U.P Forest Corporation, Lucknow V. Income Tax Officer-1(4), Lucknow

MA 60/LKW/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6658 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-05-2018
• Assessment Year: misc
• Appeal Filed On: 02-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: IN ASSESSMENT YEAR
• Keywords: Rectification of order
• Section: 12A; 263

Judgement Text

M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER MISC. APPLICATION NO.60/LKW/2016 (ARISING OUT OF I.T.A. NO.286/LKW/2014) ASSESSMENT YEAR:1996-97 U.P. FOREST CORPORATION, 21/475, INDIRA NAGAR, LUCKNOW. PAN:AAATU 3944 K VS. INCOME TAX OFFICER - 1(4), LUCKNOW. (APPLICANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSES SEE AGAINST THE ORDER OF THE TRIBUNAL DATED 10/09/2015 PASSED IN I. T.A. NO.286/LKW/2014 FOR ASSESSMENT YEAR 1996-97. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT SIM ILAR MISC. APPLICATIONS WERE FILED BY THE ASSESSEE IN ASSESSMENT YEAR 2001- 02 AND 2005-06 VIDE MISC. APPLICATION NO. 58 & 59 WHICH WERE DISMISSED BY THE TRIBUNAL AND HE FAIRLY AGREED THAT SINCE THE ISSUES RAISED IN THESE MISC. APPLICATION ARE PARA MATERIAL WITH THE EARLIER MISC. APPLICATIONS, THE S AME MAY BE DECIDED AS PER THE ORDER IN THOSE MISC. APPLICATIONS. FURTHER HE INVITED OUR ATTENTION TO THE FACT THAT DURING THE HEARING OF EARLIER MISC . APPLICATIONS HE HAD VERBALLY RELIED ON THE CASE LAW OF PROMAIN INDIA LT D. VS. CIT AND ALSO HAD APPLICANT BY SHRI D. D. CHOPRA, ADVOCATE RESPONDENT BY SHRI RAJESH TIWARI, D.R. DATE OF HEARING 25/05/2018 DATE OF PRONOUNCEMENT 29 /05 /201 8 M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 2 RELIED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF HONDA SEIL POWER PRODUCTS LTD. VS. CIT [2007] 295 ITR 466 (SC) WHEREIN IT HAS BEEN HELD THAT IT WAS OPEN FOR THE TRIBUNAL TO EXAMINE U /S 254(2) THE ISSUE OF RECTIFICATION ON AN APPARENT ERROR OF LAW. HE SUBM ITTED THAT VERBAL SUBMISSIONS MADE BY HIM DO NOT FIND MENTION IN THE TRIBUNAL ORDER AND THEREFORE, IT WAS PRAYED THAT NOW THE ASSESSEE HAS PREFERRED TO FILE WRITTEN SUBMISSIONS WHICH MAY BE TAKEN ON RECORD. 3. LEARNED D. R. HEAVILY RELIED ON THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ALL THE GROUNDS TAK EN BY THE ASSESSEE ARE WITH REGARD TO THE REVISIONARY JURISDICTION OF LEAR NED CIT U/S 263 OF THE ACT. ALL THE GROUNDS TAKEN BY THE ASSESSEE BEFORE THE TR IBUNAL ARE AGAINST THE ORDER PASSED BY LEARNED CIT(A) U/S 263. HON'BLE TR IBUNAL HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE U/S 263 OF THE ACT . HOWEVER, IN THE ORDER PASSED, THE TRIBUNAL DID NOT DEAL GROUND BY GROUND WHILE DISPOSING OF THE APPEAL. HOWEVER, HON'BLE TRIBUNAL HAS TAKEN A VIEW IN THIS REGARD BY DISMISSING THE APPEAL OF THE ASSESSEE. LEARNED A. R. HAS ARGUED THAT HAD THE TRIBUNAL CONSIDERED THE INDIVIDUAL GROUNDS AND HAD DECIDED GROUND- WISE THE DECISION COULD HAVE BEEN DIFFERENT. HE HA S FURTHER RELIED ON THE CASE LAW OF HON'BLE SUPREME COURT IN THE CASE OF HO NDA SEIL POWER