M/s Anand Transport Company, Bhopal V. The ACIT, 3(1), Bhopal

MA 57/IND/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3201 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-06-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 10-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: SHRIGIRISHAGRAWAL
• Keywords: Question of law; Procedural lapse
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER MA NOS. 55 TO 57/IND/2013 ARISING OUT OF IT(SS) A. NOS. 258 TO 260/IND/2012 A.YS. 2002-03 TO 2204-05 M/S ANAND TRANSPORT CO.PVT. LTD BHOPAL PAN AAIFA 4711A ::: APPLICANT VS. ASSTT.COMMR. OF INCOME TAX 3(1) BHOPAL ::: RESPONDENT APPLICANT BY SHRIGIRISHAGRAWAL RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 10.7.2015 DATE OF PRONOUNCEMENT 1 3 .7.2015 O R D E R PER SHRI B.C. MEENA, AM THE ASSESSEE HAS FILED THESE MISCELLANEOUS APPLICATIONS ON THE GROUND THAT THE ASSESSEE HAD TAKEN TH E 2 FOLLOWING COMMON GROUND IN ALL THE APPEALS (IT (SS) A. NOS. 258 TO 260/IND/2012) :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ORDER PASSED BY ASSESSING OFFICER U/S 153C R.W.S. 143(3) WHICH WAS ILLEGAL, INVALID AND UNTENABLE IN LAW. 2. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS GROUND WAS TAKEN BY THE ASSESSEE I N ALL THESE THREE YEARS. BESIDES THIS, FACTS IN BRIEF WERE SUBMITTED ON 31.7.2013. THE SUBMISSION OF THE ASSESS EE WAS THAT THE RETURNS WERE FILED BY THE ASSESSEE IN THE STATUS OF FIRM IN RESPONSE TO NOTICE TO THE FIRM. TH E ASSESSMENTS WERE MADE BY THE ASSESSING OFFICER IN THE STATUS OF INDIVIDUAL. THERE WAS NO ACTION TAKEN UNDER ANY NOTICES IN THESE PROCEEDINGS AGAINST SHRI MOHD. YUSUF INDIVIDUAL. THE ASSESSING OFFICER TAKING NOTE OF THE RETURN, 3 CONSCIOUSLY HELD THAT HE MADE THE ASSESSMENT IN THE CAPACITY OF INDIVIDUAL. IT WAS ARGUED THAT THE ASSESSMENTS WERE BAD IN LAW IN VIEW OF VARIOUS DECISIONS QUOTED B Y THE ASSESSEE. HOWEVER, NO SPECIFIC DECISION WAS GIVEN BY THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE, THERE FORE, PRAYED THAT THIS GROUND MAY BE DECIDED NOW. 3. THE ASSESSEE HAS ALSO FILED WRITTEN SUBMISSIONS WHI CH READ AS UNDER :- A) MOST HUMBLY SUBMITTING, GROUND NO. 01 IN ALL THE THREE APPEALS REMAINED UN-ADJUDICATED AS TO THE ASSESSMENT MADE BY LD. AO WAS NEITHER QUASHED BY HOLDING IT TO BE A NULLITY NOR HELD TO BE JUSTIF IED AND ENFORCEABLE THOUGH THE ISSUE WAS GLARINGLY APPARENT FROM RECORDS AND OBSERVATIONS OF THE HONBLE TRIBUNAL. B) APPELLANT FILED ITS RETURNS FOR THE 3 YEARS IN THE STATUS OF FIRM (PB 119 TO 129) 4 C) LD. AO CONSCIOUSLY HELD THAT HE MADE THE ASSESSMENT AS AN INDIVIDUAL. D) GROUND NO. 01 WAS ELABORATED TO SPECIFY THE ISSUE BY ADDING VIDE SUBMISSION DATED 23.07.2013 IN RESPECT OF STATUS AND NON SEIZURE OF ANY DOCUMENT/ASSETS ETC. BELONGING TO THE APPELLANT AND OTHERWISE ALSO. E) THE ABOVE ISSUE WAS ARGUED AND WRITTEN SUBMISSION WAS MADE IN THE SYNOPSIS ON RECORD IN THE COURSE OF HEARING. THE SAME HAS BEEN REPRODUCED IN THE OPERATIVE PORTION OF THE IMPUGNED ORDER AT PAGE 25 PARA 31 32. F) HONBLE TRIBUNAL FOUND, FROM THE RECORD, THAT THE ASSESSEE M/S. ANAND TRANSPORT CO. IS A PARTNERSHIP FIRM WHICH EXISTED IN THE INCOME TAX RECORDS. PAGE 29 PARA 33 5 G) FROM THE FINDING GIVEN AT PAGE 30 PARA 33, IT IS CLEAR THAT THE DECISION ON GROUND NO. 01 REMAINED TO BE GIVEN. H) NO FINDING GIVEN ON GROUND NO. 01 AS THE ASSESSMENT MADE BY LD. AO WAS NEITHER QUASHED BY HOLDING IT TO BE A NULLITY NOR HELD TO BE JUSTIF IED AND ENFORCEABLE. HENCE, A MISTAKE APPARENT FROM RECORD WHICH OUGHT TO BE RECTIFIED. I) ON PAGE 30, HONBLE TRIBUNAL FOUND NO INFIRMITY IN THE ORDER OF CIT(A) WHO DIRECTED THE AO TO ASSESS THE INCOME IN THE HANDS OF ASSESSEE FIRM ON SUBSTANTIVE BASIS. HOW THIS DIRECTION BE GIVEN AN EFFECT AS NO ASSESSMENT ORDER EXISTS FOR THE ASSESSEE FIRM. J) WITH UTMOST HUMILITY, IT IS SUBMITTED THAT THE PURPOSE OF THE HONBLE TRIBUNAL IS TO RENDER JUSTIC E AND NOT TO NEGATE IT. SECTION 254(2) SPECIFICALLY 6 EMPOWERS THE TRIBUNAL TO RECTIFY ANY APPARENT MISTAKE IN AN ORDER PASSED BY IT. IT IS THE BASIC PRINCIPLE OF JURISPRUDENCE THAT IF THERE IS A MISTA KE COMMITTED BY THE COURT OR THE TRIBUNAL, IT NEEDS TO BE RECTIFIED AS NO ONE SHOULD SUFFER OR COME TO GRI EF ON ACCOUNT OF THE MISTAKE COMMITTED BY THE COURT. EVEN THE RULES OF PROCEDURE AND TECHNICALITIES SHOULD NOT COME IN THE WAY IN RENDERING THE JUSTICE TO PARTIES BY CORRECTING THE MISTAKES COMMITTED BY THE COURT OR THE TRIBUNAL. RECTIFICATION OF AN ORDE R STEMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE I S ABOVE ALL. K) RELIANCE IS PLACED ON THE FOLLOWING DECISIONS WHICH SUPPORTS THE SUBMISSION OF THE APPELLANT 1) VIJITRAJPATNI [2008] 175 TAXMAN 154 (MP) - TRIBUNAL REJECTED ASSESSEES APPEAL ON GROUND THAT NO SPECIFIC GROUND HAD BEEN ADVANCED WITH REGARD TO 7 MAINTAINABILITY OF ASSESSMENT UNDER SECTION 158BC - ASSESSEE FILED INSTANT APPEAL AGAINST SAID ORDER AND SUBMITTED THAT AN ERROR HAD CREPT IN ORDER OF TRIBUNAL INASMUCH AS IN GROUNDS OF APPEAL, SAID ISSUE HAD BEEN RAISED - ASSESSEEFURTHER SUBMITTED THAT HE HAD SUBMITTED A WRITTEN NOTE WHEREIN EMPHASIS HAD BEEN LAID ON ASPECT THAT ASSESSMENT MADE UNDER SECTION 158BC WAS NOT MAINTAINABLE IN VIEW OF PROVISIONS CONTAINED UNDER SECTION 132A AND SAID WRITTEN NOTE HAD BEEN BROUGHT ON RECORD AND THEREAFTER, ORDER OF TRIBUNAL CAME TO BE PASSED - WHETHER IN VIEW OF ABOVE FACTS, IT WAS QUITE CLEAR THAT TRIBUN AL HAD NOT ADJUDICATED ON GROUNDS RAISED BY ASSESSEE AND, THEREFORE, MATTER WAS TO BE REMITTED BACK TO TRIBUNAL SPECIFICALLY IN THAT REGARD - HELD , YES 8 2) MITHALAL ASHOK KUMAR [1987] 32 TAXMAN 370 (MP) HELD THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT FROM THE ORIGINAL ORDER OF THE TRIBUNAL DATED 15-1-1982 IT IS APPARENT THAT THOUGH THE ASSESSEE HAD PLACED ALL THE MATERIAL ON RECORD ON THE BASIS OF WHICH SUBMISSIONS WERE ALSO MADE, THE TRIBUNAL EVEN AFTER QUOTING THOSE POINTS RAISED HAD NOT AT ALL TAKEN INTO CONSIDERATION CERTAIN RELEVANT FACTS AND MATERIAL WHICH WAS ON RECORD AND CONSEQUENTLY, WHEN THESE MISTAKES WERE POINTED OUT BY MOVING THE APPLICATION FOR RECTIFICATION UNDER SECTION 254(2), THE TRIBUNAL WA S SATISFIED AND CONVINCED THAT IT HAD REALLY COMMITTED MISTAKES IN DISMISSING THE APPEAL BY NOT PROPERLY LOOKING INTO THE RECORD AS ALSO THE MATERIAL PRODUCED BY THE ASSESSEE IN THIS CONNECTION. 9 THERE BEING NO QUESTION OF LAW AS SUCH BEING INVOLVED, THE PROPOSED QUESTION AS SUGGESTED BY THE REVENUE BEING PURELY A QUESTION OF FACT. 3) S.K. GUPTA [2010] 327 ITR 267 (ALLAHABAD) - WE FIND THAT UNDER SECTION 254(2) OF THE ACT THE TRIBUNAL HAS POWER TO RECTIFY THE MISTAKES WHICH ARE APPARENT ON THE RECORD. ADMITTEDLY, IN THE PRESENT CASE, THE MISTAKES HAD CREPT IN THE ORDER, THEREFORE, THE TRIBUNAL COULD HAVE CORRECTED IT. IF THE MISTAKES, WHICH HAVE BEEN POINTED OUT, GO TO THE ROOT OF THE MATTER, IT IS THE DISCRETION OF THE TRIBUNAL TO CORRECT THE MISTAKES IN THE FACTS OF TH E JUDGMENT/ORDER, OPERATIVE PORTION OF THE ORDER OR HEAR THE APPEAL DE NOVO. THE TRIBUNAL, HAVING EXERCISED ITS DISCRETION TO HEAR THE APPEAL DE NOVO CANNOT BE SAID TO HAVE EXERCISED THE POWER WITHOUT JURISDICTION. 10 4) LAXMI ELECTRONIC CORPN. LTD. [1991] 54 TAXMAN 515 (ALL) - WHETHER, IN A CASE WHERE TRIBUNAL FAILS OR OMITS TO DEAL WITH AN IMPORTANT CONTENTION AFFECTING MAINTAINABILITY/MERITS OF APPEAL, IT MUST BE DEEMED TO BE A MISTAKE APPARENT FROM RECORD, WHICH EMPOWERS TRIBUNAL TO REOPEN APPEAL AND RECTIFY SAME IF IT IS SO SATISFIED - HELD, YES WORDS AND PHRASES - EXPRESSION 'RECORD' OCCURRING IN SECTION 254(2) OF THE INCOME-TAX ACT, 1961. 5) C.N. ANANTHRAM [2004] 135 TAXMAN 477 (KAR) - WHETHER OBJECT OF POWER CONFERRED UNDER SECTION 254(2) IS TO RECTIFY MISTAKES APPARENT ON RECORD AND, THEREFORE, TRIBUNAL BEFORE IT EXERCISES POWER UNDER SECTION 254(2) MUST REFER TO MATERIALS ON RECORD WHICH WERE NOT CONSIDERED OR WERE MISREAD WHICH LED TO PASSING OF A PATENTLY WRONG ORDER UNDER SECTION 254(1) - HELD, YES 11 6) RAMESH CHAND MODI [2001] 116 TAXMAN 123 (RAJ) - ONCE A MISTAKE ON THE FACE OF THE RECORD IS ESTABLISHED, WHAT ORDER SHOULD FOLLOW TO CORRECT THAT MISTAKE SHALL ALWAYS DEPEND ON THE FACTS AND CIRCUMSTANCES REQUIRING TO RECTIFY THE MISTAKE. IF THE MISTAKE IS ONE WHICH REQUIRES DETERMINATION OF SOME UNDECIDED ISSUE BECAUSE IT HAS NOT BEEN DECIDED THOUGH RAISED, THE PROCEDURE THAT WOULD FOLLOW THE DISCOVERY OF SUCH MISTAKES IS TO RECALL THE ORDER, AND DECIDE THE CASE AFRESH OR TO DECIDE THAT ISSUE AFTER AFFORDING AN OPPORTUNITY OF HEARIN G TO PARTIES CONCERNED AND PASS A FRESH ORDER IN THE LIGHT OF FINDING ON SUCH ISSUE. THE ORDER UNDER SECTION 254(2) IS NOT CONFINED TO ARITHMETICAL OR CLERICAL MISTAKE, NOR ONLY TO CORRECT SUBSTANTIVE MISTAKES BUT ALSO TO PROCEDURAL MISTAKES. 12 WHERE A TRIBUNAL FAILS TO NOTICE QUESTION RAISED BEFORE IT INADVERTENTLY UNDER ANY MISAPPREHENSION, IN CORRECTING SUCH ERROR BY RECALLING THE ORDER MAD E WITHOUT DECIDING SUCH QUESTION WHICH GOES TO ROOT OF THE MATTER FOR DECIDING THE SAME APPROPRIATELY FALLS IN SUCH CATEGORY OF PROCEDURAL MISTAKES WHICH SUCH TRIBUNAL MUST CORRECT EX DEBITOJUSTITIAE, EVEN IN THE ABSENCE OF ANY POWER. 7) MAYUR RECREATIONAL DEV. SERVICES LTD. [2009] 313 ITR 190 (DELHI) - WHERE ASSESSEES GRIEVANCE WAS THAT ORDER HAD BEEN PASSED BY TRIBUNAL WITHOUT CONSIDERING ALL MATERIAL ON RECORD, THOUGH TRIBUNAL WAS NOT COMPETENT TO RECALL SUCH ORDER UNDER SECTION 254(2) MATTER WAS TO BE REMANDED TO TRIBUNAL TO HEAR PARTIES AND ARRIVE AT A DECISION AFRESH [ASSESSMENT YEAR 1992-93] [REMANDED] 13 8) ON APPLICABILITY OF SECTION 292B: IN THE CASE OF SPICE INFOTAINMENT LTD. V. CIT [IT APPEAL NOS. 475 & 476 OF 2011, DATED 3-8-2011] THE DELHI HIGH COURT HAS, AFTER CONSIDERING THE VARIOUS PROVISIONS OF THE INCOME-TAX ACT AS WELL AS CERTAIN DECISIONS OF THE APEX COURT AND OTHER HIGH COURTS, CLEARLY HELD THAT THE FRAMING OF ASSESSMENT AGAINST THE NON- EXISTING ENTITY/PERSON GOES TO THE ROOT OF THE MATT ER WHICH IS NOT A PROCEDURAL IRREGULARITY, BUT, A JURISDICTIONAL DEFECT AS THERE CANNOT BE ANY ASSESSMENT AGAINST THE DEAD PERSON. THE ABOVE DECISION HAS BEEN FOLLOWED BY HONBLE KARNATAKA HIGH COURT IN THE CASE OF INTEL TECHNOLOGY INDIA (P.) LTD. [2015] 57 TAXMANN.COM 159 BY HOLDING THAT FRAMING OF ASSESSMENT IN NAME OF NON-EXISTENT ENTITY IS NOT A PROCEDURAL 14 IRREGULARITY WHICH CAN BE CURED UNDER SECTION 292B. IN THE INSTANT CASE, LD. AO FRAMED THE ASSESSMENT ORDER WITH THE STATUS OF THE ASSESSEE AS INDIVIDUAL BY NOTING THAT ASSESSEE IS PROPRIETORSHIP CONCERN OF MOHD. YOUSUF S/O SHRIMOHD.SHAFIQUE WHEN THE RETURNS WERE FILED BY THE ASSESSEE IN THE STATUS OF FIRM WHICH HAS BEEN CONFIRMED BY THE HONBLE TRIBUNAL IN THE IMPUGNED DECISION ITSELF AT PAGE 29 PARA 33. ACCORDINGLY, NO INDIVIDUAL IN THE NAME OF ANAND TRANSPORT CO. AS A PROPRIETORY CONCERN OF MOHD.YOUSUF EXISTED FOR THE THREE ASSESSMENT YEARS UNDER APPEAL. THE ASSESSMENTS MADE WERE A NULLITY. NO FINDING TO THIS EFFECT HAS BEEN GIVEN IN THE IMPUGNED ORDER VIS-A-VIS SPECIFIC GROUND NO. 01 15 WHICH WAS ELABORATED IN SPECIFIC TERMS VIDE SUBMISSION DATED 23 RD JULY 2013. CONSIDERING THE ABOVE SUBMISSION AND THE DETAILED MISCELLANEOUS APPLICATION ALREADY ON RECORD, SUITABLE RELIEF MAY PLEASE BE GRANTED, FOR WHICH YOUR APPELLANT SHALL EVER REMAIN OBLIGED . 4. ON THE OTHER HAND, THE LD. DR DREW OUR ATTENTION T O PAGE 33 OF THE TRIBUNALS ORDER AND SUBMITTED THAT THE TRIBUNAL IN ITS ORDER HAS SPECIFICALLY HELD THAT THERE WAS EXISTENCE OF THE FIRM AND MR. MOHD. YUSUF IS THE WOR KING PARTNER IN THE FIRM, THEREFORE, IT IS THE DUTY OF TH E ASSESSEE TO PRODUCE THE DETAILS ABOUT PARTNERS OF THE FIRM EXCE PT SHRI MOHD. YUSUF. THE ASSESSING OFFICER ASSESSED THE ENTIRE INCOME OF THE FIRM IN THE HANDS OF MOHD. YUSU F IN HIS INDIVIDUAL CAPACITY. THE TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO ASSESS THE INCOME IN THE HANDS O F THE ASSESSEE FIRM ON SUBSTANTIVE BASIS. THEREFORE, THE TRI BUNAL 16 HAS ALREADY DEALT WITH THIS ISSUE. THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER AND THE MISCELLANEOUS APPLICATIONS MAY BE DISMISSED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT IN PARA 33 OF ITS ORDER, THE TRI BUNAL HAS DEALT WITH GROUND NO. 1 TAKEN BY THE ASSESSEE WHICH IS COMMON IN ALL APPEALS, WHICH READS AS UNDER :- 33. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECORDS PERUSED. WE HAD ALSO DELIBERATED ON THE CASE LAWS CITED BY THE LD. AUTHORIZED REPRESENTATIVE WITH REFERENCE TO THE FACTUAL MATRIX OF THE CASE. FROM THE RECORD, WE FOUND THAT THE ASSESSEE M/S. ANAND TRANSPORT COMPANY IS A PARTNERSHIP FIRM WHICH EXISTED IN THE INCOME TAX RECORDS. THIS FIRM WAS REGISTERED WITH THE REGISTRAR OF FIRM ON 1.4.2001 AND HAS REGULARLY FILED RETURN OF ITS INCOME FOR THE 17 ASSESSMENT YEARS 2002-03 TO 2005-06. BECAUSE OF THE FACT THAT THE ASSESSEE WAS UNABLE TO PRODUCE DETAILS ABOUT THE PARTNERS OF THE FIRM EXCEPT SHRI MOHD. YUSUF, THE ASSESSING OFFICER ASSESSED THE ENTIRE INCOME OF THE FIRM IN THE HANDS OF MOHD YUSUF, IN HIS INDIVIDUAL CAPACITY. AS PER OUR CONSIDERED VIEW, MERELY BECAUSE MOHD. YUSUF WAS WORKING PARTNER, THE EXISTENCE OF THE FIRM CANNOT BE DENIED, MORE PARTICULARLY, WHEN -: 30: - 30 DEPARTMENT ITSELF HAS LEVIED PENALTY ON THE SAID ASSESSEE FIRM FOR THE ASSESSMENT YEAR 2004-05 FOR WHICH ASSESSEE WAS IN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL PASSED ORDER ON 31.3.2011. THE LD. CIT(A) HAS ALSO OBSERVED THAT DEPARTMENT HAS FILED APPEAL AGAINST THE ORDER OF I.T.A.T., WHICH IS PENDING DISPOSAL. IN VIEW OF THESE FACTS, THE LD. CIT(A) HELD 18 THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ASSESSING FIRMS INCOME ON SUBSTANTIVE BASIS IN THE CASE OF MOHD YUSUF AND ON PROTECTIVE BASIS IN THE HANDS OF ASSESSEE FIRM. ACCORDINGLY, HE DIRECTED THE ASSESSING OFFICER TO ASSESS THE INCOME IN THE HANDS OF ASSESSEE FIRM ON SUBSTANTIVE BASIS. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). 6. FROM THE ABOVE IT IS CLEAR THAT THE TRIBUNAL HAS DECIDED THE ISSUE BY A SPEAKING ORDER. NOW THE TRIBUN AL HAS TAKEN ONE DECISION IN RESPECT OF EXISTENCE OF THE FIRM AND IT IS NOT A MISTAKE ONT THE FACE OF RECORD. WE FIND THAT THE POWER OF THE TRIBUNAL TO REVIEW ITS ORDER HAS BEE N EXPLAINED BY HON'BLE MADRAS HIGH COURT IN THE CASE OF EXPRESS NEWSPAPERS LTD. VS. DCIT (2010) 186 TAXMAN 11 1 (MAD.). THE RELEVANT PORTION OF THE SAID JUDGMENT IS REPRODUCED AS UNDER :- 19 FROM THE VARIOUS JUDGMENTS OF THE SUPREME COURT ABOVE REFERRED TO AND OTHER HIGH COURTS, IT IS CLEAR THAT THE TRIBUNALS POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. WHAT CAN BE TERMED AS MISTAKE APPARENT ? MISTAKE IN GENERAL MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING; IT IS AN ERROR; A FAULT, AMISUNDERSTANDING, A MISCONCEPTION. MISTAKE IN TAXATION LAWS HAS A SPECIAL SIGNIFICANCE. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IS THIN AND INDISCERNIBLE. APPARENT MEANS VISIBLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVIOUS PLAIN, OPEN TO VIEW, EVIDENT, APPEARS, APPEARING AS REAL AND TRUE, CONSPICUOUS, 20 MANIFEST, SEEMING. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EXPENDITURE-FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. IF SUCH A MISTAKE APPARENT ON THE FACE OF RECORD IS BROUGHT TO THE NOTICE, SECTION 254(2) EMPOWERS THE TRIBUNAL TO AMEND THE ORDER PASSED UNDER SECTION 254(1). AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER. WHAT IS MISTAKE APPARENT ON THE FACE OF THE RECORD OR WHERE DOES A MISTAKE CEASE TO BE MERE MISTAKE AND BECOME MISTAKE APPARENT ON THE FACE OF THE RECORD IS RATHER DIFFICULT TO DEFIN E PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY NATURE AND IT MUST BE DISCERNIBLE FROM THE FACTS 21 OF EACH CASE BY JUDICIOUSLY TRAINED MIND. MERE EXISTENCE OF A MISTAKE OR ERROR WOULD NOT PER SE RENDER THE ORDER AMENABLE FOR RECTIFICATION, BUT SUCH A MISTAKE MUST BE ONE WHICH MUST BE MANIFEST ON THE FACE OF THE RECORD. WE RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HON'B LE MADRAS HIGH COURT (SUPRA), ARE OF THE VIEW THAT THE SC OPE AND AMBIT OF APPLICATION OF SECTION 254(2) OF THE ACT I S VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF T HE MISTAKE APPARENT FROM RECORD. THE RECALLING OF THE ENTI RE ORDER WOULD MEAN PASSING AS FRESH ORDER. THAT DOES NOT APPEAR TO BE LEGISLATIVE INTENT. WHAT THE TRIBUNAL IS ENTITLED TO DO IN EXERCISE OF POWER U/S 254(2) IS T O RECTIFY AN APPARENT MISTAKE AVAILABLE FROM RECORD AND NOT TO REVIEW ITS OWN ORDER OR TO RE-WRITE A FRESH JUDGMENT. WE F IND THAT THE TRIBUNAL HAS NO INHERENT POWER OF REVIEW. THEREF ORE, WE 22 FIND NO MERIT IN THESE MISCELLANEOUS APPLICATIONS FIL ED BY THE ASSESSEE AND DISMISS THE SAME. 7. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS F ILED BY THE ASSESSEE STAND DISMISSED. PRONOUNCED IN OPEN COURT ON 13 TH JULY, 2015 SD SD (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 13 TH JULY, 2015 DN/-1010