Y. 2010-2011 IN THE CASE OF DEEPCHAND SURANA V. CIT REPORTED IN [2014] 163 TTJ (JD) 238. (C) ORDER OF INCOME TAX APPELLATE TRIBUNAL B BENC H, PUNE, DATED 28.08.2014 IN I.T.A. NO. 987/PN/2013 FOR THE AX. 2008- MP NO.45/MDS./2017 :- 4 -: 2009 IN THE CASE OF M/S. MUDHOL LAND HOLDING COMPAN Y PVT. LTD. V. CIT. 4.1 ACCORDING TO LD.A.R, ALL THESE DECISIONS APPLY ON THE ALL FORCES TO THE APPELLANTS CASE. NO DECISION CONTRARY TO THE A BOVE WERE CITED BEFORE THE TRIBUNAL NOR IN THE DECISION OF THIS HON BLE TRIBUNAL. THEREFORE AS REQUIRED UNDER THE CONCEPT OF JUDICIAL DISCIPLINE/PRECEDENCE THIS HONBLE TRIBUNAL WAS BOU ND TO FOLLOW THESE DECISIONS AND ALLOW THE APPELLANTS APPEAL. 4.2 IT WAS FURTHER SUBMITTED THAT THE TRIBUNAL HAS ALSO NOT SOUGHT TO DISTINGUISH THESE DECISIONS EVEN AFTER MENTIONING T HAT THE AUTHORIZED REPRESENTATIVE HAD RELIED ON VARIOUS DECISIONS AND MERELY IGNORED THEM. IN FACT, THE ENTIRE GRIEVANCE OF THE CIT WAS THAT THE ORDER OF THE ASSESSING OFFICER DOES NOT SHOW THAT HE APPLIED HIS MIND TO T HE EXPLANATIONS FILED. THE APPEAL WAS ALSO ON THIS ASPECT OF THIS ISSUE. IT WA S IN THIS REGARD THAT THE APPELLANT RELIED ON THE DECISIONS MENTIONED EARLIER , WHICH WERE ALL ON SIMILAR FACT BASIS OF ALLEGED NON-APPLICATION OF MIND. SINC E THE TRIBUNAL HAS NOT FOUND ANY REASON TO HOLD THAT THE DECISIONS RELIED ON WERE NOT APPLICABLE TO THE APPELLANTS CASE, THEN IT SHOULD HAVE APPLIED T HESE DECISIONS AND ALLOWED THE ASSESSEES APPEAL. ACCORDING TO LD.A.R, THIS IS ANOTHER MISTAKE OF LAW APPARENT ON THE FACE OF THE RECORD. IT WAS A SUBMI SSION THAT MAIN BASIS ON WHICH THE TRIBUNAL HAS BASED ITS DECISION CAN BE FO UND IN THE FOLLOWING SENTENCE AT PAGE 10 IN THE ORDER: THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT PROD UCE ANY EVIDENCE TO PROVE THAT THE INFORMATION FILED WAS BR OUGHT ON RECORD. MP NO.45/MDS./2017 :- 5 -: 4.3 ACCORDING TO LD.A.R, THE ENTIRE DECISION ON A PURELY LEGAL ISSUE SHOULD BE SOUGHT TO BE BASED ON AN ASPECT WHICH THE DR COU LD NOT HAVE HAD ANY PERSONAL KNOWLEDGE. THIS FACT, THAT THE LETTERS WER E FILED WITH FULL EXPLANATION BEFORE THE ASSESSING OFFICER WAS NEVER A MAILER IN DISPUTE OR DOUBT. EVEN THE CIT IN HIS ORDER HAS NOT DOUBTED OR DISPUTED THIS FACT. IT WAS CATEGORICALLY STATED THAT SUCH A QUERY WAS NEIT HER PUT TO THE DR NOR WAS IT HIS SUBMISSION THAT THESE LETTERS AND DETAILS WE RE NEVER FILED. IF THE TRIBUNAL HAD ANY SUCH DOUBTS, THEN IT HAD AMPLE POW ERS TO HAVE CALLED FOR THE RECORDS AND EXAMINED THE SAME. NOT HAVING DONE SO AND PROCEEDING ON A WRONG ASSUMPTION IS CLEARLY A MISTAKE OF LAW APPA RENT ON THE FACE OF THE TRIBUNAL ORDER AND A MISCARRIAGE OF NATURAL JUSTICE , WHICH IS SUFFICIENT GROUND FOR SETTING ASIDE AND RECALLING THE ORDER TO RECTIF Y THE LEGAL DEFECT. THE TRIBUNAL HAS FINALLY HELD AS UNDER:- THE ID. COMMISSIONER OF INCOME TAX HAS DIRECTED IN VESTIGATION AND EXAMINATION ON INVESTMENTS IN MUTUAL FUNDS AND DISCLOSURE OF RENTAL INCOME AND CASH ON HAND. WE ARE OF THE OP INION THAT SUCH DIRECTION SHALL NOT STOP THE ASSESSEE FROM SUB MITTING THE CLARIFICATIONS AND SHOULD NOT BE PUT IN A WORST POS ITION. THE ID. COMMISSIONER OF INCOME TAX ISSUED SPECIFIC DIRECTIO NS TO THE ID. ASSESSING OFFICER BUT SET ASIDE OF ORDER U/SEC. 143 (3) OF THE ACT WITH SPECIFIC DIRECTIONS TO CONDUCT FURTHER INVESTI GATION AND EXAMINATION CANNOT BE ACCEPTED AND IN THE INTEREST OF JUSTICE THE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURE JUSTICE. WE SET ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX AND R EMIT THE FILE TO THE ID. ASSESSING OFFICER TO DECIDE AFRESH AND P ASS SPEAKING ORDER ON MERITS AND THE ASSESSEE SHOULD BE PROVIDED WITH ADEQUATE OPPORTUNITY OF HEARING BEFORE PASSING THE ORDER. MP NO.45/MDS./2017 :- 6 -: 4.4 IT WAS SUBMITTED THAT FINDING OF THE HONBLE T RIBUNAL AND THE DIRECTIONS GIVEN ARE TOTALLY INCONSISTENT WITH THE SCHEME OF THE APPELLATE JURISDICTION. IT WAS SUBMITTED, WITHOUT CONCEDING, THAT EVEN IF IT CAN BE HELD THAT THE COMMISSIONER OF INCOME TAX HAD JURISDICTIO N TO REVISE THE ORDER, HE HAS THE POWER TO DECIDE ON WHICH ISSUES THE ASSESSI NG OFFICER SHOULD MAKE ENQUIRIES. 4.5 ACCORDING TO LD.A.R, IN THE PRESENT APPEAL IT WOULD BE CLEAR THAT THE CIT WAS SATISFIED WITH THE EXPLANATION GIVEN WITH R EGARD TO ALL OTHER ISSUES EXCEPT THESE THREE ISSUES. THE TRIBUNAL HAS BY ITS ORDER PUT THE APPELLANT IN A WORSE SITUATION THAN THAT HE WAS EARLIER OR AFTER THE ORDER OF CIT U/S. 263. THIS WAS TOTALLY OPPOSED TO THE PRINCIPLES OF LEGAL JURISPRUDENCE AND NATURAL JUSTICE. ACCORDING TO LD.A.R, IT IS WELL ESTABLISHE D THAT AN APPELLANT CANNOT BE PUT INTO A WORSE POSITION THAN WHAT HE WAS IN WHEN HE APPROACH THE HIGHER JUDICIAL BODY FOR RELIEF. IN THIS PRESENT CASE THE ORDER OF THE HONBLE TRIBUNAL DOES EXACTLY THIS. IT DIRECTS THE AO TO ONCE AGAIN REDO THE ENTIRE ASSESSMENT EVEN THOUGH THE REVISIONAL AUTHORITY WAS ITSELF CON VINCED WITH ALL BUT THREE ASPECTS OF THE MATTER. ON THIS GROUND ALSO THE ORDE R OF THE TRIBUNAL HAS COMMITTED A MISTAKE ON THE FACE OF THE RECORD. 4.6 THE LD.A.R PLEADED THAT IN VIEW OF THE ABOVE SUBMISSIONS AND THE APPARENT MISTAKE OF LAW AND FACT THAT HAVE BEEN POI NTED OUT, THE IMPUGNED ORDER OF THE TRIBUNAL MAY BE RECTIFIED TO REMOVE T HE ABOVE MENTIONED MISTAKES APPARENT ON THE FACE OF THE RECORD AND THE APPEAL OF THE APPELLANT MAY BE ALLOWED. FURTHER, THE LD.A.R PRAYED THAT THE TRIBUNAL MAY BE PLEASED MP NO.45/MDS./2017 :- 7 -: TO MODIFY ITS ORDER DATED 15.09.2016 AS ABOVE AND P ASS APPROPRIATE ORDER AFTER AFFORDING THE PETITIONER AN OPPORTUNITY OF BE ING HEARD AND THUS RENDER JUSTICE. 5. ON THE OTHER HAND, THE LD.D.R SUBMITTED THAT TH ERE IS NO ERROR IN THE ORDER OF TRIBUNAL SO AS TO RECTIFY / RECALL IT AND THE CONSIDERATION OF THE ARGUMENTS OF THE LD.A.R IS AMOUNT TO REVIEW OF EAR LIER ORDER OF TRIBUNAL FOR WHICH THE TRIBUNAL HAS PASSED U/S.254(2) OF THE ACT . 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE CONTENTION OF THE LD.A.R IS THAT THE ARGUMENTS MADE BY THE LD.A.R AND DECISIONS REFERRED TO BY THE LD.A.R DURING THE ORIG INAL HEARING OF THE APPEAL HAVE NOT BEEN CITED AND CONSIDERED IN THE IMPUGNED ORDER OF TRIBUNAL DATED 15.09.2016. IN OUR OPINION, THE ARGUMENTS OF THE LD .A.R ARE NOT MAINTAINABLE IN THIS REGARD, BECAUSE THE TRIBUNAL ON EARLIER OCC ASION CONSIDERED THE ARGUMENTS OF THE LD.A.R AND RELEVANT MATERIALS BEFO RE DECIDING THE APPEAL. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN ITS JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CU MULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF FAC TS, 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 O F THE TRIBUNAL. FOR THIS PURPOSE, WE PLACE RELIANCE ON THE JUDGEMENT OF SUPR EME COURT IN THE CASE OF CIT VS. KARAM CHAND THAPAR & BROS. PVT. LTD., IN (1989) 176 ITR 0535(SC) WHEREIN HELD THAT:- THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTIN ISED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN MP NO.45/MDS./2017 :- 8 -: DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL F ACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE T RIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FAIR READING OF THE JU DGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVANT MATER IAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LI ABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN ITS JUDGEMENT SPECIFICALLY OR IN EXPRESS WORDS T HAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTA NCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WE RE A MAGIC FORMULA; IF THE JUDGEMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION O F THE TRIBUNAL. 6.1 FURTHER, IN THE CASE OF CIT VS. RAMESH ELECTRI C AND TRADING CO. 203 ITR 497(BOM.) WHEREIN IT WAS HELD THAT:- IT IS AN ACCEPTED POSITION THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDER UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO R ECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UNDER SEC.254(2) CAN BE EXERCISED ONL Y WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIO US AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRED TO BE ESTABLISHED BY ARGUMENT AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY C ONCEIVABLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDE R AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGEMENT. THE TRIBUNAL CAN NOT, IN THE EXERCISE O F ITS POWER OF MP NO.45/MDS./2017 :- 9 -: RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES W HICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. 6.2 SIMILAR VIEW WAS FORTIFIED IN THE CASE OF SHAK TI SAVANTA VS. ITO (1983) 5 ITD 713 (BOM)(TM) WHERE IT HAS BEEN HELD AS UNDER : ' IT IS NOT ALWAYS NECESSARY THAT EVEN IN A SPEAKING ORDER THE TRIBUNAL SHOULD PUT DOWN EVERY ARGUMENT OF THE ASSESSEE IN A DETAILED M ANNER AS HE HAS MADE IT AND THAT TOO IN AN EQUALLY DETAILED MANNER AS HE WOULD LIKE TO HAVE IT. WHAT IS IMPORTANT IS WHETHER THE ARGUMENT HAS BEEN HEARD AN D GRASPED BY TRIBUNAL AND THE DECISION BEARS THE STAMP OF SUCH GRASP. AS REGARDS INTERPRETATION OF R. 9A, THE TRIBUNAL AD OPTED WHAT IT CONSIDERED TO BE A RATIONAL METHOD OF COMPUTATION, AND THIS COULD BE S AID EITHER TO BE AN INTERPRETATION OF THE RULES GIVEN BY THE TRIBUNAL O R CERTAINLY A VIEW WHICH IT HOLDS ON THE PARTICULAR QUESTION. MERELY BECAUSE ITS OPINION DIFFERS FROM THAT OF THE ASSESSEE, THE TRIBUNALS VIEW CANNOT BE SAID TO BE A MISTAKE EITHER OF LAW OR OF FACT. IN EFFECT WHAT THE ASSESSEE WANTS IS A REVIEW OF THE TRIBUNAL S ORDER ON THIS POINT ADOPTING THE INTERPRETATION WHICH HE WOULD GIVE TO THESE PRO VISIONS. THIS CANNOT BE DONE BY A RECTIFICATION.' 6.3 FURTHER, THE SAME VIEW WAS REITERATED IN THE C ASE OF CIT & ANR. VS. ITAT & ANR. ( (1992) 196 ITR 640 (ORI) WHERE IT HAS BEEN HELD AS UNDER : ' THE SCOPE AND AMBIT OF AN APPLICATION OF S. 254(2) OF THE IT ACT, 1961, IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE ENTIRE ORDER, WOULD MEAN PASSING A FR ESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISLATIVE INTENT. THE ORDER PASSED BY T HE TRIBUNAL UNDER S. 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED UNDER S. 254(2) EITHER ALLOWING THE AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMENDED OR REMAINING UNA MENDED IS THE EFFECTIVE ORDER FOR ALL PRACTICAL PURPOSES. THE SAME CONTINUES TO B E AN ORDER UNDER S. 254(1). THAT IS THE FINAL ORDER IN THE APPEAL. AN ORDER UNDER S. 254(2) DOES NOT HAVE EXISTENCE DE HORS THE ORDER UNDER S. 254(1). RECALLING THE OR DER IS NOT PERMISSIBLE UNDER S. 254(1). RECALLING THE ORDER AUTOMATICALLY NECESSITA TES REHEARING AND READJUDICATION MP NO.45/MDS./2017 :- 10 - : OF THE ENTIRE SUBJECT-MATTER OF APPEAL. THE DISPUTE NO LONGER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF R. 24 OF THE ITAT RULES, 1963, AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE.' 7. IN VIEW OF THIS, IN OUR OPINION NOW CONSIDERATI ON OF ARGUMENTS OF THE LD.A.R IS AMOUNT IS REVIEW OF EARL IER ORDER OF TRIBUNAL, WHICH IS NOT PERMITTED U/S.254(2) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THIS ARGUMENT OF THE ASSES SEES COUNSEL. 8. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON 30 TH OCTOBER, 2017, AT CHENNAI. SD/ - SD/ - ( !' #$ ) (GEORGE MATHAN) ) / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER $ / CHENNAI %& / DATED: 30 TH OCTOBER, 2017. K S SUNDARAM ' ( )* + *' / COPY TO: 1 . / APPELLANT 3. ' ' , () / CIT(A) 5. */0 12 / DR 2. / RESPONDENT 4. ' ' , / CIT 6. 034 5 / GF