PRODUCTS LTD. VS. CIT (SUPRA) FOR THE PROPOSITION T HAT THE TRIBUNAL WAS EMPOWERED TO RECTIFY NOT ONLY MISTAKE APPARENT FROM RECORD BUT ALSO A MISTAKE APPARENT ON ERROR OF LAW. FOR THE SAKE OF COMPLETENESS THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE ARE REPRODUCED BE LOW: 1. THE APPLICANT HAS FILED APPLICATION UNDER SECTI ON 254(2) OF THE ACT SEEKING RECTIFICATION OF MISTAKE APPAREN T ON THE FACE OF RECORD IN ORDER DATED 10.09.2015 PASSED BY THIS LEARNED TRIBUNAL WHILE DECIDING ITA NO. 286/LKW/2014 FOR A. Y. 1996-97 IN AS MUCH AS THE LEARNED TRIBUNAL HAS FAILED TO M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 3 ADJUDICATE/DECIDE GROUNDS OF APPEAL AS APPEARING AT SERIAL NO. 4 TO 7 IN THE MEMO OF APPEAL WHILE DISMISSING THE A PPEAL OF THE APPLICANT. 2. IN GROUND NO. 7 A SPECIFIC ASSERTION HAS BEEN MA DE THAT AS PER INSTRUCTION NO. 11 OF 2011 DATED 24.05.2011 ISSUED BY CBDT, ASSESSMENTS IN CONSEQUENCE TO THE REMAND ORDE R OF THE TRIBUNAL ARE MONITORED BY THE COMMISSIONER HIMSELF. IN THIS CASE THE ASSESSING OFFICER, IN COMPLIANCE TO ORDER DATED 20.09.2010 PASSED BY THIS LEARNED TRIBUNAL IN ITA N O. 928/LKW/2002 FOR THE A.Y. 1996-97 HAS PASSED ASSESS MENT ORDER RESULTING IN REFUND OF RS.38,44,31,056.00 TO THE APPLICANT. THE ABOVE ASSESSMENT ORDER WAS UNDISPUTEDLY MONITOR ED BY THE COMMISSIONER HIMSELF AS PER THE REQUIREMENT OF INSTRUCTION NO 11 OF 2011 DATED 24.05.2011 ISSUED BY CBDT THERE FORE, THERE WAS NO OCCASION FOR THE COMMISSIONER TO HAVE TAKEN RECOURSE TO SECTION 263 ON THE GROUND THAT THE ASSE SSMENT ORDER WAS PREJUDICIAL TO THE INTEREST OF REVENUE. 3. IT IS FURTHER SUBMITTED THAT THE JURISDICTIONAL HIGH IN THE CASE OF CIT VS. KESHAV FRUIT MART, 199 ITR PAGE 771 HAS HELD THAT OMISSION TO CONSIDER THE GROUND RAISED IN THE APPEAL WAS A MISTAKE APPARENT FROM THE RECORD THAT IS LIABLE TO BE RECTIFIED. SIMILAR VIEW HAS BEEN EXPRESSED BY THE JURISDICTION AL HIGH COURT N THE CASE OF LAXMI ELECTRONIC CORPN. LTD. V. COMMISSIONER OF INCOME-TAX [1991] 54 TAXMAN 515 (AL L.) 4. IT MAY FURTHER BE SUBMITTED HERE THAT HON'BLE HI GH COURT OF DELHI IN THE CASE OF PROMAIN INDIA LTD. VS. CIT WHILE RELYING ON ORDER PASSED BY HON'BLE SUPREME COURT IN THE CAS E OF HONDA SEIL POWER PRODUCTS LTD. VS CIT (2007) 295 IT R 466 (SC) HAS HELD THAT IT WILL BE OPEN FOR THE ITAT IN APPLI CATION FILED UNDER SECTION 254(2) OF THE ACT, TO ALSO EXAMINE WH ETHER THE ORDER SOUGHT TO BE RECTIFIED HAS AN APPARENT ERROR OF LAW NOT LIMITED TO MISTAKES OF FACT APPARENT ON THE FACE OF RECORD. 4.1 WE FIND THAT SIMILAR ISSUE HAS BEEN DECIDED IN MISC. APPLICATION NO.58 & 59 AND THE MISC. APPLICATIONS HAVE BEEN DIS MISSED. FOR THE SAKE OF COMPLETENESS, THE FINDINGS OF HON'BLE TRIBUNAL I N MISC. APPLICATION NO. 58 & 59 ARE REPRODUCED BELOW: M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 4 3. WE HAVE PERUSED THE CASE RECORDS, ANALYSED THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON PERUSAL OF THE ORD ER OF THE TRIBUNAL DATED 23/9/2015, WE FIND THAT ALL THE GROUNDS TAKEN BY THE ASSESSEE ARE WITH REGARD TO THE REVISIONARY JURISDICTION UND ERTAKEN BY THE LD. CIT UNDER SECTION 263 OF THE ACT. ALL THE GROUNDS TAKEN BY THE ASSESSEE BEFORE THE TRIBUNAL WERE AGAINST THE ORDER PASSED BY THE LD. CIT UNDER SECTION 263 OF THE ACT. THE TRIBUNAL IN ITS ORDER HAS SPECIFICALLY BROUGHT IN ALL THE GROUNDS OF APPEAL P REFERRED BY THE ASSESSEE, WHICH ARE ON RECORD AND THEREAFTER DELIVE RED THE JUDGMENT, WHICH IS AS FOLLOWS:- 27. KEEPING IN VIEW THE AFORESAID LEGAL POSITION, WE NOW EXAMINE THE FACTS OF THE CASE. IN THE INSTANT CASE , THE TRIBUNAL VIDE ORDER DATED 30.1.2009 DIRECTED THE ASSESSING O FFICER TO ADJUDICATE THE ISSUE RELATING TO THE CLAIM OF EXEMP TION UNDER SECTION 11 OF THE ACT AND KEEPING IN VIEW REGISTRAT ION UNDER SECTION 12A OF THE ACT GRANTED TO THE ASSESSEE WITH OUT SETTING ASIDE OR CANCELLING THE ASSESSMENT ORDER. IT IS AL SO OBVIOUS FROM THE RECORD THAT WHEN ORIGINAL ASSESSMENT WAS FRAMED , REGISTRATION UNDER SECTION 12A OF THE ACT WAS NOT AVAILABLE TO T HE ASSESSEE, THEREFORE, THERE WAS NO QUESTION OF ADJUDICATION OF CLAIM OF EXEMPTION UNDER SECTION 11 OF THE ACT AND THE ASSES SING OFFICER HAS COMPUTED THE INCOME AS PER THE RELEVANT PROVISI ONS OF THE ACT. SINCE THE ASSESSING OFFICER HAS ACTED IN ACCO RDANCE WITH LAW, THE ASSESSMENT ORDER CANNOT BE CALLED TO BE ILLEGAL OR IRREGULAR AND THAT IS WHY THE TRIBUNAL HAS NOT SET ASIDE OR C ANCELLED THE ASSESSMENT ORDER. BUT ON ACCOUNT OF CHANGE OF CIRC UMSTANCES, THE TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE OF CLAIM OF EXEMPTION UNDER SECTION 11 OF THE ACT IN THE LIGHT OF REGISTRATION UNDER SECTION 12A OF THE ACT GRANTE D TO THE ASSESSEE. SINCE THE TRIBUNAL HAS NEITHER SET ASIDE NOR CANCELLED THE ASSESSMENT ORDER AND ISSUED DIRECTIONS FOR COMP LIANCE TO THE ASSESSING OFFICER, THE CASE OF THE ASSESSEE CERTAIN LY FALLS UNDER CLAUSE (II) OF SUB-SECTION (3) OF SECTION 153 OF TH E ACT AND FOR THIS SUB-SECTION, NO TIME LIMIT IS PRESCRIBED UNDER THE ACT. THEREFORE, IT CANNOT BE SAID THAT THE ORDER PASSED BY THE ASSE SSING OFFICER WAS BARRED BY LIMITATION. BUT FROM A CAREFUL PERUS AL OF THE ORDER PASSED BY THE ASSESSING OFFICER, WE FIND THAT THE A SSESSING OFFICER HAS SIMPLY COMPUTED THE QUANTUM OF REFUND INSTEAD O F ADJUDICATING THE CLAIM OF EXEMPTION RAISED UNDER SE CTION 11 OF THE ACT IN THE LIGHT OF GRANT OF REGISTRATION UNDER SEC TION 12A OF THE ACT TO THE ASSESSEE AS PER THE DIRECTIONS OF THE TR IBUNAL. WHILE ALLOWING BENEFIT OF SECTION 11 OF THE ACT, THE ASSE SSING OFFICER IS ALSO REQUIRED TO EXAMINE WHETHER THE CONDITIONS PRE SCRIBED UNDER M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 5 SECTION 13 OF THE ACT IS FULFILLED OR NOT. BUT THE ASSESSING OFFICER DID NOT DO THIS EXERCISE AND HAS COMPUTED THE REFUN D CLAIMED BY THE ASSESSEE. THEREFORE, THE ORDER OF THE ASSESSIN G OFFICER IS CERTAINLY ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE WHICH WAS RIGHTLY SET ASIDE BY THE LD. COMMISSIONER OF INCOME- TAX. 28. NOW WE WILL DEAL WITH THE ALTERNATIVE ARGUMENT OF THE ASSESSEE THAT THE ORDER UNDER SECTION 254 OF THE AC T PURSUANT TO THE DIRECTIONS OF THE TRIBUNAL, IS BARRED BY TIME A ND IT HAS NO LEGAL SANCTITY IN THE EYES OF LAW AND IS MERELY A PIECE O F PAPER. IF THAT BE THE CASE, THIS ORDER OF THE ASSESSING OFFICER CO MPUTING QUANTUM OF REFUND CANNOT BE EXECUTED AND MORE SO IT CANNOT BE ENFORCED. IF REFUND IS NOT GRANTED TO THE ASSESSEE , THE SAME MAY BE RECOVERED FROM THE ASSESSEE. WE, HOWEVER, HAVE ALREADY HELD IN THE FOREGOING PARAGRAPHS THAT THE ASSESSMENT ORD ERS PASSED BY THE ASSESSING OFFICER VIDE HIS ORDER DATED 8.8.2013 ARE NOT BARRED BY TIME, AS NO TIME LIMIT IS PRESCRIBED FOR PASSING AN ORDER UNDER SECTION 153(3)(II) OF THE ACT. WE ACCORDINGLY FIND NO INFIRMITY IN THE ORDERS OF THE LD. COMMISSIONER OF INCOME-TAX, W HO HAS RIGHTLY SET ASIDE THE ORDERS OF THE ASSESSING OFFICER, AS I T WAS NOT PASSED IN COMPLIANCE OF THE DIRECTIONS OF THE TRIBUNAL. W E ACCORDINGLY CONFIRM THE ORDERS OF THE LD. COMMISSIONER OF INCOM E-TAX IN BOTH THE ASSESSMENT YEARS. 29. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSE E ARE DISMISSED. 4. WE, THEREFORE, FIND THAT THE ORDER OF THE TRIBUN AL IS ELABORATE, EXHAUSTIVE, DEFINITIVE AND SPEAKING ORDER. IT WAS THE CONTENTION OF THE LD. A.R. OF THE ASSESSEE THAT CERTAIN GROUNDS W ERE NOT ADJUDICATED UPON BY THE TRIBUNAL. WE FIND THAT ALL THE GROUNDS PERTAIN TO THE ORDER PASSED UNDER SECTION 263 OF TH E ACT BY THE LD. CIT AND THOSE GROUNDS WERE NOT ONLY TAKEN INTO THE BODY OF THE ORDER BUT AT THE SAME TIME AN ELABORATE JUDGMENT HA S BEEN PASSED REGARDING THE SAME. WHEN ONE VIEW HAS BEEN TAKEN B Y THE TRIBUNAL, IT CANNOT BE PERMITTED TO BE REVIEWED UNDER SECTION 254(2) OF THE ACT. WE ARE TO SEE WHETHER THERE IS ANY MISTAKE AP PARENT FROM RECORD OR NOT. SINCE THE TRIBUNAL HAS ADJUDICATED THE ISSUE IN THE LIGHT OF THE FACTS AVAILABLE BEFORE IT, NO ERROR AS SUGGESTED BY THE LD. COUNSEL FOR THE ASSESSEE, IS CREPT IN THE ORDER OF THE TRIBUNAL. M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 6 5. MOREOVER, THE SCOPE OF PROVISIONS OF SECTION 254 (2) IS VERY LIMITED AND ONLY THOSE ERRORS WHICH ARE APPARENT OR ARITHMETICAL CAN ONLY BE RECTIFIED. THE SCOPE OF PROVISIONS OF SECT ION 254(2) OF THE ACT HAS BEEN REPEATEDLY EXAMINED BY THE HON'BLE APE X COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT THE TRIBUN AL CAN RECTIFY ONLY THOSE MISTAKES WHICH ARE ARITHMETICAL OR CLERICAL O R APPARENT IN ITS ORDER. THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER IN THE GARB OF RECTIFICATION. IT WAS ALSO HELD THAT IF TH E TRIBUNAL COMMITS AN ERROR OF JUDGEMENT, THAT ERROR CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT AS THE TRIB UNAL IS NOT EMPOWERED BY THE STATUTE TO REVIEW ITS OWN ORDER. IN THE CASE OF CIT VS. VARDHMAN SPINNING; 226 ITR 296 THEIR LORDSH IPS OF HON'BLE PUNJAB AND HARYANA HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE APPELLATE TRIBUNAL IS CREATION OF STATUTES AND IT C AN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. TH E ONLY POWER CONFERRED ON THE TRIBUNAL U/S 254(2) OF THE I.T. AC T, 1961 IS TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED BY THE AUTHORITIES UNDER THE A CT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOSED INHERENT R IGHTS. U/S 254(1) OF THE ACT, THE APPELLATE TRIBUNAL, AFTER HEARING T HE CONTESTING PARTIES, CAN PASS SUCH ORDER AS IT DEEMS FIT. SEC. 254(2) OF THE ACT SPECIFICALLY EMPOWERS THE APPELLATE TRIBUNAL AT ANY TIME WITHIN FOUR YEARS OF THE DATE OF AN ORDER TO AMEND ANY ORDER PA SSED BY IT U/S 254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAK E APPARENT FROM RECORD EITHER SUO MOTO OR ON AN APPLICATION MADE . WHAT CAN BE RECTIFIED UNDER THIS SECTION IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE R EASONS OR INQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE, THE N IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE REC ORD. 6. IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD IND USTRIES (P) LTD., 226 ITR 34 THEIR LORDSHIPS OF HON'BLE CALCUTT A HIGH COURT HAVE EXPRESSED SIMILAR OBSERVATIONS AFTER HOLDING THAT UNDER SECTION 254(2) OF THE INCOME-TAX ACT, AN ORDER, WHICH HAS B EEN PASSED BY THE TRIBUNAL REACHES FINALITY THE MOMENT THE SAME I S PASSED; CANNOT BE TOUCHED THEREAFTER. BY SECTION 254(2) OF THE AC T, THE TRIBUNAL, HOWEVER, HAS BEEN AUTHORIZED TO RECTIFY MISTAKES IN ITS ORDERS, WHICH ARE APPARENT ON THE FACE OF THE RECORDS. THE EXPRE SSION MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EITHER CLER ICAL OR GRAMMATICAL OR ARITHMETICAL OR OF LIKE NATURE, WHIC H CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO RE-ARGUE THE M ATTER OR TO RE- APPRAISE THE FACT AS APPEARING FROM THE RECORDS. IN ANOTHER CASE CIT VS. GOLAL CHAND AGARWAL; 202 ITR 14 THEIR LORDS HIPS OF HON'BLE M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 7 CALCUTTA HIGH COURT HAVE ALSO HELD THAT SECTION 254 (2) OF THE INCOME-TAX ACT, 1961 EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED U/S 254(1) TO RECTIFY ANY MISTAKE APPARENT F ROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. IF IN ITS OR DER THERE IS NO MISTAKE WHICH IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, THE EXERCISE OF THE JURISDICTION BY THE TRIBUNAL U/S 25 4(2) WILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF THE FACT CANNOT CONS TITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIG HT, AT THE WORST, LEAD TO PERVERSITY OF THE ORDER FOR WHICH THE REMED Y AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENC E PROCEEDINGS U/S 256. THE NORMAL RULE IS THAT THE REMEDY BY WAY OF REVIEW IS A CREATURE OF THE STATUTE AND UNLESS CLOTHED WITH SUC H POWER BY THE STATUTE, NO AUTHORITY CAN EXERCISE THE POWER. 7. THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. ITAT; 143 CTR 446 HAS HELD THAT SUB-SECTION (1) OF SECTION 254 CONFERS AMPLE POWERS ON THE TRIBUNAL TO PASS SUCH O RDERS IN ANY APPEAL FILED BEFORE IT AS IT THINKS FIT. SUB-SECTI ON (2) OF SECTION 254 POSTULATES THAT THE TRIBUNAL MAY AMEND ANY ORDER PA SSED BY IT UNDER SUB-SEC. (1) OF SECTION 254 WITH A VIEW TO RECTIFYI NG ANY MISTAKE APPARENT FROM THE RECORD. THE POWER OF THE TRIBUNA L CONFERRED BY SUB-SECTION (2) OF SECTION 254 FOR RECTIFYING ANY M ISTAKE APPARENT FROM THE RECORD CANNOT BE EXERCISED BY THE TRIBUNAL TO RECALL ANY ORDER PASSED BY IT UNDER SECTION 254(2). FURTHER, REVIEWING AND RECALLING AN ORDER IS ONE THING AND RECTIFYING A MI STAKE IN THE ORDER WHICH IS APPARENT FROM THE RECORD IS QUITE ANOTHER. IN THE ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW BY TRIBUNAL, THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED OR REVIEWED UNDER S ECTION 254(2) OF THE ACT. THE PROVISIONS OF SECTION 254 WERE ALSO EXAMINED BY THE HONBLE HIGH COURT OF M.P. IN THE CASE OF PRAKASH C HAND MEHTA VS. CIT; 220 ITR 277, IN WHICH THEIR LORDSHIPS HAVE HEL D THAT SCOPE OF SECTION 254(2) OF THE INCOME-TAX ACT IS VERY LIMITE D AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. 8. THEIR LORDSHIPS OF THE APEX COURT IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHERS; 82 ITR 50 (SC) HAVE HELD THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATEN T MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DR AWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVAB LY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MIS TAKE APPARENT FROM RECORD. THEIR LORDSHIPS HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING HIM IN T HE WITNESS BOX, M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 8 THE AUTHORITIES SHOULD NOT ACT UPON THAT STATEMENT WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE THE WI TNESS, BUT THAT IS A MATTER NOT FOR RECTIFICATION BUT IT IS A MATTER R ELATING TO THE MERITS OF THE CASE AS TO WHETHER THE TRIBUNAL HAS GONE WRO NG IN NOT CONSIDERING THE AFFIDAVIT OF A PARTICULAR PERSON AN D HAS ACTED UPON THE STATEMENT OF THE SAME PERSON WHICH WAS RECORDED BY THE ITO WITHOUT BEING PERMITTED TO CROSS EXAMINE BY THE ASS ESSEE. THIS IS NOT A MATTER IN WHICH THE APPARENT ERROR IS INVOLVE D BUT IT IS A MATTER MORE OF MERIT AND CANNOT BE RECTIFIED WITHIN THE SC OPE OF RECTIFICATION. THE POWERS OF THE TRIBUNAL WHILE MA KING A RECTIFICATION WERE AGAIN EXAMINED BY THE HON'BLE APEX COURT IN TH E CASE OF CIT VS. HERO CYCLES PVT. LTD.; 228 ITR 463 IN WHICH THE IR LORDSHIPS HAVE HELD THAT RECTIFICATION CAN ONLY BE MADE WHEN A GLA RING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE OR DER BECOMES APPARENT FROM RECORD. RECTIFICATION IS NOT POSSIBL E IF THE QUESTION IS DEBATABLE. MOREOVER, A POINT WHICH WAS NOT EXAMINE D ON FACTS OR IN LAW CANNOT BE DEALT WITH AS MISTAKE APPARENT FROM R ECORD. IN THE CASE OF ITO VS. ITAT; 229 ITR 651 THEIR LORDSHIPS O F HON'BLE PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATIO N AFTER HOLDING THAT SECTION 254(2) OF THE ACT EMPOWERS THE TRIBUNA L TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIE W TO RECTIFYING A MISTAKE FROM RECORD. HOWEVER, SECTION 254(2) DOES NOT AUTHORIZE THE TRIBUNAL TO REVIEW ITS ORDER OR TO SIT IN APPEA L OVER ITS EARLIER ORDER. IF IT IS DONE, IT WOULD AMOUNT TO AN AMENDM ENT OF AN EARLIER ORDER WITH A VIEW TO RECTIFY A MISTAKE APPARENT FRO M RECORD, BUT IT WOULD BE AN ORDER PASSED ON REAPPRAISAL OF THE MATE RIAL FACTS AND CIRCUMSTANCES AND ON A FRESH APPLICATION OF THE LEG AL POSITION WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254( 2) OF THE ACT. 9. IN THE CASE OF MS. DEEKSHA SURI VS. ITAT; 232 IT R 395 THEIR LORDSHIPS OF HON'BLE DELHI HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE INCOME-TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT BEEN VESTED WITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGMENTS OR ORDERS. THE GROUNDS ON WHICH THE COUR TS MAY OPEN OR VACATE THEIR JUDGMENTS ARE GENERALLY MATTERS WHICH RENDER THE JUDGMENT VOID OR WHICH ARE SPECIFIED IN THE STATUTE S AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF SECTION 254(2) OF THE IN COME-TAX ACT, 1961 IS CLEAR. THE FOUNDATION FOR THE EXERCISING T HE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATEN T MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DR AWN PROCESS OF M.A. NO.60/LKW/2016 ASSESSMENT YEAR:1996-97 9 REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVAB LY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MIS TAKE APPARENT ON THE RECORD. 10. SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY HON'B LE GUWAHATI HIGH COURT IN THE CASE OF CIT VS. PRAHLAD RAI TODI 251 ITR 833 BY HOLDING THAT A BARE LOOK AT SECTION 254(2) WILL SH OW THAT THIS SECTION GIVES THE POWER TO RECTIFY ANY MISTAKE APPARENT FRO M THE RECORD AND NOT TO AMEND ANY ORDER PASSED BY IT AND TO MAKE SUC H AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSI NG OFFICER OR THE ASSESSEE. SO, WHEN WE SPEAK OF AMENDMENT OR RECTIF YING THE MISTAKE THE EARLIER ORDER CAN NEVER BE RECALLED BY THE TRIBUNAL. THE EARLIER ORDER MUST HOLD THE FIELD AND THE MISTAKE C AN BE RECTIFIED OR AMENDED CAN BE MADE TO THE ORDER. THE TRIBUNAL CAN NOT, IN LAW AND FACTS, RECALL AND DESTROY ITS FINAL ORDER AS A WHOL E WITH A VIEW TO RECTIFY THE SAME ORDER UNDER SECTION 254(2) OF THE ACT. THE ACTION OF THE TRIBUNAL ACTUALLY AMOUNTS TO REVIEW OF ITS EARL IER ORDER AND THAT POWER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. 11. WE, THEREFORE, FIND NO MERIT IN THESE MISCELLAN EOUS APPLICATIONS OF THE ASSESSEE, AS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL IS POINTED OUT. THE LD. COUNSEL FOR THE A SSESSEE HAS TRIED TO DISPUTE THE FINDINGS OF THE TRIBUNAL AND SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER SECT ION 254(2) OF THE ACT AND WE ACCORDINGLY REJECT THE MISCELLANEOUS APP LICATIONS. 4.2 RESPECTFULLY FOLLOWING THE ABOVE FINDINGS OF HO N'BLE TRIBUNAL, WE DISMISS THE PRESENT MISC. APPLICATION FILED BY THE ASSESSEE. 5. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 29/05/201 8) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:29/05/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW