M/s Rastriya Ispat Nigam Ltd, Visakhapatnam V. The ACIT, Circle -3(1), Visakhapatnam

MA 62/VIZ/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6491 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 24-12-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 24-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TH L PETER
• Keywords: Depreciation
• Section: 80HHC; 115JB; 54; 11

Judgement Text

MA 62 & 63 OF 10 RINL VSKP. 1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER MA NO S . 62 & 63 /VIZAG/ 20 10 (ARISING OUT OF ITA NOS.222 & 223/V/2007) ASSESSMENT YEAR S : 2003 - 04 & 2004 - 05 M/S. RASHTRIYA ISPAT NIGAM LTD VISAKHAPATNAM VS. ACIT, CIRCLE - 3(1) VISAKHAPATNAM (APPELLANT) (RESPONDENT) PAN NO.AABCR 0435L APPELLANT BY: SHRI K.C. DEVDAS, CA RESPONDENT BY: SHRI TH.L. PETER, CIT(DR) ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS MISCELLANEOUS APPLICATION IS PREFERRED BY TH E ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 5.2.2010 WITH THE SUBMI SSION THAT THE TRIBUNAL HAS NOT CONSIDERED THE JUDGEMENTS REFERRED TO BEFOR E IT AND HAS LAID DOWN A WRONG PROPOSITION OF LAW THEREBY AN ERROR IS COMMIT TED IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR A RECTIFICATION. 2. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED T HAT ONE OF THE GROUND RAISED BEFORE THE TRIBUNAL RELATE TO COMPUTATION OF PROFIT U/S 115JB OF THE INCOME-TAX ACT VIS--VIS PROFIT ELIGIBLE FOR DEDUCT ION U/S 80HHC OF THE I.T. ACT. DURING THE COURSE OF HEARING, IT WAS CONTENDE D THAT DEDUCTION U/S 80HHC SHOULD BE COMPUTED IN ACCORDANCE WITH THE BOO K PROFITS DETERMINED U/S 115JB OF THE INCOME-TAX ACT. IN SUPPORT OF ITS CONTENTION, THE ORDER OF THE TRIBUNAL IN THE CASE OF DCIT VS. GLENMARK LABOR ATORIES DECIDED ON 9.11.2009 WAS RELIED ON BY THE ASSESSEE. THE JUDGE MENT OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. AJANTA PHARMA LIM ITED 180 TAXMAN 494 WAS DISTINGUISHED BY THE ASSESSEE WITH THE SUBMISSI ON THAT ISSUE BEFORE THE MUMBAI HIGH COURT IS ENTIRELY DIFFERENT THAN THE IS SUE RAISED IN THE CASE OF M/S. SYNCOME FORMULATION (I) LTD. AND OTHERS 106 IT D 193 (SB). THEREFORE MA 62 & 63 OF 10 RINL VSKP. 2 THE IMPUGNED ISSUE IS COVERED BY THE ORDER OF THE S PECIAL BENCH OF THE TRIBUNAL. THE TRIBUNAL HAS WRONGLY OBSERVED THAT T HE ORDER OF THE TRIBUNAL IN THE CASE OF DCIT VS. GLENMARK LABORATORIES WAS NOT PLACED BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING, WHEREAS ITS COPY WAS FILED AT PG.NO.6 TO 7 OF THE COMPILATION IN THE FORM OF PRECEDENTS FILED BY THE ASSESSEES. THE TWO JUDGEMENTS OF THE MADRAS HIGH COURT IN THE CASE OF CIT VS. AMBIKA COTTON MILLS LTD. AND OTHERS 321 ITR 448 AND CIT VS . K.G. DENIM LTD. 180 TAXMAN 592 WERE RELIED ON BUT IT WAS NOT TAKEN INTO ACCOUNT BY THE TRIBUNAL WHILE ADJUDICATING THE IMPUGNED ISSUE. THEREFORE, THE NON-CONSIDERATION OF THE JUDGEMENTS REFERRED TO BY THE ASSESSEE DURING T HE COURSE OF HEARING AMOUNTS TO ERROR APPARENT IN THE ORDER OF THE TRIBU NAL. IN SUPPORT OF ITS CONTENTION ASSESEE HAS PLACED A RELIANCE UPON THE J UDGEMENT OF THE APEX COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT 295 ITR 466. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED IN THE LIGHT OF THESE FACTS THE ORDER OF THE TRIBUNAL MAY BE EITHER RECALLED ON THIS ISSUE OR BE RECTIFIED PROPERLY. 3. THE LD. D.R. ON THE OTHER HAND HAS SUBMITTED THA T WHILE ADJUDICATING THE IMPUGNED ISSUE, THE TRIBUNAL HAS EXAMINED THE R ELEVANT PROPOSITION OF LAW LAID DOWN BY THE SPECIAL BENCH IN THE CASE OF S YNCOME FORMULATION (I) LTD. (SUPRA) AND THE JUDGEMENT OF BOMBAY HIGH COURT IN THE CASE OF AJANTA PHARMA LTD. (SUPRA) BY WHICH THE ORDER OF THE SPECI AL BENCH OF THE TRIBUNAL WAS OVER RULED. THEREFORE, THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION WITH RESPECT TO THE PROPOSITION OF LAW ON COMPUTATION OF THE PROFITS ELIGIBLE FOR DEDUCTION U/S 80HHC FOR THE PURPOSE OF CALCULATION OF BOOK PROFIT U/S 115JB OF THE ACT. THEREFORE, NO ERROR APPARENT IN THE OR DER IS CREPT. 4. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE RI VAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE ORDER OF THE TRIBUNAL VI S--VIS THE MISCELLANEOUS APPLICATION AND THE JUDGEMENTS REFERRED TO BY THE P ARTIES. THE ISSUE IN DISPUTE RAISED BEFORE THE TRIBUNAL DURING THE COURS E OF HEARING OF THE APPEAL WAS WITH REGARD TO THE COMPUTATION OF PROFITS U/S 1 15JB OF THE INCOME-TAX MA 62 & 63 OF 10 RINL VSKP. 3 ACT VIS--VIS THE PROFITS ELIGIBLE FOR DEDUCTION U/ S 80HHC OF THE I.T. ACT. THE CONTENTIONS RAISED ON BEHALF OF THE ASSESSEE WAS TH AT THE DEDUCTION U/S 80HHC SHOULD BE COMPUTED IN ACCORDANCE WITH THE BOO K PROFIT DETERMINED U/S 115JB OF THE INCOME-TAX ACT PLACING A HEAVY REL IANCE UPON THE ORDER OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF DC IT VS. SYNCOME FORMULATION (I) LTD. (SUPRA). THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE PROFIT ELIGIBLE FOR DEDUCTION U/S 80HHC SH OULD BE COMPUTED ON THE BASIS OF THE BOOK PROFIT WORKED OUT U/S 115JB OF TH E I.T. ACT. THE LD. COUNSEL FOR THE ASSESSEE HAS HOWEVER ARGUED THAT IN THE CASE OF CIT VS. AJANTA PHARMA LTD. (SUPRA) THOUGH THE ORDER OF THE TRIBUNAL IN THE CASE OF SYNCOME FORMULATION (I) LTD. WAS OVER RULED YET THE RATIO LAID DOWN THEREIN WITH REGARD TO THE COMPUTATION OF AMOUNT OF PROFIT ELIGIBLE FOR DEDUCTION U/S 80HHC STILL HOLDS THE FIELD AND AS SUCH THE SAME BE FOLLOWED WHILE ADJUDICATING THE IMPUGNED ISSUE. 5. WHILE ADJUDICATING THE ISSUE OF COMPUTATION OF A MOUNT OF PROFITS ELIGIBLE FOR DEDUCTION U/S 80HHC FOR THE PURPOSE OF DETERMINING THE BOOK PROFIT U/S 115JB OF THE ACT, THE TRIBUNAL HAS EXAMI NED THE RELEVANT PROVISIONS OF SECTION 115JB AND 115JA OF THE I.T. ACT IN THE LIGHT OF THE ORDER OF THE TRIBUNAL IN THE CASE OF SYNCOME FORMULATION (I) LTD . (SUPRA) AND THE JUDGEMENT OF THE BOMBAY HIGH COURT IN THE CASE OF A JANTA PHARMA LTD. (SUPRA) AND THE TRIBUNAL HAS TAKEN A VIEW THAT THE ORDER OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF SYNCOME FORMULATION (I) LTD. (SUPRA) HAS BEEN OVER RULED BY THE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF AJANTA PHARMA LTD. (SUPRA). NOW THE LD. COUNSEL FOR THE A SSESSEE HAS CONTENDED THAT JUDGEMENT OF THE AJANTA PHARMA LTD. HAS BEEN R EVERSED BY THE APEX COURT AND THE JUDGEMENT IS REPORTED AT PG.NO.327 IT R 305(SC). THEREFORE, ONCE THE SUPREME COURT HAS REVERSED THE JUDGEMENT O F THE BOMBAY HIGH COURT IN THE CASE OF AJANTA PHARMA LTD., THE ORDER OF THE TRIBUNAL IN THE CASE OF SYNCOME FORMULATION (I) LTD. IS AGAIN RESTORED A ND THE TRIBUNAL BEING BOUND BY IT IS REQUIRED TO RECTIFY OR AMEND ITS ORD ER. MA 62 & 63 OF 10 RINL VSKP. 4 6. IN ORDER TO UNDERSTAND THE REAL CONTROVERSY IN T HIS CASE, WE WOULD LIKE TO PROCEED STEP BY STEP. FIRST OF ALL WE WOULD PRE FER TO DEAL WITH THE ORDER OF THE SPECIAL BENCH IN THE CASE OF SYNCOME FORMULATIO N (I) LTD. (SUPRA). IN THAT CASE, THE CONTROVERSY RAISED BEFORE THE TRIBUN AL WAS WITH REGARD TO THE PROFITS ELIGIBLE FOR DEDUCTION U/S 80HHC. FOR THE SAKE OF REFERENCE WE EXTRACT THE ACTUAL QUESTION REFERRED BEFORE THE SPECIAL BEN CH. WHETHER, ON FACTS AND IN LAW, THE ASSESSEE, WHILE COMPUTING BOOK PROFITS UNDER SECTION 115JA OF THE INCOME-TAX ACT, 1961, IS ENTITLED TO REDUCE THE NET PROFIT AS PER PROFIT & LOSS A/C BY (I) THE PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80 HHC ACTUALLY COMPUTED UNDER CLAUSE (A), (B) OR (C) OF SUB-SECTIO N (3), OR SUB- SECTION (3A) AS THE CASE MAY BE OR THE PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80 HHC COMPUTED WITH REFERENCE TO BOOK PROFITS (AFTER ADJU STMENTS) IN THE MANNER SPECIFIED IN SUB-SECTION (3) OR SUB-SECT ION (3A) OF SECTION 80HHC. 7. WHILE DEALING WITH THE ISSUE THE TRIBUNAL HAS CO NSIDERED THE CLAUSE III OF EXPLANATION BELOW SECTION 115J (1A) OF THE ACT A ND THE PROVISIONS OF CLAUSE VIII OF EXPLANATION BELOW SECTION 2 OF SECTION 115J A OF THE ACT. THOUGH THE LEGISLATURE HAS USED THE DIFFERENT LANGUAGE IN CLAU SE VIII OF SECTION 115JA AND CLAUSE III OF EXPLANATION OF 115J BUT THE TRIBU NAL HAS APPLIED THE ANALOGY OF CLAUSE III OF EXPLANATION 115J TO CLAUSE VIII OF EXPLANATION 115JA OF THE ACT AND HELD THAT THE ADJUSTED BOOK PROFIT OF A COM PANY ITSELF IS A GROSS TOTAL INCOME OF THAT ASSESSEE COMPANY AND THE DEDUCTION U /S 80HHC IS IN THAT WAY GIVEN OUT OF THAT GROSS TOTAL INCOME IN A CASE FALL ING UNDER MAT. THIS IN TURN MEANS THAT SECTION 80HHC SHOULD BE COMPUTED ON THE ADJUSTED BOOK PROFIT. THE TRIBUNAL FINALLY CONCLUDED THAT DEDUCTION U/S 8 0HHC IN CASE OF MAT ASSESSMENT IS TO BE WORKED OUT ON THE BASIS OF ADJU STED BOOK PROFIT AND NOT ON THE BASIS OF PROFIT COMPUTED UNDER THE REGULAR P ROVISIONS OF LAW APPLICABLE TO THE COMPUTATION OF PROFIT AND GAINS OF BUSINESS OR PROFESSION. 8. THIS PROPOSITION OF LAW LAID DOWN BY SPECIAL BEN CH OF THE TRIBUNAL IN THE CASE OF SYNCOME FORMULATION INDIA LTD. HAS BEEN OVER RULED BY THE MA 62 & 63 OF 10 RINL VSKP. 5 BOMBAY HIGH COURT IN THE CASE OF AJANTA PHARMA LTD. (SUPRA), THOUGH THE QUESTION RAISED BEFORE THE BOMBAY HIGH COURT IN AJA NTA PHARMA LTD. WAS ON DIFFERENT GROUNDS. IN THE CASE OF AJANTA PHARMA LT D., THE QUESTION REFERRED BEFORE THE BOMBAY HIGH COURT IS; WHETHER IN LAW FO R THE PURPOSE OF CALCULATING BOOK PROFIT U/S 115JB OF THE INCOME-TAX ACT UNDER EXPLANATION 1 SUB CLAUSE (IV) THE EXPORT PROFIT TO BE EXCLUDED FR OM THE BOOK PROFITS WOULD BE THE EXPORT PROFIT ALLOWED AS DEDUCTION U/S 80HHC AFTER RESTRICTING THE DEDUCTION AS PER PROVISIONS OF SUB-SECTION (1B) OF SECTION 80HHC OF THE ACT OR THE EXPORT PROFIT CALCULATED AS PER SUB-SECTION (3) AND (3A) OF SECTION 80HHC BEFORE APPLYING THE RESTRICTION CONTAINED IN SUB-SECTION 1B OF SECTION 80HHC?. THE BOMBAY HIGH COURT HAS ANSWERED THIS Q UESTION, HAVING EXAMINED THE RELEVANT PROVISIONS OF LAW IN THE LIGH T OF VARIOUS JUDICIAL PRONOUNCEMENTS AND HELD THAT, FOR THE PURPOSE OF CA LCULATING BOOK PROFIT U/S 115JB OF THE INCOME-TAX ACT UNDER EXPLANATION 1 SUB -CLAUSE IV, THE EXPORT PROFIT TO BE EXCLUDED FROM THE BOOK PROFITS, WOULD BE THE EXPORT PROFIT ALLOWED AS DEDUCTION U/S 80HHC AFTER RESTRICTING TH E DEDUCTION AS PER THE PROVISIONS OF SUB SECTION 1B OF SECTION 80HHC OF TH E ACT. WHILE ADJUDICATING THE ISSUE THE BOMBAY HIGH COURT HAS ALSO EXAMINED T HE ORDER OF THE SPECIAL BENCH IN THE CASE OF SYNCOME FORMULATION INDIA LTD. AS ALSO THE CASE OF GOVIND RUBBER PVT. LTD. 89 ITD 457 AND CATEGORICALL Y HELD THAT THESE DECISIONS IN VIEW OF THIS JUDGEMENT STAND OVER RULE D. NO DOUBT THE ISSUE BEFORE THE SPECIAL BENCH OF THE TRIBUNAL IN THE CAS E OF SYNCOME FORMULATION (I) LTD. IS DIFFERENT THAN THE ISSUE INVOLVED IN TH E CASE OF AJANTA PHARMA LTD., BUT THE HONBLE BOMBAY HIGH COURT HAD AN OCCASION T O EXAMINE THE RATIO LAID DOWN BY THE TRIBUNAL IN THE CASE OF SYNCOME FORMULA TION INDIA LTD. AND THEY HAVE OVER RULED THE SAME IN SO MANY WORDS. TH E RELEVANT OBSERVATIONS OF THE HONBLE BOMBAY HIGH COURT IS EXTRACTED HEREU NDER: WE HAVE HAD THE BENEFIT OF GOING THROUGH REASONIN G OF THE ORDERS IN SYNCOME FORMULATION (I) LTD. CASE (SUPRA) AS ALSO I N THE CASE OF GOVIND RUBBER PVT. LTD. (SUPRA). IT IS NOT POSSIBLE TO AG REE WITH THE VIEW TAKEN BY THE BENCHES. THOSE DECISIONS IN VIEW OF THIS JUDGE MENT STANDS OVER RULED. MA 62 & 63 OF 10 RINL VSKP. 6 8.1 ONCE THE ORDER OF THE SPECIAL BENCH OF THE TRIB UNAL IN THE CASE OF SYNCOME FORMULATION (I) LTD. HAS BEEN OVER RULED BY THE JURISDICTIONAL HIGH COURT OF BOMBAY, IT LOST ITS BINDING FORCE ON THE S UBORDINATE BENCHES. THEREFORE, THE TRIBUNAL HAS GIVEN ITS SPECIFIC FIND ING IN ITS ORDER THAT THE ISSUE IMPUGNED IS TO BE ADJUDICATED INDEPENDENTLY WITHOUT BEING INFLUENCED BY THE ORDER OF THE SPECIAL BENCH. THERE AFTER THE TRIBUN AL EXAMINED THE ISSUE INDEPENDENTLY AND HAS GIVEN ITS FINDING IN ITS PARA NO.12 TO 19 OF ITS ORDER. 9. THOUGH THE JUDGEMENT OF BOMBAY HIGH COURT IN THE CASE OF AJANTA PHARMA HAS BEEN REVERSED BY THE SUPREME COURT BUT I N THOSE CASES, THE QUESTION REFERRED BEFORE THE HIGH COURT AND SUPREME COURT WAS ENTIRELY DIFFERENT THAN THE ISSUE INVOLVED IN THE INSTANT CA SE. THE QUESTION REFERRED BEFORE THE SUPREME COURT WAS WHETHER FOR DETERMINI NG THE BOOK PROFIT IN TERMS OF SECTION 115JB, THE NET PROFIT AS SHOWN IN THE P&L ACCOUNT HAVE TO BE REDUCED BY THE AMOUNT OF PROFITS ELIGIBLE FOR DE DUCTION U/S 80HHC OR BY THE AMOUNT OF DEDUCTION U/S 80HHC? REVERSING THE J UDGEMENT OF BOMBAY HIGH COURT THE HONBLE APEX COURT HAVE CATEGORICALL Y HELD THAT CLAUSE IV OF THE EXPLANATION TO SECTION 115JB COVERS FULL EXPORT PROFIT OF 100% AS ELIGIBLE PROFIT AND THE SAME CANNOT BE REDUCED TO 80% BY REL YING ON SECTION 80HHC(IB). THE RELEVANT OBSERVATIONS OF THE APEX C OURT IS EXTRACTED HEREUNDER: ONE OF THE CONTENTIONS RAISED ON BEHALF OF THE DEPA RTMENT WAS THAT IF CL. (IV) OF EXPLANATION TO S. 115JB IS READ IN ENTI RETY INCLUDING THE LAST LINE THEREOF (WHICH READS AS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT SECTION), IT BECOMES CLEAR THAT THE AMOUNT OF PROFITS ELIGIBL E FOR DEDUCTION UNDER S. 80HHC, COMPUTED UNDER CL. (A) OR CL. (B) OR CL. (C) OF SUB-S. (3) OR SUB-S. (3A), AS THE CASE MAY BE, IS SUBJECT TO THE CONDITI ONS SPECIFIED IN THAT SECTION. ACCORDING TO THE DEPARTMENT, THE ASSESSEE HEREIN IS TRYING TO READ THE VARIOUS PROVISIONS OF S. 80HHC IN ISOLATION WHE REAS AS PER CL. (IV) OF EXPLANATION TO S. 115JB, IT IS CLEAR THAT BOOK PROF IT SHALL BE REDUCED BY THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER S. 8 0HHC AS COMPUTED UNDER CL. (A) OR CL. (B) OR CL. (C) OF SUB-S. (3) OR SUB- S. (3A), AS THE CASE MAY BE, OF THAT SECTION AND SUBJECT TO THE CONDITIONS SPECIFIE D IN THAT SECTION, THEREBY MEANING THAT THE DEDUCTION ALLOWABLE WOULD BE ONLY TO THE EXTENT OF DEDUCTION COMPUTED IN ACCORDANCE WITH THE PROVISION S OF S. 80HHC. THUS, ACCORDING TO THE DEPARTMENT, BOTH ELIGIBILITY AS WELL AS DEDUCTIBILITY OF THE MA 62 & 63 OF 10 RINL VSKP. 7 PROFIT HAVE GOT TO BE CONSIDERED TOGETHER FOR WORKI NG OUT THE DEDUCTION AS MENTIONED IN CL. (IV) OF EXPLANATION TO S. 115JB. WE FIND NO MERIT IN THIS ARGUMENT. IF THE DICHOTOMY BETWEEN ELIGIBILITY O F PROFIT AND DEDUCTIBILITY OF PROFIT IS NOT KEPT IN MIND THEN S. 115JB WILL CE ASE TO BE A SELF-CONTAINED CODE. IN S. 115JB, AS IN S. 115JA, IT HAS BEEN CLE ARLY STATED THAT THE RELIEF WILL BE COMPUTED UNDER S. 80HHC(3)/(3A), SUBJECT TO THE CONDITIONS UNDER SUB- CLS. (4) AND (4A) OF THAT SECTION. THE CONDITIONS ARE ONLY THAT THE RELIEF SHOULD BE CERTIFIED BY THE CHARTERED ACCOUNTANT. S UCH CONDITION IS NOT A QUALIFYING CONDITION BUT IT IS A COMPLIANCE CONDITI ON. THEREFORE, ONE CANNOT RELY UPON THE LAST SENTENCE IN CL. (IV) OF EXPLANAT ION TO S. 115JB [SUBJECT TO THE CONDITIONS SPECIFIED IN SUB-CLS. (4) AND (4A) O F THAT SECTION] TO OBLITERATE THE DIFFERENCE BETWEEN ELIGIBILITY AND DEDUCTIBI LITY OF PROFITS AS CONTENDED ON BEHALF OF THE DEPARTMENT. 10. HAVING CAREFULLY EXAMINED THE JUDGEMENT OF THE BOMBAY HIGH COURT AND THE APEX COURT OF AJANTA PHARMA LTD., WE FIND T HAT THE QUESTION REFERRED BEFORE THEM WAS ENTIRELY DIFFERENT THAN THAT OF THE ISSUE INVOLVED IN THE INSTANT CASE. BUT BOMBAY HIGH COURT HAS CATEGORICA LLY OVER RULED THE ORDER OF THE SPECIAL BENCH IN THE CASE OF SYNCOME FORMULA TION (I) LTD. (SUPRA) WHICH HAS BEEN RENDERED ON THE ISSUE IN DISPUTE. T HEREFORE, WE FIND NO MISTAKE IN THE FINDINGS OF THE TRIBUNAL IN THE INST ANT CASE IN ITS PARA NO.11 OF ITS ORDER THAT ONCE THE JUDGEMENT OF THE SPECIAL B ENCH HAS BEEN OVER RULED BY ITS JURISDICTIONAL HIGH COURT IT LOOSES ITS BIND ING FORCE OVER OTHER BENCH OF THE TRIBUNAL AND WE THEREFORE OF THE VIEW THAT THE QUESTION POSED BEFORE US SHOULD BE EXAMINED INDEPENDENTLY WITHOUT BEING INFL UENCED WITH THE PROPOSITION LAID DOWN BY THE SPECIAL BENCH IN THE C ASE OF SYNCOME FORMULATION (I) LTD. AFTER RECORDING THESE OBSERV ATIONS THE TRIBUNAL HAS ADJUDICATED THE ISSUE ON MERIT INDEPENDENTLY. 11. THOUGH WE ARE NOT REQUIRED TO RE-EXAMINE THE IS SUE IN DISPUTE IN MISCELLANEOUS APPLICATION YET WE HAVE EXAMINED THE RELEVANT PROVISIONS OF THE SECTION 115J AND 115JB AND THE CIRCULAR NO.680 DATED 21.2.1994 WHICH WERE CONSIDERED BY THE SPECIAL BENCH OF THE TRIBUNA L IN THE CASE OF SYNCOME FORMULATION (I) LTD. (SUPRA) IN ORDER TO FIND OUT W HETHER THE FINDINGS OF THE TRIBUNAL IN THE INSTANT CASE IS IN ACCORDANCE WITH LAW OR NOT. THE RELEVANT CLAUSES WHICH DEALS WITH THE IMPUGNED ISSUE ARE CLA USE (III) OF EXPLANATION BELOW SUB SECTION (1A) OF 115J AND CLAUSE (IV) OF E XPLANATION 1 BELOW SUB MA 62 & 63 OF 10 RINL VSKP. 8 SECTION (II) OF 115JB OF THE ACT. THE LANGUAGE USE D IN THESE CLAUSES ARE DIFFERENT, THEREFORE, THEY HAVE TO BE INTERPRETED D IFFERENTLY. FOR THE SAKE OF REFERENCE, WE EXTRACT THESE CLAUSES AS UNDER: 115J. (1) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT,.. (1A). EXPLANATION.. .. . (I).. (II). (III) THE AMOUNTS [AS ARRIVED AT AFTER IN CREASING THE NET PROFIT BY THE AMOUNTS REFERRED TO IN CLAUSES (A) TO (F) AND REDUC ING THE NET PROFIT BY THE AMOUNTS REFERRED TO IN CLAUSES (I) AND (II)] ATTRIB UTABLE TO THE BUSINESS, THE PROFITS FROM WHICH ARE ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHC OR SECTION 80HHD; SO, HOWEVER, THAT SUCH AMOUNTS ARE COMPUTED IN THE MANNER SPECIFIED IN SUB-SECTION (3) OR SUB-SECTION (3A) OF SECTION 80HHC OR SUB- SECTION (3) OF SECTION 80HHD, AS THE CASE MAY BE; O R 115JB. (1) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT, (2) . . EXPLANATION[1].. . . (I) .. (II) .. (III) . (IV) THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHC COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CL AUSE (C) OF SUB-SECTION (3) OR SUB-SECTION (3A), AS THE CASE MAY BE, OF THA T SECTION, AND SUBJECT TO THE CONDITIONS SPECIFIED IN THAT SECTION; OR 12. WE HAVE ALSO EXAMINED THE CIRCULAR NO.680 DATED 21.2.1984 ISSUED BY THE CBDT WITH REFERENCE TO SECTION 115J ONLY AND IN THAT CIRCULAR THE BOARD HAS LAID DOWN THE DIFFERENT STEPS FOR COMPUTING THE DEDUCTION CONTEMPLATED UNDER EXPLANATION (III) TO SECTION 115J OF THE ACT. THE SAID STEPS ARE EXTRACTED HEREUNDER: ACCORDINGLY, THE DEDUCTION CONTEMPLATED UNDER EXPL ANATION (III) TO SECTION 115J SHOULD BE COMPUTED ACCORDING TO THE FO LLOWING STEPS:- MA 62 & 63 OF 10 RINL VSKP. 9 (I) IT SHOULD BE FIRST DECIDED WHETHER THE ASSESSEE CAR RIES ON A BUSINESS, THE PROFITS FROM WHICH ARE ELIGIBLE FOR D EDUCTION UNDER SECTION 80HHC OR 80HHD; (II) IF SO, THE NET PROFIT SHOWN IN THE PROFIT AND LOSS ACCOUNT OF THE RELEVANT PREVIOUS YEAR SHOULD BE ADJUSTED AS PER CL AUSES (A) TO (F) AND (I) AND (II) OF THE SAID EXPLANATION. (III) IF THE BUSINESS EXCLUSIVELY CONSISTS OF THE TYPES O F BUSINESS WHICH ARE ELIGIBLE FOR DEDUCTION UNDER SECTION 80HH C/80HHD THE WHOLE OF SUCH AMOUNT ARRIVED AT AS PER (II) ABO VE SHOULD BE ALLOWED AS DEDUCTION; AND (IV) IF NOT, THE PROPORTION OF THE EXPORT TURNOVER TO TH E TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE AS REQUIRED UNDER SECTION 80HHC(3)(B) OR THE PROPORTION OF THE TURNOVER IN RESPECT OF THE SALES MADE TO EXPORT HOUSE OR TRADIN G HOUSE TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY TH E ASSESSEE AS REQUIRED UNDER SECTION 80HHC(3A)(B) OR, AS THE CASE MAY BE, THE PROPORTION OF THE RECEIPTS SPECIFIED IN SECTION 80HHD(2) TO THE TOTAL RECEIPTS OF THE BUSINESS CARRIED ON BY TH E ASSESSEE SHOULD BE DETERMINED AND THE SAID PROPORTION SHOULD BE APPLIED TO THE AMOUNT ARRIVED AT (II) ABOVE TO DETERMINE TH E QUANTUM OF DEDUCTION UNDER SECTION 115J. 13. NO CIRCULAR HAS BEEN ISSUED WITH REFERENCE TO T HE CLAUSE (IV) OF EXPLANATION 1 TO SECTION 115JB OF THE ACT AS THERE WAS NO AMBIGUITY IN THE SAID PROVISION. BUT THE LANGUAGE USED IN THIS PROV ISO IS ENTIRELY DIFFERENT FROM THE LANGUAGE USED IN CLAUSE (III) OF EXPLANATION IN SECTION 115J OF THE ACT. IN CLAUSE (III) IT HAS BEEN SPECIFICALLY MENTIONED THA T THE AMOUNT, AS ARRIVED AT AFTER ADJUSTING THE NET PROFIT AS SHOWN IN THE PROF IT & LOSS ACCOUNT IN THE RELEVANT PREVIOUS YEAR BY THE ADJUSTMENT REFERRED T O IN CLAUSE (A) TO (F) AND (I) & (II) OF THE SAID EXPLANATION SHOULD BE ALLOWE D AS DEDUCTION, COMPUTING THE DEDUCTION, HOWEVER, IN THE MANNER SPECIFIED U/S 80HHC(3) OR (3A) OR 80HHD(3). BUT IN CLAUSE (IV) OF EXPLANATION 1 TO S ECTION 115JB IT IS SPECIFICALLY CLEAR THAT THE AMOUNTS OF PROFITS ELIG IBLE FOR DEDUCTION U/S 80HHC COMPUTED UNDER CLAUSE(A) OR CLAUSE (B) OR CLAUSE (C ) OF SUB SECTION 3 OR SUB SECTION 3A AS THE CASE MAY BE OF THAT SECTION. NO REFERENCE OF ADJUSTED BOOK PROFIT AS GIVEN IN CLAUSE (III) HAS BEEN MADE IN TH IS CLAUSE (IV). THEREFORE, IT IS NOT PROPER TO ADOPT THE ANALOGY LAID DOWN WITH R ESPECT TO CLAUSE (III) OF EXPLANATION OF SECTION 115J FOR THE PROVISIONS OF C LAUSE (IV) OF EXPLANATION 1 OF SECTION 115JB OF THE ACT. THE TRIBUNAL HAS ADJU DICATED THE IMPUGNED MA 62 & 63 OF 10 RINL VSKP. 10 ISSUE IN THE LIGHT OF THE TEXT AND TENURE OF THE LA NGUAGE USED BY THE LEGISLATURE IN CLAUSE (IV) OF EXPLANATION 1 TO SECT ION 115JB OF THE ACT. 14. WE HAVE BEEN CARRIED THROUGH THE RECENT JUDGEME NT OF THE KERALA HIGH COURT IN THE CASE OF CIT VS. PACKWORTH UDYOG L TD. 331 ITR 416 (KERALA) (FULL BENCH) IN WHICH COMPUTATION OF PROFITS ELIGIB LE FOR DEDUCTION U/S 80HHC FOR CALCULATION OF BOOK PROFIT U/S 115JB OF THE I.T . ACT WAS RAISED AND THE HONBLE KERALA HIGH COURT HAS EXAMINED THIS ISSUE I N THE LIGHT OF JUDGEMENT OF APEX COURT IN THE CASE OF AJANTA PHARMA LTD. (SU PRA) AND OTHER JUDGEMENTS RENDERED ON THIS ISSUE AND ALSO IN THE L IGHT OF RELEVANT PROVISIONS OF THE ACT AND THEIR LORDSHIP HAVE HELD THAT ASSESS EES ARE ENTITLED TO DEDUCTION U/S 80HHC COMPUTED IN ACCORDANCE WITH SUB SECTION 3 AND 3A OF SECTION 80HHC OF THE ACT BECAUSE IT IS EXPRESSLY SO PROVIDED UNDER CLAUSE (IV) OF SECTION 115JB (2) OF THE ACT. THE RELEVANT OBSE RVATIONS OF THE HONBLE KERALA HIGH COURT ARE EXTRACTED HEREUNDER: AFTER HEARING BOTH SIDES AND AFTER GOING THROUGH TH E DECISIONS ABOVE REFERRED, PARTICULARLY THAT OF THE SUPREME COURT, W E FEEL THAT THE ASSESSEES ARE ENTITLED TO DEDUCTION UNDER SECTION 80HHC COMPU TED IN ACCORDANCE WITH SUB-SECTIONS(3) AND (3A) OF SECTION 80HHC OF THE AC T BECAUSE IT IS EXPRESSLY SO PROVIDED UNDER CLAUSE (IV) OF SECTION 115JB(2) O F THE ACT. ALL THAT THE SUPREME COURT HAS HELD IS THAT THE CEILING CONTAINE D IN SECTION 80HHC(1B) IS NOT APPLICABLE FOR THE PURPOSE OF GRANTING DEDUCTIO N UNDER CLAUSE (IV) ABOVE IN THE COMPUTATION OF BOOK PROFIT. HOWEVER, THERE IS NOTHING TO INDICATE IN THE SUPREME COURT DECISION THAT THE ELIGIBLE DEDUCT ION OF EXPORT PROFIT UNDER CLAUSE (IV) ABOVE IN THE COMPUTATION OF BOOK PROFIT CAN BE COMPUTED IN ANY OTHER MANNER OTHER THAN WHAT IS PROVIDED IN SUB-SEC TIONS (3) AND (3A) OF SECTION 80HHC OF THE ACT. WHAT IS CLEARLY STATED I N CLAUSE (IV) IS THAT DEDUCTION OF EXPORT PROFIT IN THE COMPUTATION OF BO OK PROFIT IS THE SAME AMOUNT OF PROFIT ELIGIBLE FOR DEDUCTION UNDER SECT ION 80HHC COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) OF SUB -SECTION (3) OR SUB-SECTION (3A) OF THE SAID SECTION. SO MUCH SO, COMPUTATION OF EXPORT PROFIT HAS TO BE DONE ONLY IN ACCORDANCE WITH THE METHOD PROVIDED UN DER SECTION 80HHC WHICH IS IN FACT DONE IN THE COMPUTATION OF BUSINES S PROFIT IF THE ASSESSMENT WAS ON THE TOTAL INCOME COMPUTED UNDER THE OTHER PR OVISIONS OF THE ACT. MAT ASSESSMENT IS ONLY AN ALTERNATIVE SCHEME OF ASS ESSMENT AND WHAT IS CLEAR FROM CLAUSE (IV) ABOVE IS THAT EVEN IN THE AL TERNATIVE SCHEME OF ASSESSMENT UNDER SECTION 115JB THE ASSESSEE IS ENTI TLED TO DEDUCTION OF EXPORT PROFIT UNDER SECTION 80HHC. IN OTHER WORDS, EXPORT PROFIT ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHC IS ALLOWABLE UNDER BO TH THE SCHEME OF MA 62 & 63 OF 10 RINL VSKP. 11 ASSESSMENT. SO MUCH SO, THE ASSESSEES ARE CERTAINL Y ENTITLED TO DEDUCTION UNDER SECTION 80HHC BUT IT IS ONLY BY FOLLOWING THE METHOD PROVIDED UNDER SUB-SECTIONS (3) AND (3A) OF SECTION 80HHC. HOWEVE R, BY VIRTUE OF THE DECISION OF THE SUPREME COURT ABOVE REFERRED, WE FE EL THE RESTRICTION CONTAINED IN SECTION 80AB OR SECTION 80B(5) COULD N OT BE APPLIED IN AS MUCH AS CARRY FORWARD OF BUSINESS LOSS OR DEPRECIATION S HOULD NOT BE FIRST SET OFF LEAVING GROSS TOTAL INCOME NIL, WHICH DISENTITLES T HE ASSESSEE FOR DEDUCTION UNDER THE OTHER PROVISIONS OF CHAPTER VIA-C WHICH I NCLUDES SECTION 80HHC ALSO. BUT THE ASSESSEES CONTENTION THAT EXPORT PR OFIT HAS TO BE COMPUTED WITH REFERENCE TO THE PROFIT AND LOSS ACCOUNT PREPA RED UNDER THE COMPANIES ACT IS EQUALLY UNACCEPTABLE BECAUSE THERE IS NO SUC H PROVISION IN SECTION 80HHC TO DETERMINE EXPORT PROFIT WITH REFERENCE TO THE PROFIT AND LOSS ACCOUNT MAINTAINED UNDER THE COMPANIES ACT. CONSIS TENT WITH THE DECISION OF THE SUPREME COURT, WE HOLD THAT THE ASSESSEES AR E ENTITLED TO DEDUCTION OF EXPORT PROFIT UNDER SECTION 80HHC AND THE RELIEF IS TO BE GRANTED IN TERMS OF SUB-SECTIONS (3) AND (3A) OF THE SAID SECTION. 15. WE HAVE ALSO EXAMINED THE ORDER OF THE TRIBUNAL IN THE CASE OF DCIT VS. GLENMARK LABORATORIES AND THE JUDGEMENTS OF THE MADRAS HIGH COURT IN THE CASE OF CIT VS. AMBIKA COTTON MILLS LTD. AND OT HERS 321 ITR 448, CIT VS. K.G. DENIM LIMITED 180 TAXMAN 590 AND CIT VS. RAJNI KANTH SCNELDER AND ASSOCIATES PVT. LTD. 302 ITR 220 AND WE FIND THAT T HE TRIBUNAL HAS PASSED THE ORDER IN ACCORDANCE WITH LAW AND THE LAW LAID DOWN BY THE APEX COURT AND THE KERALA HIGH COURT IN THE AFORESAID CASES AND TH ERE WOULD NOT BE ANY CHANGE IN THE FINDINGS OF THE TRIBUNAL HAD THESE JU DGEMENTS WERE TAKEN INTO ACCOUNT BY THE TRIBUNAL WHILE DISPOSING OF THE APPE AL. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE TRIBUNAL. 16. MOREOVER, THE SCOPE OF SECTION 254(2) IS VERY L IMITED AND ONLY THOSE ERRORS CAN BE RECTIFIED WHICH ARE APPARENT FROM THE RECORD. THE SCOPE OF PROVISIONS OF SECTION 254(2) HAS BEEN DEFINED REPEA TEDLY BY THE APEX COURT AND THE VARIOUS HIGH COURTS AT A DIFFERENT POINT OF TIME. 17. IT HAS ALSO BEEN HELD BY THE APEX COURT AND VAR IOUS HIGH COURTS THAT UNDER SECTION 254(2) OF THE I.T. ACT THE TRIBUNAL C AN RECTIFY ONLY THOSE MISTAKES WHICH ARE ARITHMETICAL OR CLERICAL OR APPA RENT IN ITS ORDER. THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDE R UNDER THE GARB OF RECTIFICATION. THE SCOPE OF SECTION 254(2) OF THE ACT HAS BEEN REPEATEDLY MA 62 & 63 OF 10 RINL VSKP. 12 EXAMINED BY THE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT IF THE TRIBUNAL COMMITS AN ERROR OF JUDGEMENT, THAT ER ROR CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT A S THE TRIBUNAL IS NOT EMPOWERED BY THE STATUTE TO REVIEW ITS OWN ORDER. I N THE CASE OF CIT VS. VARDHMAN SPINNING; 226 ITR 296 THEIR LORDSHIPS OF T HE PUNJAB AND HARYANA HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE AP PELLATE TRIBUNAL IS CREATION OF STATUTES AND IT CAN EXERCISE ONLY THOSE POWERS W HICH HAVE BEEN CONFERRED UPON IT. THE ONLY POWER CONFERRED ON THE TRIBUNAL U /S 254(2) OF THE I.T. ACT, 1961 IS TO RECTIFY ANY MISTAKE APPARENT FROM RECORD . THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED BY THE AUTHORITIES U NDER THE ACT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOSED INHERENT R IGHTS. U/S 254(1) OF THE ACT, THE APPELLATE TRIBUNAL, AFTER HEARING THE CONT ESTING 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 PASSED BY IT U/S 254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD EITHER SUO MOTU OR ON AN APPLICATION MADE. WHAT CAN BE RECTIFIED UNDER THIS SECTION IS A MISTA KE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO EL ABORATE REASONS 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 RECORD. 18. IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD IN DUSTRIES (P) LTD., 226 ITR 34 THEIR LORDSHIPS OF CALCUTTA HIGH COURT HAVE EXPRESSED SIMILAR OBSERVATIONS AFTER HOLDING THAT UNDER SECTION 254( 2) OF THE INCOME-TAX ACT, AN ORDER, WHICH HAS BEEN PASSED BY THE TRIBUNAL REA CHES FINALITY THE MOMENT THE SAME IS PASSED; CANNOT BE TOUCHED THEREAFTER. BY SECTION 254(2) OF THE ACT, THE TRIBUNAL, HOWEVER, HAS BEEN AUTHORIZED TO RECTIFY MISTAKES IN ITS ORDERS, WHICH ARE APPARENT ON THE FACE OF THE RECOR DS. THE EXPRESSION `MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EI THER CLERICAL OR GRAMMATICAL OR ARITHMETICAL OR OF LIKE NATURE, WHIC H CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO RE-ARGUE THE MATTER OR TO RE-APPRAISE THE FACT AS APPEARING FROM THE RECORDS. IN ANOTHER CASE CIT V S. GOLAL CHAND AGARWAL; MA 62 & 63 OF 10 RINL VSKP. 13 202 ITR 14 THEIR LORDSHIPS OF CALCUTTA HIGH COURT H AVE ALSO HELD THAT SECTION 254(2) OF THE INCOME-TAX ACT, 1961 EMPOWERS THE TRI BUNAL TO AMEND ITS ORDER PASSED U/S 254(1) TO RECTIFY ANY MISTAKE APPA RENT FROM THE RECORD EITHER SUO MOTU OR ON AN APPLICATION. IF IN ITS OR DER THERE IS NO MISTAKE WHICH IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, T HE EXERCISE OF THE JURISDICTION BY THE TRIBUNAL U/S 254(2) WILL BE ILL EGAL AND IMPROPER. AN OVERSIGHT OF THE 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 U NDER SECTION 254(2) BUT A REFERENCE PROCEEDINGS U/S 256. THE NORMAL RULE IS THAT THE REMEDY BY WAY OF REVIEW IS A CREATURE OF THE STATUTE AND UNLESS CLOT HED WITH SUCH POWER BY THE STATUTE, NO AUTHORITY CAN EXERCISE THE POWER. REVI EW PROCEEDINGS IMPLY PROCEEDINGS WHERE A PARTY, AS OF RIGHT, CAN APPLY F OR RECONSIDERATION OF THE MATTER, ALREADY DECIDED UPON, AFTER A FRESH HEARING ON THE MERITS OR THE CONTROVERSY BETWEEN THE PARTIES. SUCH REMEDY IS CE RTAINLY NOT PROVIDED BY THE INCOME-TAX ACT, 1961, IN RESPECT OF PROCEEDINGS BEFORE THE TRIBUNAL. 19. THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. ITAT; 143 CTR 446 HAS HELD THAT SUB-SECTION (1) OF SECTION 2 54 CONFERS AMPLE POWERS ON THE TRIBUNAL TO PASS SUCH ORDERS IN ANY APPEAL F ILED BEFORE IT AS IT THINKS FIT. SUB-SECTION (2) OF SECTION 254 POSTULATES THA T THE TRIBUNAL MAY AMEND ANY ORDER PASSED BY IT UNDER SUB-SEC. (1) OF SECTIO N 254 WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. T HE POWER OF THE TRIBUNAL CONFERRED BY SUB-SECTION (2) OF SECTION 254 FOR REC TIFYING ANY MISTAKE 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 MISTAKE IN THE ORDER WHICH IS APPARENT FROM THE RECORD IS QUITE ANOTHER. IN THE ABSENCE O F ANY STATUTORY PROVISION FOR REVIEW BY TRIBUNAL, THE ORDER PASSED BY THE TRI BUNAL CANNOT BE RECALLED OR REVIEWED UNDER SECTION 254(2) OF THE ACT. THE PRO VISIONS OF SECTION 254 WERE ALSO EXAMINED BY THE HONBLE HIGH COURT OF M.P . IN THE CASE OF PRAKASH CHAND MEHTA VS. CIT; 220 ITR 277 IN WHICH THEIR LOR DSHIP HAVE HELD THAT MA 62 & 63 OF 10 RINL VSKP. 14 SCOPE OF SECTION 254(2) OF THE INCOME-TAX ACT IS VE RY LIMITED AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. 20. THEIR LORDSHIPS OF THE APEX COURT IN THE CASE O F T.S. BALARAM ITO VS. VOLKART BROTHERS; 82 ITR 50 (SC) HAVE HELD THAT A M ISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NO T SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A D EBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR LORDSHIP S HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING HIM IN THE WITNESS BOX, THE AUTHORITIES SHOULD NOT ACT UPON TH AT STATEMENT WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAM INE THE WITNESS, BUT THAT IS A MATTER NOT FOR RECTIFICATION BUT IT IS A MATTE R RELATING TO THE MERITS OF THE CASE AS TO WHETHER THE TRIBUNAL HAS GONE WRONG IN N OT CONSIDERING THE AFFIDAVIT OF A PARTICULAR PERSON AND HAS ACTED UPON THE STATEMENT OF THE SAME PERSON WHICH WAS RECORDED BY THE ITO WITHOUT BEING PERMITTED TO CROSS EXAMINE BY THE ASSESSEE. THIS IS NOT A MATTER IN W HICH THE APPARENT ERROR IS INVOLVED BUT IT IS A MATTER MORE OF MERIT AND CANNO T BE RECTIFIED WITHIN THE SCOPE OF RECTIFICATION. THE POWERS OF THE TRIBUNAL WHILE MAKING A RECTIFICATION WERE AGAIN EXAMINED BY THE APEX COURT IN THE CASE O F CIT VS. HERO CYCLES PVT. LTD.; 228 ITR 463 IN WHICH THEIR LORDSHIPS HAV E HELD THAT RECTIFICATION CAN ONLY BE MADE WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM REC ORD. RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. MOREOVER, A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS MISTAKE APPARENT FROM RECORD. IN THE CASE OF ITO VS. ITAT; 229 ITR 651 T HEIR LORDSHIPS OF PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATIO N AFTER HOLDING THAT SECTION 254(2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFYI NG A MISTAKE FROM RECORD. HOWEVER, SECTION 254(2) DOES NOT AUTHORIZE THE TRIB UNAL TO REVIEW ITS ORDER OR TO SIT IN APPEAL OVER ITS EARLIER ORDER. IF IT IS DONE, IT WOULD AMOUNT TO AN AMENDMENT OF AN EARLIER ORDER WITH A VIEW TO RECTIF Y A MISTAKE APPARENT FROM MA 62 & 63 OF 10 RINL VSKP. 15 RECORD, BUT IT WOULD BE AN ORDER PASSED ON REAPPRAI SAL OF THE MATERIAL FACTS AND CIRCUMSTANCES AND ON A FRESH APPLICATION OF THE LEGAL POSITION WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. 21. IN THE CASE OF MS. DEEKSHA SURI VS. ITAT; 232 I TR 395 THEIR LORDSHIPS OF DELHI HIGH COURT HAVE HELD IN SPECIFIC TERMS THA T 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 TRIBU NAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGEMENTS OR ORDERS. THE GROUND S ON WHICH THE COURTS MAY OPEN OR VACATE THEIR JUDGEMENTS ARE GENERALLY M ATTERS WHICH RENDER THE JUDGEMENT VOID OR WHICH ARE SPECIFIED IN THE STATUT ES AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF SECTION 254(2) OF THE IN COME-TAX ACT, 1961 IS CLEAR. THE FOUNDATION FOR THE EXERCISING THE JURIS DICTION 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 APPAR ENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A D EBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. 22. SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY THE G UWAHATI 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 SHOW THAT THIS SECTION GIVES THE POWER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND NOT TO AMEND A NY ORDER PASSED BY IT AND TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGH T TO ITS NOTICE BY THE ASSESSING OFFICER OR THE ASSESSEE. SO, WHEN WE SPE AK OF AMENDMENT OR RECTIFYING THE MISTAKE THE EARLIER ORDER CAN NEVER BE RECALLED BY THE TRIBUNAL. THE EARLIER ORDER MUST HOLD THE FIELD AND THE MISTA KE CAN 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 WHOLE WITH A VIEW TO RECTIFY THE SAME ORDER UNDER SECTION 254(2) OF THE ACT. THE ACTION OF THE TRIBUNAL ACTUALLY MA 62 & 63 OF 10 RINL VSKP. 16 AMOUNTS TO REVIEW OF ITS EARLIER ORDER AND THAT POW ER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. 23. IN THE LIGHT OF RATIO LAID DOWN IN THE AFORESAI D JUDGEMENTS, WE HAVE CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL AND WE FIND THAT THE TRIBUNAL HAS GIVEN A SPECIFIC FINDING ON THE IMPUGNED ISSUE WHICH CANNOT BE RECTIFIED OR AMENDED UNDER THE GARB OF RECTIFICATION. WE THE REFORE, FIND NO MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEES AND WE DISMISS THE SAME. 24. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 27.4.2011 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 27 TH APRIL, 2011 COPY TO 1 M/S. RASHTRIYA ISPAT NIGAM LTD., CORPORATE ACCOUNTS SECTION, MAIN ADMINISTRATIVE BUILDING, VISAKHAPATNAM-530 031. 2 ACIT, CIRCLE - 3(1), VISAKHAPATNAM 3 THE CI T, VISAKHAPATNAM 4 THE CIT (A) , VISAKHAPATNAM 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM