IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA NOS.47, 48 AND 49/SRT/2018 [IN ITA NOS.2196/AHD/2015, 2197/AHD/2015 & 339/AHD/2016/SRT] ASSESSMENT YEARS: (2010-11, 2011-12 & 2012-13) (VIRTUAL COURT HEARING) SHRI BHARATBHAI P MALDE, C/O. B.B ENTERPRISES, 402, AMAR CHAMBERS, VALSAD-396001. VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE VALSAD. ./ ./ PAN/GIR NO.: ABAPM1579K (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI S D CHHEDA - AR REVENUE BY : MS ANUPAMA SINGLA - SR. DR / DATE OF HEARING : 11/12/2020 /DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: BY WAY OF THE THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 10.08.2018. 2. SINCE, THE ISSUES INVOLVED IN ALL THE MISCELLANEOUS APPLICATIONS ARE COMMON AND IDENTICAL; THEREFORE, THESE MISCELLANEOUS APPLICATIONS HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. FOR THE SAKE OF CONVENIENCE, THE FACTS AND CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION NO.47/SRT/2018, FOR AY.2010-11 IN THE CASE OF SHRI BHARAT P. MALDE HAS BEEN CONSIDERED FOR DECIDING THESE MISCELLANEOUS APPLICATIONS EN MASSE. 3. THE CASES OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATIONS IS THAT ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, HOWEVER THE TRIBUNAL OBSERVED THAT DEDUCTION UNDER SECTION 80IB SHALL BE CALCULATED ON THE GAINS DERIVED FOR SUCH UNDERTAKING AND SAME CANNOT EXCEED THE PROFIT DERIVED FOR SAID UNDERTAKING. PAGE | 2 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE THE SAID OBSERVATION OF THE TRIBUNAL IS AT VARIANCE WITH DECISION OF ACIT V. GOLDMINE SHARES & STOCK FINANCE PVT. LTD. [2008] 113 ITD 209 (AHD) (SB] WHEREIN WAS HELD THAT THE DEDUCTION WOULD BE LIMITED TO GROSS TOTAL INCOME AND NOT TO PROFIT. THE TRIBUNAL, WHILE ADJUDICATING THE ASSESSEE`S APPEAL, HAS NOT CONSIDERED THE DECISION IN THE CASE OF GOLDMINE SHARES & STOCK FINANCE PVT. LTD.(SUPRA), HENCE THIS IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL WHICH NEEDS RECTIFICATION. 4 . SHRI S.D. CHHEDA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE THE BENCH THAT THE ISSUE IN THE MISCELLANEOUS APPLICATION IS DEDUCTION U/S 80IB(10) OF THE ACT, BEING NOTIONAL CARRIED FORWARD UNABSORBED DEDUCTION, AS ELIGIBLE UNIT WAS HAVING A PROFIT AND INELIGIBLE UNIT HAVING A LOSS IN EARLIER YEAR AND WHICH IS CLAIMED IN THE CURRENT YEAR. THE TRIBUNAL IN ITS ORDER VIDE PARA 10, PAGE 6, HAD REJECTED THE ABOVE CLAIM OF THE ASSESSEE, FOR THE FOLLOWING REASONS: WE FIND THAT THE DEDUCTION UNDER SECTION 80IB SHALL BE CALCULATED ON THE GAINS DERIVED FOR SUCH UNDERTAKING AND SAME CANNOT EXCEED THE PROFIT DERIVED FOR SAID UNDERTAKING. WE ALSO OBSERVE THAT IN THE CASE OF DECISION OF ACIT V. GOLDMINE SHARES & STOCK FINANCE PVT. LTD. [2008] 113 ITD 209 (AHD) (SB ) IT HAS BEEN HELD THAT DEDUCTION WILL BE LIMITED TO GROSS TOTAL INCOME. IN OUR HUMBLE UNDERSTANDING OF PROVISIONS OF THE ACT AND CONSIDERING THE PROVISION OF SECTION 72 OF THE ACT, WE ARE OF THE VIEW THAT THE CIT (A) HAS JUSTIFIED IN REFUSING THE CLAIM OF THE ASSESSEE. THUS, LD COUNSEL ARGUED THAT ABOVE OBSERVATIONS OF THE TRIBUNAL AND DECISION OF THE TRIBUNAL IS IN VARIANCE WITH THE BINDING JUDGEMENT OF ACIT V. GOLDMINE SHARES & STOCK FINANCE PVT. LTD. [2008] 113 ITD 209 (AHD) (SB ) AND THEREFORE THIS CONSTITUTES MISTAKE APPARENT FROM RECORD WHICH REQUIRES RECTIFICATION. 5. MS ANUPAMA SINGLA, LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE SUBMITTED BEFORE US THAT TRIBUNAL HAS DISCUSSED IN ITS ORDER, THE DECISION OF ACIT VS. GOLDMINE SHARES & STOCK FINANCE PVT. LTD. [2008] 113 ITD 209 (AHD) (SB) AND HAS ALSO CONSIDERED THE OTHER FACTS OF THE ASSESSEE AND THEN ADJUDICATED THE ASSESSEES ISSUE UNDER CONSIDERATION, THEREFORE THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. IT IS NOT THE CASE OF THE ASSESSEE THAT DECISION CITED BY THE ASSESSEE HAS NOT BEEN CONSIDERED BY THE TRIBUNAL, THAT IS, THE TRIBUNAL DID CONSIDER THE DECISION CITED BY THE ASSESSEE DURING THE HEARING IN THE LIGHT OF THE ASSESSEE`S FACTS. THEREFORE, TO RECTIFY THE ORDER OF THE TRIBUNAL IN THIS SCENARIO WOULD BE TANTAMOUNT TO REVIEW THE PAGE | 3 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE ORDER OF THE TRIBUNAL, WHICH IS AGAINST THE SPRIT OF SECTION 254(2) OF THE ACT. THEREFORE, MS ANUPAMA SINGLA, LD DR, HAS STRONGLY OPPOSED THE MOVE OF THE ASSESSEE AND PLEADED THAT SINCE EACH AND EVERY ASPECT OF THE MATTER HAS BEEN CONSIDERED BY THE TRIBUNAL, WHILE DECIDING THE ASSESSEE`S APPEAL AND THEREFORE THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL, HENCE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SHOULD BE DISMISSED. 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE SUBMISSIONS PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON. WE FIND MERIT IN THE SUBMISSIONS OF MS ANUPAMA SINGLA, LD DR FOR THE REVENUE, AS SHE HAS RIGHTLY POINTED OUT THAT TRIBUNAL IN ITS ORDER DATED 10.08.2018 HAS CONSIDERED THE JUDGEMENT OF ACIT VS. GOLDMINE SHARES & STOCK FINANCE PVT. LTD. [2008] 113 ITD 209 (AHD) (SB) VIDE PARA NO.4 AND PARA 10 OF THE TRIBUNAL ORDER. AT THE COST OF REPETITION, WE REPRODUCE AN IMPORTANT PART OF PARA 10 OF THE TRIBUNAL ORDER, WHICH READS AS FOLLOWS: WE FIND THAT THE DEDUCTION UNDER SECTION 80IB SHALL BE CALCULATED ON THE GAINS DERIVED FOR SUCH UNDERTAKING AND SAME CANNOT EXCEED THE PROFIT DERIVED FOR SAID UNDERTAKING. WE ALSO OBSERVE THAT IN THE CASE OF DECISION OF ACIT V. GOLDMINE SHARES & STOCK FINANCE PVT. LTD. [2008] 113 ITD 209 (AHD) (SB ) IT HAS BEEN HELD THAT DEDUCTION WILL BE LIMITED TO GROSS TOTAL INCOME. IN OUR HUMBLE UNDERSTANDING OF PROVISIONS OF THE ACT AND CONSIDERING THE PROVISION OF SECTION 72 OF THE ACT, WE ARE OF THE VIEW THAT THE CIT (A) HAS JUSTIFIED IN REFUSING THE CLAIM OF THE ASSESSEE. THUS, IT IS NOT THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION THAT TRIBUNAL HAS NOT CONSIDERED THE JUDGMENT CITED BY THE ASSESSEE DURING THE COURSE OF HEARING. IT IS NOT THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION THAT ENTIRE FACTS OF THE ASSESSEE WERE NOT CONSIDERED BY THE TRIBUNAL. 7. AFTER TAKING INTO ACCOUNT THE SUBMISSIONS OF THE LD COUNSEL, WHICH IS MENTIONED IN THE MISCELLANEOUS APPLICATION ITSELF, WE HAVE OBSERVED THAT CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS THAT TRIBUNAL HAS CONSIDERED THE DECISION OF ACIT VS. GOLDMINE SHARES & STOCK FINANCE PVT. LTD (SUPRA) CITED BY THE ASSESSEE DURING THE HEARING AND ALSO CONSIDERED THE ENTIRE FACTS OF THE ASSESSEE`S CASE, BUT REACHED ON THE WRONG CONCLUSION WHICH IS AGAINST THE ASSESSEE. NOW, THE QUESTION BEFORE US IS THAT WHETHER IN THIS SCENARIO THE TRIBUNAL ORDER DATED 10.08.2018 PAGE | 4 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE CONTAINED A MISTAKE APPARENT WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT? BEFORE WE PROCEED TO ADJUDICATE THIS ISSUE, LET US FIRST CONSULT THE PROVISIONS OF SECTION 254(2) OF THE ACT, WHICH READS AS FOLLOWS: ORDERS OF APPELLATE TRIBUNAL. 254. (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING] OFFICER. PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD : [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTOBER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES.] HAVING GONE THROUGH SUB-SECTION 2 OF SECTION 254 OF THE ACT, AS NOTED ABOVE, WE OBSERVED THAT ANY MISTAKE APPARENT FROM THE RECORD CAN BE RECTIFIED. THE PLAIN MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EX-FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. THUS, SECTION 254(2) OF THE ACT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. THEREFORE, AMENDMENT OF AN ORDER UNDER SECTION 254(2) OF THE ACT, DOES NOT MEAN ENTIRE OBLITERATION OF ORDER ORIGINALLY PASSED BY THE TRIBUNAL AND ITS SUBSTITUTION BY A NEW ORDER OF TRIBUNAL, THIS IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. POWER TO RECTIFY AN ORDER, UNDER SECTION 254(2) OF THE ACT IS EXTREMELY LIMITED AND IT DOES NOT EXTEND TO CORRECTING ERRORS OF LAW, OR RE- APPRECIATING FACTUAL FINDINGS. SHRI S.D. CHHEDA, LEARNED COUNSEL, ARGUED AND DID A LOT OF DEBATE BEFORE THE BENCH STATING THAT ALTHOUGH THE TRIBUNAL HAS CONSIDERED THE FACTS OF THE ASSESSEE`S CASE AND ALSO CONSIDERED THE BINDING JUDGEMENT IN THE CASE OF ACIT V. GOLDMINE SHARES & STOCK FINANCE PVT. LTD(SUPRA), BUT REACHED ON WRONG CONCLUSION WHICH IS AGAINST THE ASSESSEE. HAD THE TRIBUNAL CONSIDERED THE BINDING JUDGEMENT IN THE CASE OF ACIT V. PAGE | 5 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE GOLDMINE SHARES & STOCK FINANCE PVT. LTD(SUPRA), IN RIGHT PERSPECTIVE, THE CONCLUSION/DECISION REACHED BY THE TRIBUNAL WOULD HAVE BEEN IN FAVOUR OF ASSESSEE. 