UNIVERSAL EDUCATION FOUNDATION, MUMBAI V. ASST DIT (E) II(2), MUMBAI

MA 584/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7543 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 07-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Charitable institution; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 195; 201; 191; 264; 254(2); 13; 153; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) MA NO. 584/MUM/2019 (ITA NO. 1097/MUM/2016) ASSESSMENT YEAR: 2011 - 12 UNIVERSAL EDUCATION FOUNDATION, 1 ST FLOOR, FILKA BUILDING, DAF A TARY ROAD, MALAD (W), MUMBAI - 400097 VS. THE ASSISTANT DIRECTOR OF INCOME TAX (EXEMPTION) - II(2), MUMBAI - 53 PAN NO. AA BCU0516D APPELLANT RESPONDENT ASSESSEE BY : MR. ANANT N. PAI, AR REVENUE BY : MR. UODAL RAJ SINGH, DR D ATE OF HEARING : 03/01/2020 DATE OF PRONOUNCEMENT : 20/03/2020 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECALL OF THE ORDER DATED 26.06.2019 PASSED BY THE ITAT F BENCH MUMBAI (ITA NO. 1097 /MUM/201 6 ) FOR THE ASSESSMENT YEAR (AY) 2011 - 12 . IN PART - I, HERE - IN - BELOW, WE MENTION THE CONTENTIONS OF THE LD. COUNSEL OF THE APPLICANT, IN PART - II, THE SUBMISSIONS OF THE LD. DEPARTMENTAL REPRESENTATIVE ( DR ) AND IN PART - III, THE REASONS FOR OUR DECISION. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 2 I 2. THE CONTENTIONS OF THE LD. COUNSEL FOLLOW THE WRITTEN SUBMISSION DATED 04.11.2019 FILED BY THE APPLICANT BEFORE THE TRIBUNAL. THEREFORE, WE REFER BELOW THE SAID WRITTEN SUBMISSION. IT IS STATED THAT THE TRIBUNAL, IN SUBSTANCE HAS GIVEN TWO FACT FINDINGS, (A) FIRSTLY, THE APPLICANT HAS RECEIVED THE CONSIDERATION OF RS.3,55,45,600/ - DURING THE YEAR ENDED 31.03.2011 BECAUSE THE PAYMENT IS EXPRESSLY CITED IN THE REGISTERED AGREEMENT DATED 19.01.2011 ; THE SUBSEQUENT ADDENDUM DATED 20.01.2011 IMPLYING THE PAYMENT WAS NOT MADE IS NOT TO BE BELIEVED AS THE ADDENDUM WAS NOT REGISTERED, (B) SECONDLY, THE APPLICANT HAS NOT EXERCISED THE OPTION AS PER EXPLANATION 2 OF SECTION 11(1) OF THE INCOME TAX ACT, 196 1 (THE ACT) ; THIS IS BECAUSE THE APPLICANT HAS STATED IN HIS SUBMISSION TO THE AO THAT SINCE THERE IS NO DEFINITE POSSIBILITY THAT RECEIPT WILL BE RECEIVED, THE CONSIDERAT ION WAS NOT TAXED IN AY 2011 - 12 . THE LD. COUNSEL SUBMITS THAT THE ABOVE TWO FINDI NGS ARE CONTRARY TO THE FACTS APART FROM RECORD ON THE GROUND THAT IT HAD SHOWN TO THE TRIBUNAL IN THE COURSE OF HEARING THAT THE CONSIDERATION OF RS.3,55,45,600/ - WAS RECEIVED IN THE FINANCIAL YEAR ENDED 31.03.2015 ; THIS RECEIPT WAS SHOWN TO THE TRIBUNAL FROM THE COPY OF THE AUDITED INCOME AND EXPENDITURE ACCOUNT OF THE APPLICANT FOR THE YEAR ENDED 31.03.2015 ; THE AMOUNT OF RS.3,55,45,400/ - IS REFLECTED IN NOTE NO. 15 (OTHER INCOMES) TO THE ACCOUNTS LEASE HOLD RIGHTS - RS.3,55,45,000/ - . IT IS STATED BY HI M THAT THIS FACT HAS BEEN LOST SIGHT BY THE TRIBUNAL IN ITS ORDER DATED 26.06.2019 AND ACCORDINGLY THIS CONSTITUTES A MISTAKE APPARENT FROM RECORD DESERVING RECTIFICATION ACTION U/S 255(2) OF THE ACT. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 3 ON THE SECOND FACT FINDING OF THE TRIBUNAL, IT IS STA TED THAT IT HAD SUBMITTED A CHART OF PROPOSITIONS, WHICH IS REPRODUCED AS UNDER : GROUND NO. 2 & 3 - PROPOSITION NO. 1: - APPELLANT HAS ADMITTEDLY NOT RECEIVED THE .SALE CONSIDERATION FOR ASSIGNMENT OF LEASE DURING THE YEAR ENDED 31 - 3 - 2011 AND IS THEREFORE ENTITLED TO EXERCISE OPTION U/S EXPLANATION 2 TO SECTION 11 (1). THIS OPTION MAY BE CONSIDERED TO HAVE BEEN EXERCISED DU RING COURSE OF ASSESSMENT PROCEEDINGS IN VIEW OF HIS SUBMISSIONS DATED 20 - 3 - 2014 TO THE LEARNED ASSESSING OFFICER - REPRODUCED ON PAGE 2 & 3 OF ASSESSMENT ORDER - MORE PARTICULARLY PARA NOS. 7 AND 8 OF THE SUBMISSIONS - PAGE 3 OF ASSESSMENT ORDER. THIS VITA L FACT HAS NOT BEEN OBSERVED IN THE ORDERS OF THE LOWER AUTHORITIES IT IS PERTINENT THAT UNDER THE LAW APPLICABLE FOR YEAR UNDER APPEAL THERE WAS NO REQUIREMENT FOR SUBMITTING OPTION IN ANY PARTICULAR PRESCRIBED FORM. THE PROVISION FOR PRESCRIBED FORM WAS INTRODUCED SUBSEQUENTLY ONLY BY FINANCE ACT 201 5 W.E.F. 1 - 4 - 2016. THE LD. COUNSEL SUBMITS THAT AT THE TIME OF HEARING, ITS CASE WAS ARGUED BEFORE THE TRIBUNAL ON EXACTLY THE SAME LINES AS STATED IN THE PROPOSITION ABOVE. IT IS FURTHER ARGUED THAT THE AP PLICANT HAD POINTED OUT TO THE TRIBUNAL THE FOLLOWING CONTENT IN ITS WRITTEN SUBMISSION MADE TO THE AO AND AS REPRODUCED ON PAGE 2 & 3 OF THE ASSESSMENT ORDER, OUGHT TO HAVE BEEN CONSIDERED EQUIVALENT TO AN OPTION EXERCISED U/S 11(1) - 7. THUS, NO AMOUNT W AS RECEIVED BY UNIVERSAL EDUCATION FOUNDATION AS ON 31 - 03 - 2011. ALSO, THERE WAS NO DEFINITE POSSIBILITY OF RECEIPT OF THE SAME IN FUTURE. THE AGREEMENT OF ASSIGNMENT WILL BE TERMINATED IF THE PAYMENT IS NOT RECEIVED IN TIME. 8. ASSESSEE IS COMMITTED TO MAK E PAYMENT IN THE YEAR OF RECEIPT. WE ARE NOT DENYING THE AGREEMENT OF ASSIGNMENT. THE RECEIPT WILL BE OFFERED FOR TAXATION IN UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 4 THE YEAR OF RECEIPT. SINCE THERE IS NO DEFINITE POSSIBILITY THAT RECEIPT WILL BE RECEIVED, THE CONSIDERATION WAS NOT TAXED IN A.Y. 2011.12. THUS THE LD. COUNSEL SUBMITS THAT THE MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL IS THAT : (A) THE ORDER OF THE TRIBUNAL ONLY REFERS TO PARA NO. 7 OF THE APPLICANT SUBMISSIONS RECORDED BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER I.E. - ' 7. THUS, NO AMOUNT WAS RECEIVED BY UNIVERSAL EDUCATION FOUNDATION AS ON 31 - 03 - 2011. ALSO, THERE WAS NO DEFINITE POSSIBILITY OF RECEIPT OF THE SAME IN FUTURE. THE AGREEMENT OF ASSIGNMENT WILL BE TERMINATED IF THE PAYMENT IS NOT RECEIVED IN TIME. (B) THE ORDER OF THE TRIBUNAL DOES NOT REFER TO THE CRUCIAL PARA NO. 8 OF THE APPLICANT'S SUBMISSIONS RECORDED BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER I.E. '8. ASSESSEE IS COMMITTED TO MAKE PAYMENT IN THE YE AR OF RECEIPT. WE ARE NOT DENYING THE AGREEMENT OF ASSIGNMENT. THE RECEIPT WILL BE OFFERED FOR TAXATION IN THE YEAR OF RECEIPT. SINCE THERE IS NO DEFINITE POSSIBILITY THAT RECEIPT WILL BE RECEIVED, THE CONSIDERATION WAS NOT TAXED IN AY 2011 - 12. ALSO IT I S STATED THAT THAT THE TRIBUNAL, IN ITS ORDER, HAS LOST SIGHT OF THE WRITINGS IN PARA NO. 8. IT IS EXPLAINED BY HIM THAT FOR THE YEAR UNDER APPEAL THERE WAS NO PROVISION IN THE EXPLANATION TO SECTION 11(1) THAT THE OPTION WAS TO BE EXERCISED IN ANY PRESCR IBED FORM OR MANNER AND ALL THAT WAS REQUIRED WAS THAT OPTION MUST BE IN WRITING ; THE REQUIREMENT FOR OPTION TO BE FURNISHED IN PRESCRIBED FORM OR MANNER WAS BROUGHT ON THE STATUTE ONLY SUBSEQUENTLY BY THE FINANCE ACT, 2015 W.E.F. 01.04.2016. IN SUMM ARY, IT IS STATED BY THE LD. COUNSEL THAT (A) THE TRIBUNAL HAS LOST SIGHT OF THE FACT THE LEASE TRANSFER CONSIDERATION OF RS.3,55,45,600/ - WAS SHOWN BY THE APPLICANT IN THE COURSE OF HEARING AS RECEIVED BY IT DURING THE YEAR ENDED 31.03.201 5 , (B) THE TRIBU NAL HAS LOST SIGHT THAT THE UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 5 APPLICANT HAD SHOWN TO IT AT THE TIME OF HEARING THAT IT HAD EXERCISED ITS OPTION UNDER EXPLANATION 2 OF SECTION 11(1) VIDE PARA NO. 8 OF ITS SUBMISSION DATED 20.03.2014 AS RECORDED BY THE AO ON PAGE 3 OF HIS ASSESSMENT ORDER ; THE ACT OF OPTION WAS READ TO THE TRIBUNAL BY THE APPLICANT FROM THE CHART OF PROPOSITIONS SUBMITTED IN THE HEARING. REFERRING TO THE DECISION IN SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC), IT IS STATED THAT ACCORDING TO THE APPLICANT, THE MISTAKES IN THE INSTANT CASE ARE CLEARLY OBVIOUS AND SELF - EVIDENT. FURTHER REFERRING TO THE DECISION IN NEETA S. SHAH V. CIT (1991) 191 ITR 77, 80 (KARN.) AND CIT V. SHANKUNTALA RA JESHWAR (1981) 160 ITR 840 (DEL) , IT IS STATED THAT IF AN EARLIER ORDER OF THE APPELLATE TRIBUNAL IS FOUND ON MISTAKEN ASSUMPTION AND THE ERROR IS DISCOVERED, THE POWER OF RECTIFICATION U/S 254(2) OUGHT TO THEN BE INVOKED BECAUSE THE VERY BASIS OF THE EARL IER ORDER REQUIRES RECTIFICATION. FURTHER REFERRING TO THE DECISION IN PR. CIT V. CHARTERED LOGISTICS LTD . (2017) 85 TAXMNN.COM 258 (GUJ), IT IS STATED THAT WHERE TRIBUNALS ORDER WAS CLEARLY PASSED ON INCORRECT FACTUAL PREMISES AND SUCH FACTUAL PREMISES W ERE THE VERY FOUNDATION OF SUCH ORDER, THE ORDER MUST BE RECALLED. FINALLY, RELYING ON THE DECISION IN HONDA SIEL PRODUCTS LTD. V. CIT (2007) 295 ITR 466 (SC), IT IS STATED THAT THE POWER OF THE TRIBUNAL TO RECALL OR RECTIFY ITS OWN ORDER STEMS FROM ITS SE NSE OF JUSTICE. RELYING ON THE ABOVE, THE LD. COUNSEL SUBMITS THAT (A) AN ORDER BE PASSED BY THE TRIBUNAL U/S 254(2), RECTIFYING MISTAKES ON RECORD CITED BY THE APPLICANT IN THIS APPLICATION, (B) THE ORDER U/S 254(2) PROVIDES RECALL OF THE TRIBUNALS ORDE R PASSED U/S 254(1) AND DIRECTION FOR THE APPEAL TO BE HEARD AFRESH, (C) THE ORDER U/S 254(2) MAY PROVIDE FOR ANY OTHER RELIEF, WHICH THE TRIBUNAL THINKS FIT. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 6 II 3. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. HE SUBMITS THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT. III 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. IN THE INSTANT CASE, T HE ASSESSING OFFICER (AO) COMPLETED THE ASSESSMENT U/S 143 (3) ON 25.03.2014 ON A TOTAL INCOME OF RS. 2 ,03,37,630/ - . IN APPEAL, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 1, MUMBAI [ IN SHORT CIT (A)] CONFIRMED THE ASSESSMENT MADE BY THE AO. AGGRIEVED BY THE ORDER OF THE LD. CIT (A), THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. THE ITAT F BENCH, MUMBAI (ITA NO. 1097/MUM/2016) VIDE ORDER DATED 25.05.2017 DISMISSED THE APPEAL FILED BY THE ASSESSEE. THEREAFTER, THE ASSESSEE FILED A MISCELLANEOUS APPLICATION (MA) BEFORE THE TRIBUNAL SEEKING RECTIFICATION/RECALLING OF THE ORDER DATED 25.05.2017 U/S 25 4 (2) OF THE INCOME TAX ACT, 1961 [IN SHORT THE ACT]. THE ITAT F BENCH, MUMBAI VIDE ORDER DATED 16.01.2018 DISMISSED THE MA FILED BY THE ASSESSEE. THEREAFTER, THE ASSESSEE FILED A WRIT PETITION BEFORE THE HONBLE BOMBAY HIGH COURT CHALLENGING THE ORD ER DATED 16.01.2018 PASSED BY THE TRIBUNAL REJECTING THE APPLICATION FOR RECTIFICATION. THE HONBLE HIGH COURT VIDE ORDER DATED 28.06.2018 HELD: UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 7 3. THE PRIMARY GRIEVANCE OF THE PETITIONER IN ITS RECTIFICATION APPLICATION TO THE TRIBUNAL IS THAT THE ORDER PASSED ON 25 TH MAY, 2017 AFTER RECORDING THE PETITIONERS SUBMISSION THAT THE PROVISIONS OF SECTION 11(1) EXPLANATION - 2 OF THE ACT WOULD WARRANT ITS APPEAL BEING ALLOWED WAS NOT CONSIDERED AND ITS APPEAL WAS DISMISSED. THIS LED TO THE FILING OF THE RECTIF ICATION APPLICATION UNDER SECTION 254 (2) OF THE ACT. 4. ON 16 TH JANUARY, 2018 THE IMPUGNED ORDER WAS PASSED DISMISSING THE RECTIFICATION APPLICATION. THE IMPUGNED ORDER WHILE DISPUTING THE SUBMISSION OF THE PETITIONER LEADING TO THE ORDER DATED 25 TH MAY, 2017 DID NOT CONSIDER THE CLAIM OF THE PETITIONER UNDER SECTION 11(1) EXPLANATION - 2 OF THE ACT TO HOLD ON MERITS THAT IT IS NOT ENTITLED TO THE BENEFIT OF SECTION 11(1) OF THE ACT. THIS ACCORDING TO THE PETITIONER IS CLEARLY CONTRARY TO AND IN DEFIAN CE OF THE DECISIONS OF THIS COURT IN SAFARI MERCANTILE (P) LTD. VS. ITAT, 386 ITR 4 AND GYAN CONSTRUCTIONS V/S INCOME TAX APPELLATE TRIBUNAL, [2015] 55 TAXMANN.COM 479. 5. MR. WALVE, THE LEARNED COUNSEL FOR THE RESPONDENT SUBMITS TO THE ORDER OF THIS COURT . 6. WE FIND THAT THE ISSUE IS NO LONGER RES JUDICATA AS IT STANDS CONCLUDED BY THE DECISION OF THIS COURT IN SAFARI MERCANTILE (SUPRA) AND GYAN CONSTRUCTIONS (SUPRA) THAT WHILE DEALING WITH THE APPLICATION FOR RECTIFICATION, THE TRIBUNAL WHERE IT FINDS TH ERE IS AN ERROR APPARENT ON RECORD THEN IT SHOULD RECALL THE ORIGINAL ORDER AND PLACE THE APPEAL FOR CONSIDERATION OF THE ISSUE ON MERITS BEFORE THE REGULAR COURT. IT IS NOT APPROPRIATE TO DISPOSE OF THE CONTROVERSY ON MERITS OF THE SUBMISSION, WHILE DISPO SING OF THE RECTIFICATION APPLICATION. 7. IN THE ABOVE VIEW, THE IMPUGNED ORDER DATED 16 TH JANUARY, 2018 IS QUASHED AND SET ASIDE. THE RECTIFICATION APPLICATION FILED BY THE PETITIONER IS RESTORED TO THE TRIBUNAL FOR FRESH DISPOSAL IN ACCORDANCE WITH THE D ECISION OF THIS COURT IN SAFARI MERCANTILE PVT. LTD. (SUPRA) AND GYAN CONSTRUCTIONS (SUPRA). 8. THE PETITION IS DISPOSED OF IN THE ABOVE TERMS. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 8 4.1 AS MENTIONED EARLIER, THE PRIMARY GRIEVANCE OF THE ASSESSEE IN THE WRIT PETITION FILED BEFORE THE HONBLE HIGH COURT WAS THAT THE TRIBUNAL DID NOT CONSIDER IN ITS ORDER DATED 25.05.2017 THE CLAIM U/S 11(1) EXPLANATION - 2 OF THE ACT TO HOLD ON MERITS THAT IT IS NOT ENTITLED TO THE BENEFIT OF SECTION 11(1) OF THE ACT. WE MAY MENTION HERE THE GROUNDS OF APPEAL FILED BY THE ASSESSEE BEFORE THE TRIBUNAL WHICH ARE AS UNDER: - '1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOL DING THAT THE AMOUNT OF RS. 3,55,45,600 ACCRUED TO THE APPELLANT AS INCOME FOR THE YEAR UNDER APPEAL AND WAS ALSO RECEIVED. 2. THE LD. CIT(A) FAILED TO NOTE THAT THE AMOUNT OF RS. 3,55,45,600 WAS NOT FACTUALLY RECEIVED DURING THE YEAR UNDER APPEAL AND THA T IN THIS CIRCUMSTANCES THE SAME SHOULD BE DEEMED TO BE APPLIED TOWARDS CHARITABLE PURPOSES IN TERMS OF CLAUSE (2) OF EXPLANATION TO SECTION 11(1) OF THE INCOME TAX 1961. THIS IS MORE PARTICULARLY SO BECAUSE THE PROVISION, FOR EXERCISING OPTION IN WRITING UNDER THE SAID EXPLANATION BEFORE THE EXPIRY OF TIME ALLOWED FOR FURNISHING RETURN U/S 139 (1) IS NOT MANDATORY, BUT DIRECTORY IN NATURE AND MUST THEREFORE BE LIBERALLY INTERPRETED TO CONFER EXEMPTION U/S 11 AND NOT DENY IT. 3. BOTH THE LOWER AUTHORITIES ERRED IN PASSING THEIR RESPECTIVE ORDERS WITHOUT GRANTING YOUR APPELLANT ADEQUATE OPPORTUNITY OF BEING HEARD. THE ORDER PASSED BY THEM ARE IN CONTRAVENTION OF THE PRINCIPLES OF NATURAL JUSTICE AND HENCE, BAD IN LAW. 4.2 DURING THE COURSE OF HEARING BEFO RE THE TRIBUNAL IN ITA NO 1097/MUM/2016 , IT WAS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE APPELLANT HAS ADMITTEDLY NOT RECEIVED THE SALE CONSIDERATION FOR ASSIGNMENT OF LEASE DURING THE YEAR ENDED 31.03.2011 AND IS THEREFORE ENTITLED TO EXERCISE OPTION AS PER EXPLANATION 2 TO SECTION 11(1) AND THIS UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 9 OPTION MAY BE CONSIDERED TO HAVE BEEN EXERCISED DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN VIEW OF SUBMISSION DATED 20.03.2014 TO THE AO REPRODUCED ON PAGE 2 & 3 OF THE ASSESSMENT ORDER, M ORE PARTICULARLY PARA NO. 7 & 8 OF THE SUBMISSION (PAGE 3 OF THE ASSESSMENT ORDER). IT IS FURTHER STATED THAT UNDER THE LAW APPLICABLE FOR THE YEAR UNDER APPEAL, THERE IS NO REQUIREMENT FOR SUBMITTING OPTION IN ANY PARTICULAR PRESCRIBED FORM AND THE PROVI SION FOR PRESCRIBED FORM WAS INTRODUCED SUBSEQUENTLY ONLY BY THE FINANC E ACT, 2015 W.E.F. 01.04.2016. THUS, THE LD. COUNSEL REFERRED TO EXPLANATION - 2 TO SECTION 11(1) PRIOR TO THE SAID AMENDMENT WHICH READS AS UNDER: SECTION 11 ( 2 ) IF, IN THE PREVIOUS YEAR, THE INCOME APPLIED TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA FALLS SHORT OF EIGHTY - FIVE PER CENT OF THE INCOME DERIVED DURING THAT YEAR FROM PROPERTY HELD UNDER TRUST, OR, AS THE CASE MAY BE, HELD UNDER TRUST IN PART, BY ANY AMOUNT ( I ) FOR THE REASON THAT THE WHOLE OR ANY PART OF THE INCOME HAS NOT BEEN RECEIVED DURING THAT YEAR, OR ( II ) FOR ANY OTHER REASON, THEN ( A ) IN THE CASE REFERRED TO IN SUB - CLAUSE ( I ), SO MUCH OF THE INCOME APPLIED TO SUCH PURPOSES IN INDIA DURING THE PREVIOUS YEAR IN WHICH THE INCOME IS RECEIVED OR DURING THE PREVIOUS YEAR IMMEDIATELY FOLLOWING AS DOES NOT EXCEED THE SAID AMOUNT, AND ( B ) IN THE CASE REFERRED TO IN SUB - CLAUSE ( II ), SO MUCH OF THE INCOME APPLIED TO SUCH PURPOSES IN INDIA DURING THE PREVIOUS YEAR IMMEDIAT ELY FOLLOWING THE PREVIOUS YEAR IN WHICH THE INCOME WAS DERIVED AS DOES NOT EXCEED THE SAID AMOUNT, MAY, AT THE OPTION OF THE PERSON IN RECEIPT OF THE INCOME (SUCH OPTION TO BE EXERCISED BEFORE THE EXPIRY OF THE TIME ALLOWED UNDER SUB - SECTION (1) OF SECTION 139 FOR FURNISHING THE RETURN OF INCOME) BE DEEMED TO BE INCOME APPLIED TO UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 10 SUCH PURPOSES DURING THE PREVIOUS YEAR IN WHICH THE INCOME WAS DERIVED; AND THE INCOME SO DEEMED TO HAVE BEEN APPLIED SHALL NOT BE TAKEN INTO ACCOUNT IN CALCULATING THE AMOUNT OF INCOME APPLIED TO SUCH PURPOSES, IN THE CASE REFERRED TO IN SUB - CLAUSE ( I ), DURING THE PREVIOUS YEAR IN WHICH THE INCOME IS RECEIVED OR DURING THE PREVIOUS YEAR IMMED IATELY FOLLOWING, AS THE CASE MAY BE, AND, IN THE CASE REFERRED TO IN SUB - CLAUSE ( II ), DURING THE PREVIOUS YEAR IMMEDIATELY FOLLOWING THE PREVIOUS YEAR IN WHICH THE INCOME WAS DERIVED. THE LD. COUNSEL FILED A COPY AND REFERRED TO THE DECISION IN CIT VS. SHIVANAND ELECTRONICS (1994) 75 TAXMANN 93 (BOM), CIT VS. SMT. ARCHANA R. DHANWATEY (1981) 7 TAXMAN 121 (BOM), BALMUKUND ACHARYA VS. DCIT (2009) 176 TAXMAN 316 (BOM), CIT VS. ZIARAT MIR SYED ALI HAMDANI (2001) 248 ITR 769 (J&K), CIT VS. G.M. KNITTING INDUS TRIES (P.) LTD. (2016) 71 TAXMAN.COM 36 (SC) AND THE ORDER OF THE TRIBUNAL DATED 30.11.2016 IN M/S WHISTLING WOODS INTERNATIONAL LTD. VS. ITO (ITA NO. 556/MUM/2015 FOR AY 2004 - 05). FURTHER REFERENCE WAS MADE BY HIM TO THE CIRCULAR NO. 14 (XI - 35) OF 1955, DATED 11.04.1955. 4.3 THE ABOVE FACTS ARE PART OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. WE HAVE DISCUSSED AT LENGTH IN THE IMPUGNED ORDER THE FACTS OF THE CASE AND THE CASE LAWS RELIED ON BY THE LD. COUNSEL AND THE REASONS FOR OUR DECISION. ONE MAY R EFER TO PARA 12 TO 17 (PAGE 13 TO 22) OF THE IMPUGNED ORDER. IT HAS BEEN CLEARLY STATED IN IMPUGNED ORDER THAT THE ORIGINAL DEED OF ASSIGNMENT DATED 19.01.2011 WAS SIGNED BY M/S UNIVERSAL EDUCATION FOUNDATION I.E. THE ASSESSEE (ASSIGNER), M/S KABRA ASSOCIA TES (THE CONFIRMING PARTY) AND M/S SUPER VALUE PROPERTIES PVT. LTD. (THE ASSIGNEE). THIS DEED WAS DULY REGISTERED ON 19.01.2011 ITSELF WITH THE SUB - REGISTRAR, UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 11 THANE - II. IN THIS DEED, THE FOLLOWING ARRANGEMENT REGARDING PAYMENT OF RS. 3,55,45,600/ - WAS MADE . NOW THIS DEED WITNESSETH THAT IN CONSIDERATION OF THE SUM OF RS. 3,55,45,600/ - (RUPEES THREE CRORE FIFTY FIVE LAKHS FORTY FIVE THOUSANDS SIX HUNDRED ONLY) PAID BY THE ASSIGNEE TO ASSIGNOR (THE PAYMENT AND RECEIPT WHEREOF THE ASSIGNOR HEREBY ADMITS AND ACKNOWLEDGE AND OF AND FROM THE SAME AND EVERY PART WHEREOF DOTH HEREBY ACQUIT, RELEASE AND DISCHARGE THE ASSIGNEE FOREVER), THE ASSIGNER WITH THE CONSENT AND CONFIRMATION OF THE CONFIRMING PARTY HEREBY ASSIGNS ITS RIGHT, TITLE AND INTEREST IN RESPECT OF L AND BEARING SURVEY NOS. 124/1A, 124/2, 124/4/2, 124/5A. 125/5A ADMEASURING 4,900.125 SQUARE METERS..... AT PAGE 8, WHICH IS THE SCHEDULE TO THE DEED OF ASSIGNMENT DATED 19.01.2011, THE FOLLOWING IS MENTIONED IN CLEAR TERMS: RECEIVED FROM THE WITHIN NAMED ASSIGNEE THE SUM OF RS. 3,55,45,600/ - (RUPEES THREE CRORE FIFTY FIVE LAKHS FOURTY FIVE THOUSAND SIX HUNDRED ONLY) BEING THE FULL AND FINAL CONSIDERATION PAID BY (IT) TO US, UNDER THESE PRESENTS, AS FOLLOWS: CHQ/P.O. NO. DATE DRAWN ON AMOUNT 889388 18/01/2011 UBI, JUHU TARA RD 3,55,45,600/ - 4.4 HAVING DISCUSSED AT LENGTH THE SUBMISSIONS OF THE LD. COUNSEL AND THE LD. DR AND HAVING EXAMINED THE FACTS OF THE CASE, W E CAME TO A FINDING THAT IN THE INSTANT CASE, THE ASSESSEE HAS RECEIVED RS.3,55,45,600/ - DURING THE FINANCIAL YEAR 2010 - 11 RELEVANT TO THE IMPUGNED ASSESSMENT YEAR. THIS IS CRYSTAL CLEAR FROM THE (I) DEED OF ASSIGNMENT DATED 19.01.2011 AND THE SCHEDULE (I I)RECEIPT OF RS.3,55,45,600/ - BY THE ASSESSEE THROUGH CHEQUE NO. 889388 DATED 18.01.2011 DRAWN ON UBI, JUHU, TARA ROAD AND (III) THE BASIS OF ACCOUNTING & REVENUE RECOGNITION FOLLOWED BY THE ASSESSEE DURING THE PRESENT ASSESSMENT YEAR. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 12 IN THE WRITTEN SUBM ISSION DATED 18.03.2014 FILED BEFORE THE AO, THE ASSESSEES MAIN CONTENTION WA S SINCE THERE IS NO DEFINITE POSSIBILITY THAT RECEIPT WILL BE RECEIVED THE CONSIDERATION WAS NOT TAXED IN AY 2011 - 12. A READING OF THE SAID WRITTEN SUBMISSION WHICH WE HAVE EXT RACTED AT PARA 6 OF THE IMPUGNED ORDER , CLEARLY INDICATES THAT THE APPELLANT HAS NOT EXERCISED THE OPTION UNDER CLAUSE (2) OF THE EXPLANATION TO SECTION 11(1) OF THE ACT. THUS WE CONCLUDED THAT THE GROUNDS OF APPEAL FILED BY THE ASSESSEE CAN BE SEEN THROUG H THE LENS OF DEDUCTIVE INFERENCE, IN WHICH IT IS ASSERTED THAT THE CONCLUSION IS GUARANTEED TO BE TRUE IF THE PREMISES ARE TRUE. IN THE PRESENT CASE, IT IS THE CONTENTION OF THE ASSESSEE VIDE THE 2 ND GROUND OF APPEAL THAT THE LD. CIT(A) FAILED TO NOTE THAT THE AMOUNT OF RS.3,55,45,600/ - WAS NOT FACTUALLY RECEIVED DURING THE YEAR UNDER APPEAL. THIS PREMISE IS NOT TRUE AS EVIDENT FROM THE FINDING ABOVE THAT THE ASSESSEE HAS RECEIVED RS.3,55,45,600/ - DUR ING THE FINANCIAL YEAR 2010 - 11 RELEVANT TO THE IMPUGNED ASSESSMENT YEAR. THE INFERENCE DRAWN BY THE ASSESSEE IS NOT A CORRECT ONE AS IT IS BASED ON WRONG PREMISE. IN VIEW OF THE ABOVE FACTS AND POSITION OF LAW, WE UPHELD THE ORDER OF THE LD. CIT(A). 4.5 WE MAY DISCUSS HERE THE CASE LA WS RELIED ON BY THE LD. COUNSEL. IN SAURASHTRA KUTCH STOCK EXCHANGE LTD . (SUPRA), THE HONBLE SUPREME COURT EXPLAINS WHAT IS AN ERROR APPARENT ON THE FACE OF THE RECORD, WHICH WE REFER INFRA. 4.5.1 IN NEETA S. SHAH (SUPRA), THE HONBLE KARNATAKA HIGH COURT HAS HELD THAT IN THE PRESENT CASE, SINCE THE HIGH COURT HAD HELD THAT THE ASSESSMENT IN RESPECT OF PROPERTY INCOME HAD TO BE MADE INDIVIDUALLY AND NOT AS AN UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 13 AOP, APPLICATION U/S 254(2) TO COMPUTE THE INCOME AS PE R SECTION 86(V) WAS SUSTAINABLE AND THE CONTENTION THAT TRIBUNAL SHOULD CONFINE ITSELF TO ACTUAL RECORD BEFORE IT AND CANNOT REFER TO SUPPLEMENTAL OR COMPLEMENTARY PROCEEDINGS IS NOT SUSTAINABLE. IN SHAKUNTALA RAJESHWAR (SUPRA), THE HONBLE DELHI HIGH C OURT HELD THAT WHILE DECIDING THE APPEAL ORIGINALLY, THE TRIBUNAL HAD BASED ITSELF ON THE ORDER OF THE CIT(A) ON THE ASSUMPTION THAT IT HAD BECOME FINAL AND WHEN THAT ASSUMPTION, APPARENT FROM ITS APPELLATE ORDER AND RECORD WAS FOUND TO BE ERRONEOUS, THE TRIBUNAL WAS JUSTIFIED IN INVOKING ITS POWER U/S 254(2) AND IN RE - CONSIDERING THE ISSUE AFRESH. IN CHARTERED LOGISTICS LTD. (SUPRA), THE HONBLE GUJARAT HIGH COURT HAS HELD THAT : 6. WE DO NOT INTEND TO GIVE FINAL ANSWER TO THIS QUESTION IN THE PRESENT PETITION THOUGH PRIMA FACIE IT MAY APPEAR THAT EVEN WITHOUT ANY SPECIFIC POWERS UNDER THE STATUTE, FOR EXAMPLE, AS REFERRED TO IN SUB - SECTION(2) OF SECTION 254 FOR RECTIFICATION, IT WOULD APPEAR THAT ANY JUDICIAL OR QUASI - JUDICIAL AUTHORITY WOULD HAVE INH ERENT POWERS TO CORRECT AN ERROR WHICH IS PLAINLY THAT OF CLERICAL, TYPOGRAPHICAL, ARITHMETICAL OR FACTUAL. IF THE TRIBUNAL HAD PROCEEDED ON FACTUAL BASIS WHICH WAS WHOLLY AND CONCEDEDLY ERRONEOUS, THE TRIBUNAL PERHAPS EVEN IN ABSENCE OF SPECIFIC PROVISION OF SUB - SECTION(2) OF SECTION 254, HAD THE POWER TO RECALL THE ORDER. HOWEVER IT IS NOT NECESSARY TO ELABORATE THIS ISSUE ANY FURTHER SINCE THE DEPARTMENT HAS CHALLENGED NOT ONLY THE SUBSEQUENT ORDER OF THE TRIBUNAL DATED 13.10.2016 BUT ALSO THE ORIGINAL O RDER DATED 13.5.2015 WHICH IN ANY CASE IS SUBJECT TO EXAMINATION IN EXERCISE OF WRIT JURISDICTION BY THIS COURT AND IS CHALLENGED BEFORE US. WHEN WE FIND THAT THE TRIBUNAL'S ORDER DATED 13.5.2015 WAS PASSED ON CLEARLY INCORRECT FACTUAL PREMISE AND SUCH FAC TUAL PREMISE BEING THE VERY FOUNDATION OF THE ORDER, SUCH ORDER MUST BE SET ASIDE AND IS ACCORDINGLY SET ASIDE. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 14 IN HONDA SIEL POWER PRODUCTS LTD . (SUPRA), THE HONBLE SUPREME COURT HELD THAT NON - CONSIDERATION OF A DECISION OF CO - ORDINATE BENCH PLACED BEFORE THE TRIBUNAL AMOUNTS TO MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF S. 254(2); TRIBUNAL WAS THEREFORE JUSTIFIED IN EXERCISING ITS POWE RS UNDER S. 254(2) WHEN IT WAS POINTED OUT THAT AN ORDER OF THE CO - ORDINATE BENCH PLACED BEFORE THE TRIBUNAL WAS NOT CONSIDERED BY IT WHILE PASSING THE ORIGINAL ORDER. FURTHER, IT HELD THAT : THE PURPOSE BEHIND ENACTMENT OF S. 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL, BE IT AN ASSESSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWERS OF THE TRIBUNAL. ONE OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO THE TRIBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT BY ITS DECISION BASED ON A MI STAKE APPARENT FROM THE RECORD. 'RULE OF PRECEDENT' IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN RULE OF LAW. THAT PRINCIPLE IS NOT OBLITERATED BY S. 254(2). WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION, TH EN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN EXER CISING ITS POWERS UNDER S. 254(2) WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE DECISION OF THE CO - ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHI CH WAS ALREADY ON RECORD. THE TRIBUNAL HAS ACKNOWLEDGED ITS MISTAKE, IT HAS ACCORDINGLY RECTIFIED ITS ORDER. THE HIGH COURT WAS NOT JUSTIFIED IN INTERFERING WITH THE SAID ORDER. FOR THE AFORESTATED REASONS, THE IMPUGNED JUDGMENT OF THE HIGH COURT IS SET AS IDE AND THE ORDER PASSED BY THE TRIBUNAL ALLOWING THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE IS RESTORED. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 15 4.6 FOR GUIDANCE, WE MAY REFER HERE TO THE DECISION IN CIT V. RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497 (BOM) , WHEREIN THEIR LORDSHI PS OF THE HONBLE BOMBAY HIGH COURT HAVE HELD: UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL MAY, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - S (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE IT ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THI S IS MERELY A POWER OF AMENDING ITS ORDER. IN THE PRESENT CASE, IN THE FIRST ORDER, THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYMENT OF RS.54,000 WAS DEDUCTIBLE UNDER S. 37. AF TER EXAMINING THE CIRCUMSTANCES, THE TRIBUNAL CAME TO A CONCLUSION THAT IT WAS NOT SO DEDUCTIBLE. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVE D AT. THE MISTAKE THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. THE TRIBUNAL HAS, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER S. 254(2) IN REDECIDING THE ENTIRE DISPUTE WHICH WAS B EFORE IT, IN THIS FASHION, AND THE TRIBUNAL HAS COMMITTED A GROSS AND INEXPLICABLE ERROR. FAILURE BY 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 ER ROR OF JUDGMENT. 4.7 AS NARRATED HEREINABOVE AT PARA 4 TO 4.4, WE FIND THAT THE ARGUMENTS OF THE ASSESSEE DURING THE COURSE OF HEARING IN ITA NO. 1097/MUM/2016 FOR THE IMPUGNED ASSESSMENT YEAR HAVE BEEN EXAMINED AT LENGTH AND THEN THE ORDER HAS BEEN PASSED. NO FACT HAS BEEN LOST SIGHT OF. NO ARGUMENT HAS BEEN LOST SIGHT OF. WE REF ER HERE TO THE ORDER DATED 26.06.2019 PASSED BY TRIBUNAL. UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 16 THEREFORE THE INSTANT CASE IS DISTINGUISHABLE FROM THE CASE - LAWS RELIED ON BY THE APPLICANT, NARRATED AT PARA 4.5 .1 HEREINBEFORE. IN PADMASUNDRA RAO V. STATE OF TN 255 ITR 147 (SC ); CIT V. RAM NAR AIN 227 ITR 401; GOVT. OF INDIA V. JAGADISH 221 ITR 338, IT HAS BEEN HELD THAT RELIANCE SHOULD NOT BE PLACED ON A DECISION WITHOUT DISCUSSING HOW THE FACTUAL SITUATION FITS IN WITH THE FACTUAL SITUATION OF THE DECISION ON WHICH RELIANCE IS PLACED. ALSO IT IS HELD IN PADMASUNDRA RAO (SUPRA) THAT CIRCUMSTANTIAL FLEXIBILITY, E.G. ONE ADDITIONAL OR DIFFERENT FACT, MAY MAKE A WORLD OF DIFFERENCE BETWEEN CONCLUSIONS IN TWO CASES. A PERUSAL OF THE ABOVE FACTS CLEARLY INDICATE THAT THE APPLICANT HAS NOT POINTED OUT ANY MISTAKE APPARENT FROM THE RECORD. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REA SONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. THIS VIEW IS SUPPORTED BY THE DECISION OF THE HONBLE SUPREME COURT IN T.S. BALARAM, ITO V. VOLKART BROS ., (1 971) 82 ITR 50 (SC), MASTER CONSTRUCTION CO. P. LTD. V. STATE OF ORISSA , AIR 1966 SC 1047, KARAM CHAND THAPAR & BROS. (COAL SALES) LTD. V. STATE OF U.P. (1976) TAX LR 1921, 1927 (SC) AND CCE V. ASCU LTD ., (2003) 9 SCC 230, 232. WE MAY REFER HERE TO THE DEC ISION IN SAURASTRA KUTCH STOCK EXCHANGE LTD. (SUPRA), RELIED ON BY THE LD. COUNSEL, WHEREIN THE HONBLE SUPREME COURT RELYING ON ITS DECISION IN PATEL NARSHI THAKERSHI & ORS. VS. PRADYUMANSINGHJI ARJUNSINGHJI (1971) 3 SCC 844, HARI VISHNU KAMATH VS. SYED A HMAD ISHAQUE (1955) 1 SCR 1104, SATYANARAYAN LAXMINARAYAN HEGDE & ORS. VS. MALLIKARJUN BHAVANAPPA TIRUMALE (1960) 1 SCR 890 AND SYED YAKOOB VS. K.S. RADHAKRISHNAN & ORS. (1964) 5 SCR 64A HELD THAT : UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 17 P ATENT, MANIFEST AND SELF - EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RE CORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE FACE OF THE RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED LONG DRAWN OUT PROCESS OF REASONING ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT I N THE ORIGINAL JUDGMENT IS ONE OF THE POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD . 4. 8 IN FACT, NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLICANT WA NTS IS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THE TRIBUNAL IS A CREATURE OF THE STATUTE. THE TRIBUNAL CANNOT REVIEW ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRAD YUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 1273] THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT AS HELD IN CIT V. GLOBE TRANSPORT CORPN. [1992] 195 ITR 311 (RAJ) (HC), CIT V. ROOP NARAIN SARDAR MAL [2004] 267 ITR 601 (RAJ) (HC), CIT V. DEVILAL SONI [2004] 271 ITR 566 (RAJ) (HC), JAINARAIN JEEVRAJ V. CIT [1980] 121 ITR 358 (RAJ.) (HC), PRAJATANTRA PRACHAR SAMITI V. CIT [2003] 264 ITR 160 (ORISSA) (HC), CIT V. JAGABANDHU ROUL [1984] 145 ITR 153 (ORISSA) (HC), CIT & ANR. V. ITAT & ANR. [1992] 196 ITR 640 (ORISSA) (HC), SHAW WALLACE & CO. LTD. V. ITAT & OTHERS [1999] 240 ITR 5 79 (CAL) (HC), CIT V. SUMAN TEA & PLYWOOD UNIVERSAL EDUCATION FOUNDATION MA NO. 584/M/2019 18 INDUSTRIES PVT. LTD. [1997] 226 ITR 34 (CAL) (HC), ITO V. ITAT & ANR. [1998] 229 ITR 651 (PAT.) (HC), CIT & ANR. V. ITAT & ANR. [1994] 206 ITR 126 (AP) (HC), ACIT V. C. N. ANANTHRAM [2004] 266 ITR 470 (KAR) (HC). 5. IN VIEW OF THE FACTUAL SCENARIO AND POSITION OF LAW DELINEATED HEREINBEFORE, THE PRESENT MA, BEING DEVOID OF MERIT, IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2020 SD/ - SD/ - (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 20/03/2020 RAHUL SHARMA , SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( DY.//ASSISTANT REGISTRAR ) ITAT, MUMBAI