8. WE DO NOT AGREE WITH THE LD COUNSEL, AS THE TRIBUNAL HAS CONSIDERED THE DECISION OF ACIT VS. GOLDMINE SHARES & STOCK FINANCE PVT. LTD(SUPRA) CITED BY THE ASSESSEE DURING THE HEARING AND ALSO CONSIDERED THE ENTIRE FACTS OF THE ASSESSEE`S CASE, AND REACHED ON THE CONCLUSION/DECISION. THIS CONCLUSION IS THE RATIO OF THE DECISION OF THE TRIBUNAL WHICH CANNOT BE REVIEWED OR RECTIFIED BY THE TRIBUNAL. THE SAID CONCLUSION/DECISION (RATIO) MAY BE REVIEWED OR RECTIFIED BY THE HON`BLE HIGH COURT OR HON`BLE SUPREME COURT. THE TRIBUNAL CAN NOT SIT AGAIN TO REVIEW OR TO EXAMINE ITS OWN CONCLUSION, AS IT IS NOT PERMITTED BY THE PROVISIONS OF SECTION 254(2) OF THE ACT, AS NARRATED ABOVE. 9. ON THE SIMILAR FACTS, THE CO-ORDINATE BENCH OF ITAT, DELHI IN THE CASE OF PREM COLONISERS PVT. LTD. VS. ITO, WARD-14(3) [IN MA NO. 130/DEL/2012 FOR AY.2002-03] ORDER DATED 12.12.2012 HELD AS FOLLOWS: 3. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MATERIAL ON RECORD AND BEFORE REVERTING TO FACTS, IT WOULD BE APT TO CONSIDER THE RELEVANT PROVISIONS OF LAW RELATING TO SECTION 254(2). A BARE LOOK AT SECTION 254(2) OF THE ACT, WHICH DEALS WITH RECTIFICATION, MAKES 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 APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. MISTAKE MEANS TO TAKE OR 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 SECTION 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT 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 FROM 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 PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2). FURTHER, WHERE AN ERROR IS FAR FROM SELF EVIDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 254(2) IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED 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 THE FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW 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 ORDER 47, PAGE | 6 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE 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 MISTAKE 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. MISTAKE 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 ERRORS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE, ARE DISCERNED. THE WORD MISTAKE IS INHERENTLY INDEFINITE IN SCOPE, AS WHAT MAY BE A MISTAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WHICH A DULY AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE RECORD. IN ORDER TO ATTRACT THE POWER TO RECTIFY UNDER SECTION 254(2) IT IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS 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 SOMETHING WHICH APPEARS TO BE SO EX FACIE AND IT IS INCAPABLE OF ARGUMENT OR DEBATE. IT IS THEREFORE, FOLLOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNOT BE CORRECTED BY WAY OF RECTIFICATION. 4. AS IS APPARENT FROM THE DISCUSSION HELD IN THE PRECEDING PARAGRAPHS, THAT A RECTIFICATION APPLICATION CAN LIE ONLY WITH REGARD TO AN ERROR ON THE FACE OF THE RECORD WHICH HAS NOT EMERGED FROM THE MATERIAL ON RECORD AND MOREOVER, THE ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY APPARENT MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL AND IN CASE APPLICATION OF THE ASSESSEE IS ACCEPTED, IT WOULD TANTAMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL, AS HAS RIGHTLY BEEN PLEADED BY THE LD. DR, THAT REVIEWING OF THE ORDER OF THE TRIBUNAL IS NOT PERMISSIBLE AND FOR THAT PURPOSE USEFUL REFERENCE CAN BE MADE TO THE FOLLOWING DECISIONS. 4.1 THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS GOKUL CHAND AGARWAL (202 ITR 14), HAS HELD AS UNDER: SECTION 254(2) OF THE INCOME TAX ACT, 1961, EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED UNDER SECTION 254(1) TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. THE JURISDICTION 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 WHICH IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, THE EXERCISE OF THE JURISDICTION 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 AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENCE PROCEEDING UNDER SECTION 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. 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 MERITS OF THE CONTROVERSY BETWEEN THE PARTIES. SUCH REMEDY IS CERTAINLY NOT PROVIDED BY THE INCOME TAX ACT, 1961, IN RESPECT OF PROCEEDINGS BEFORE THE TRIBUNAL. PAGE | 7 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE 4.2 IN SIMILAR SITUATION, WHILE DEALING WITH THE RECTIFICATION, 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 STATUTE, 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 REVISION. 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 RECALL 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 IS NOT A MISTAKE APPARENT FROM THE RECORD. 4.3 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 EFFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS NO NEED TO STATE 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 THE 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 INCIDENTAL 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 ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE 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 THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE 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 TRIBUNAL. 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 MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD.. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE 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 EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENTS PAGE | 8 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE 4.4 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 HIGH COURT HELD AS UNDER:- THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHEN THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING ITS MIND AGAINST THE ASSESSEE, 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 SINGLE REASON IN THE WHOLE ORDER AS TO HOW THE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASONS. 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 PETITION 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 CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBLITERATE THE DISTINCTION 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 LIMITED AND NARROW. IT IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE 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 RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. 4.5 FURTHER, WE PLACE RELIANCE UPON HONBLE DELHI HIGH 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 THE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE ACT. 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 OF THE SECTION. 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 SUBSTANCE IN THE APPLICATION OF THE ASSESSEE AND DISMISS THE SAME BEING DEVOID OF ANY MERITS. 5. AS A RESULT, THIS MISC. APPLICATION FILED BY THE ASSESSEE GETS DISMISSED. 10. THUS, IT IS ABUNDANTLY CLEAR FROM THE DECISION OF THE COORDINATE BENCH IN THE CASE OF PREM COLONISERS PVT. LTD(SUPRA) THAT FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR PAGE | 9 MA NOS.47 TO 49/SRT/2018 AYS.2010-11, 2011-12 & 2012- 2013 SHRI BHARATBHAI P MALDE APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. 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 MERITS OF THE CONTROVERSY BETWEEN THE PARTIES, SUCH REMEDY IS CERTAINLY NOT PROVIDED BY SECTION 254(2) THE INCOME TAX ACT, 1961. 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 OF THE SECTION 254(2) OF THE ACT. WE NOTE THAT IN ASSESSEE`S CASE UNDER CONSIDERATION, THE TRIBUNAL HAS CONSIDERED THE DECISION OF ACIT VS. GOLDMINE SHARES & STOCK FINANCE PVT. LTD(SUPRA) CITED BY THE ASSESSEE DURING THE HEARING AND ALSO CONSIDERED THE ENTIRE FACTS OF THE ASSESSEE`S CASE, AND REACHED ON THE CONCLUSION/DECISION. THE SAID CONCLUSION, THAT IS, THE RATIO OF THE DECISION OF THE TRIBUNAL, CANNOT BE REVIEWED OR RECTIFIED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT, THEREFORE WE DISMISS ALL THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 11. IN THE RESULT, MISCELLANEOUS APPLICATIONS NOS. 47, 48 AND 49/SRT/2018 FILED BY THE ASSESSEE ARE DISMISSED. ORDER IS PRONOUNCED ON 21/12/2020, AS PER RULE 34 OF INCOME TAX APPELLATE TRIBUNAL, RULE 1963. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER LWJR /SURAT / DATE: 21/12/2020 SAMANTA, PS COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT