Ravi Agrawal, Bareilly V. Asstt. Commissioner Of Income Tax Circle- II, Bareilly

MA 8/LKW/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1484 (ITAT-LUCKNOW)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-12-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 05-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: P K KAPOOR
• Keywords: Opportunity of being heard; Question of law; Reassessment proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER M.A. NO.08/LKW/2013 [ARISING OUT OF ITA NO. 633/LKW/2006] ASSESSMENT YEAR: 2003 - 04 RAVI AGARW AL PROP. SARNATH PETROLEUM 35 - B - 1, RAMPUR GARDEN BAREILLY V. ACIT CIRCLE II BAREILLY PAN: AAUPA4275H (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. P. K. KAPOOR, C.A. RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 23.12.2013 DATE OF PRONOU NCEMENT: 07.01.2014 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 25.7.2012 PASSED ON THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS IN ITA NO. 633/LKW/2006 WI TH THE SUBMISSION THAT WHILE DISPOSING OF THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS , THE TRIBUNAL HAS NOT APPRECIATED THE CORRECT FACTS AND VARIOUS JUDICIAL PRONOUNCEMENTS REFERRED DURING THE COURSE OF HEARING. 2 . DURING THE COURSE OF HEARING, THE L D. COUNSEL FOR THE APPLICANT - ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS TAKEN A SPECIFIC GROUND THAT NOTICE UNDER SECTION 143(2) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED IN SHORT 'THE ACT') HAS NOT AT ALL BEEN SERVED UPON THE ASSESSEE AND IN SUP PORT THEREOF THE COPIES OF THE PROCEEDINGS OF THE ASSESSING : - 2 - : OFFICER ARE PLACED ON RECORD. BESIDES, RELIANCE WAS PLACED UPON THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT , 229 ITR 383 AND VARIOUS JUDGMENTS OF DIFFERENT HIGH COURTS INCLUDING THAT OF THE JURISDICTIONAL HIGH COURT IN SUPPORT OF HIS CONTENTION THAT ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT IS MANDATORY FOR FRAMING ASSESSMENT UNDER SECTION 143(3) OF THE ACT AND IF THE NOTICE IS NOT SERVED , THE ASSESSMENT CAN BE HELD TO BE INVALID AND DESERVES TO BE ANNULLED. THE LD. COUNSEL FOR THE APPLICANT - ASSESSEE HAS FURTHER CONTENDED THAT THE TRIBUNAL HAS WRONGLY PLACED RELIANCE UPON THE PROVISIONS OF SECTION 292BB OF THE ACT AS THIS SECTION WAS BROUG HT ON THE STATUTE W.E.F. 1.4.2008 . T HEREFORE, IT CAN ONLY BE APPLIED TO THOSE CASES IN WHICH PROCEEDINGS ARE PENDING AS ON 1.4.2008, BUT IN THE INSTANT CASE THE ASSESSMENT ORDER WAS PASSED AS EARLY AS ON 28.11.2005. THEREFORE, THE APPLICATION OF THE PROV ISIONS OF SECTION 292BB OF THE ACT TO THE FACTS OF THE PRESENT CASE IS WRONG AND INCORRECT. THE LD. COUNSEL FOR THE APPLICANT - ASSESSEE HAS FURTHER CONTENDED THAT NON - APPRECIATION OF THE FACTS REFERRED DURING THE COURSE OF HEARING OF THE APPLICATION FOR AD MISSION OF ADDITIONAL GROUNDS IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS REFERRED DURING THE COURSE OF HEARING AMOUNTS TO AN ERROR APPARENT FROM THE ORDER OF THE TRIBUNAL, FOR WHICH RECTIFICATION IS CALLED FOR. 3 . THE LD. D.R., ON THE OTHER HAND, HAS CON TENDED THAT WHILE ADJUDICATING THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS, THE TRIBUNAL HAS EXAMINED ALL THE ASPECTS IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS REFERRED TO BY THE PARTIES AND CAME TO THE CONCLUSION THAT ON L Y THOSE ADDITIONAL G ROUND CAN BE ADMITTED WHICH ARE OF LEGAL IN NATURE AND CAN BE ADJUDICATED UPON WITHOUT MAKING ANY FURTHER ENQUIRY OR VERIFICATION. 4 . THE GROUND RELATING TO NON - SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT RAISED BY THE ASSESSEE BEFORE ANY OF T HE LOWER : - 3 - : AUTHORITIES, WHEREAS THE ASSESSING OFFICER HAS CATEGORICALLY MENTIONED IN THE ASSESSMENT ORDER THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED ON 13.10.2004 AND WAS SERVED UPON THE ASSESSEE ON 19.10.2004 AND IN RESPONSE THERETO SHRI. AMIT G UPTA, ACCOUNTANT OF THE ASSESSEE AND SHRI. MAJOJ MANGAL, FCA ATTENDED FROM TIME TO TIME AND FURNISHED EXPLANATIONS. THESE FACTS WERE TAKEN NOTE BY THE TRIBUNAL WHILE DISPOSING OF THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS . THROUGH THE ADDITIONAL GROUNDS , THE ASSESSEE HAS TRIED TO DISPUTE THE FINDINGS RECORDED BY THE ASSESSING OFFICER IN HIS ORDER WITHOUT FILING ANY AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS. THE LD. D.R. HAS FURTHER CONTENDED THAT THE TRIBUNAL HA S SIMPLY MADE A REFERENCE TO THE PROVISIONS OF SECTION 292BB OF THE ACT IN SUPPORT OF THE FINDING THAT CONSEQUENT TO THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT, THE LD. COUNSEL FOR THE ASSESSEE HAS APPEARED BEFORE THE ASSESSING OFFICER AND SUBMITTED DETAILED EXPLANATIONS. 5 . THE LD. D.R. FURTHER CONTENDED THAT THE TRIBUNAL HAS DECIDED THE APPLICATION OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL GROUNDS IN THE LIGHT OF THE JUDGMENTS OF THE HON'BLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD . VS. CIT (SUPRA) AND OTHER JUDGMENTS OF THE DIFFERENT HIGH COURTS BY HOLDING THAT ONLY THOSE ADDITIONAL GROUND CAN BE ADMITTED FOR WHICH NO ENQUIRY OR VERIFICATION IS CALLED FOR AND THEY CAN BE DISPOSED OF ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. BU T IN THE INSTANT CASE WHE RE THE ASSESSEE HAS DISPUTED THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT IN THE LIGHT OF THE FACT THAT THE ASSESSING OFFICER HAS RECORDED CATEGORICALLY IN THE ASSESSMENT ORDER THAT NOTICE UNDER SECTION 143(2) OF THE ACT W AS DULY SERVED UPON THE ASSESSEE , TH E ISSUE OF SERVICE OF NOTICE CANNOT BE ADJUDICATED WITHOUT MAKING NECESSARY VERIFICATION FROM THE RECORD. WHATEVER COPIES OF PROCEEDINGS FILED BY THE ASSESSEE ALONG WITH THE APPLICATION, THEY ALL RELATE FROM THE DATE 19 .11.2004 ONWARDS, WHEREAS THE : - 4 - : ASSESSING OFFICER HAS RECORDED THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT ON 19.10.2004. THEREFORE NO EVIDENCE WAS PLACED ON RECORD TO CONTROVERT THE FINDINGS WITH REGARD TO THE SERVICE OF NOTICE RECORDED BY THE AS SESSING OFFICER. THE LD. D.R. HAS FURTHER CONTENDED THAT SINCE THE TRIBUNAL HAS ADJUDICATED THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS AFTER TAKING INTO ACCOUNT ALL THE RELEVANT FACTS IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS, THERE IS NO E RROR APPARENT FROM THE ORDER OF THE TRIBUNAL, THEREFORE, NO RECTIFICATION IN THE ORDER IS CALLED FOR. 6 . HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE TRIBUNAL DATED 25.7.2012 VIS - - VIS THE MISCELLANEOUS APPLICATION, WE FI ND THAT THE TRIBUNAL HAS GIVEN A SPECIFIC FINDING KEEPING IN VIEW THE CONTENTIONS RAISED IN THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS AND THE FINDINGS RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. IN THE ASSESSMENT ORDER , THE ASSESS ING OFFICER HAS CATEGORICALLY RECORDED A FINDING WITH REGARD TO THE SERVICE OF NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT. THOUGH THE ASSESSEE HAS DISPUTED THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT, BUT IT WAS NOT SUPPORTED BY ANY AFFIDAVIT OR ANY OTHER CORROBORATIVE EVIDENCE . THERE IS A PRESUMPTION UNDER SECTION 114 OF THE INDIAN EVIDENCE ACT THAT THE RECORDINGS OF THE JUDICIAL AUTHORITIES IN THE ORDER ARE CORRECT UNLESS AND OTHERWISE CONTRARY IS PROVED. SINCE NO OTHER EVIDENCE WAS BROUGH T ON RECORD CONTRARY TO THE FINDINGS RECORDED BY THE ASSESSING OFFICER, THE FINDINGS RECORDED IN THE ASSESSMENT ORDER ARE CORRECT AND THE TRIBUNAL HAS TAKEN A COGNIZANCE THEREOF . WHILE ADJUDICATING THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS, THE TRIBUNAL HAS TAKEN INTO ACCOUNT THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (SUPRA) ; OTHER JUDGMENTS OF DIFFERENT HIGH COURTS AND THE DECISIONS OF THE CO - ORDINATE BENCHES OF THE TRIBUNAL . FOR THE SAKE OF R EFERENCE, WE EXTRACT THE FINDINGS OF THE TRIBUNAL AS UNDER: - : - 5 - : 5. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT UNDISPUTEDLY THE ASSESSEE HAS NOT OBJECTED THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT(A). THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER ON 31.3.2003 AND THIS APPEAL BEFORE THE TRIBUNAL WAS FILED ON 5.6.2006. THE APPLICATION FOR RAISING ADDITIONAL GROUNDS WAS MOVED BY THE ASSESSEE ON 6.10.2011 WITHOUT ASSIGNING ANY REASON AS TO WHY THE ASSESSEE COULD NOT RAISE ANY OBJECTION WITH REGARD TO SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT BEFORE THE LOWER AUTHORITIES. EVEN NO GROUND WAS RAISED IN THIS REGARD WHILE FILING THIS APPEAL BEFORE THE TRIBUNAL. 7 . THE SCOPE OF POWER OF THE TRIBUNAL WITH REGARD TO ADMISSION OF ADDITIONAL GROUND WAS EXAMINED BY THE APEX COURT IN VARIOUS JUDICIAL PRONOUNCEMENTS AND IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT (SUPRA), THEIR LORDSHIPS OF T HE APEX COURT HAVE HELD THAT THE TRIBUNAL HAS JURISDICTION TO EXAMINE THE QUESTION OF LAW WHICH ARISE FROM THE FACTS AS FOUND BY THE AUTHORITIES BELOW AND HAVING BEARING ON THE TAX LIABILITY OF THE ASSESSEE NOTWITHSTANDING THE FACT THAT THE SAME WAS NOT RA ISED BEFORE THE LOWER AUTHORITIES. THEIR LORDSHIPS FURTHER HELD THAT THE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. THE POWER OF THE TRIBUNAL DEALING WITH THE APPEAL IS THUS EXPRESSED IN THE WIDEST POSSIBLE TERMS. 8 . IN THE CASE OF JAI BHARAT CO - OPERATIVE HOUSING SOCIETY V. ITO (SUPRA) (IN WHICH ONE OF THE MEMBERS, SHRI. S. K. YADAV WAS PARTY TO THE ORDER), THE TRIBUNAL, RELYING UPON THE JUDGMENT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT (SUPRA), HELD THAT IF AN : - 6 - : ISSUE REQUIRES PROPER VERIFICATION OF FACTS AND THE RELEVANT FACTS ARE NOT AVAILABLE ON RECORD OR IN THE ASSESSMENT PROCEEDINGS, ADDITIONAL GROUND RAISED THEREON CANNOT BE ADMITTED. THE TRIBUNAL FURTH ER HELD THAT IF THE GROUND IS ADMITTED, IT HAS TO GO BACK TO THE ASSESSING OFFICER FOR VERIFICATION AND THE ORDER FOR DIRECTING THE ASSESSING OFFICER TO VERIFY THE FACTS AND ADJUDICATE THE CLAIM OF THE ASSESSEE WOULD AGAIN BE AGAINST THE SPIRIT OF THE JUDG MENT OF THE SUPREME COURT. 9 . IN THE INSTANT CASE, THE ASSESSING OFFICER HAS CATEGORICALLY OBSERVED IN HIS ORDER THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED ON 13.10.2004 AND WAS SERVED UPON THE ASSESSEE ON 19.10.2004 AND IN RESPONSE THERETO SHRI. AMIT GUPTA, ACCOUNTANT OF THE ASSESSEE AND SHRI. MAJOJ MANGAL, FCA ATTENDED FROM TIME TO TIME AND FURNISHED EXPLANATIONS AND DETAILS ON RECORD AND PRODUCED THE BOOKS OF ACCOUNT AND VOUCHERS. UNDER THE EVIDENCE ACT, PRESUMPTION UNDER THE LAW IS THAT WHATEV ER STATED IN THE ORDER OF JUDICIAL OR QUASI JUDICIAL AUTHORITIES, IT IS DEEMED TO BE BASED ON THE CORRECT FACTS UNLESS AND UNTIL CONTRARY IS PROVED. WHEN THE ASSESSING OFFICER HAS CATEGORICALLY OBSERVED IN HIS ORDER REGARDING SERVICE OF NOTICE UNDER SECTI ON 143(2) OF THE ACT, THE ONUS LIES UPON THE ASSESSEE TO DEMONSTRATE THAT NOTICE UNDER SECTION 143(2) OF THE ACT WAS NEVER SERVED UPON THE ASSESSEE. BUT THE ASSESSEE HAS NOT PLACED ANY EVIDENCE IN THIS REGARD EXCEPT FILING THIS APPLICATION THAT TOO WAS NO T SUPPORTED BY ANY AFFIDAVIT, DISPUTING THE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT. 10 . WE HAVE ALSO BEEN CARRIED THROUGH THE PROVISIONS OF SECTION 292BB OF THE ACT WITH THE SUBMISSION THAT ACCORDING TO THIS PROVISION IF THE ASSESSEE HAS APPEARED IN THE PROCEEDINGS AND : - 7 - : CO - OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WI TH THE PROVISIONS OF THIS ACT. THEREFORE, EVEN ON MERIT, THE ASSESSEE HAS NO CASE AS HE HAS ALREADY JOINED THE PROCEEDINGS AND COMPLIED WITH THE DIRECTIONS OF THE ASSESSING OFFICER. IN THIS REGARD, HON'BLE PUNJAB & HARYANA HIGH COURT HAVE CATEGORICALLY H ELD IN THE CASE OF CIT V. RAM NARAIN BANSAL (SUPRA) THAT WHERE THE ASSESSEE HAS PARTICIPATED IN RE - ASSESSMENT PROCEEDINGS UPTO HIS CONCLUSION WITHOUT RAISING ANY OBJECTION ABOUT THE ISSUE AND SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT, THE LD. CIT(A ) AND THE TRIBUNAL WERE NOT JUSTIFIED IN HOLDING THAT THE REASSESSMENT PROCEEDINGS ARE INVALID ON THAT SCORE. IN THAT CASE, THE ASSESSMENT WAS FRAMED ON 31.12.2007 UNDER SECTION 143(3)/148 OF THE ACT BEFORE INTRODUCTION OF THE PROVISIONS OF SECTION 292BB OF THE ACT. THEREFORE, THE PLEA OF THE ASSESSEE IS ALSO NOT MAINTAINABLE THAT THE PROVISION WAS INSERTED AFTER CONCLUSION OF THE ASSESSMENT IN THE IMPUGNED CASE. SINCE NOTHING HAS BEEN PLACED ON RECORD TO DEMONSTRATE THAT NOTICE UNDER SECTION 143(2) OF T HE ACT WAS NOT SERVED UPON THE ASSESSEE, WE FIND NO JUSTIFICATION IN ADMITTING THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE, WHICH REQUIRE VERIFICATION OF FACTS AND MORE SO THIS APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS WAS FILED AFTER FIVE YEARS FR OM THE DATE OF FILING OF THIS APPEAL BEFORE THE TRIBUNAL AND NO REASON WAS FURNISHED AS TO WHY THIS OBJECTION WAS NOT RAISED BEFORE THE LOWER AUTHORITIES. WE ARE, THEREFORE, OF THE VIEW THAT THESE ADDITIONAL GROUNDS CANNOT BE : - 8 - : ENTERTAINED UNDER THE LAW AT THIS BELATED STAGE. ACCORDINGLY, THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS IS DISMISSED. 6 . DURING THE COURSE OF HEARING OF THE MISCELLANEOUS APPLICATION, THE LD. COUNSEL FOR THE APPLICANT - ASSESSEE HAS PLACED RELIANCE UPON THE JUDGMENT S IN THE CA SE S OF LAXMI ELECTRONIC CORPORATION LTD. VS. CIT [1992] 188 ITR 398 (ALL.); INDRA PRASTHA CHEMICALS (P) LTD. & OTHERS VS. CIT & ANOTHER [2004] 271 ITR 113 (ALL.) AND CIT VS. QUALITY STEEL TUBES LTD. IN INCOME TAX REFERENCE NO.91 OF 1998. MOST OF THE JUDGM ENTS ARE PLACED IN SUPPORT OF THE CONTENTION THAT NOTICE UNDER SECTION 143(2) OF THE ACT IS REQUIRED TO BE SERVED UPON THE ASSESSEE. NONE OF THE JUDGMENTS RELATES ON THE POINT OF ADMISSION OF ADDITIONAL GROUND. RELIANCE ON THE JUDGMENT IN THE CASE OF LAX MI ELECTRONIC CORPORATION LTD. VS. CIT (SUPRA) WAS PLACED TO POINT OUT THE SCOPE OF POWER OF TRIBUNAL WHILE ADJUDICATING THE APPLICATION UNDER SECTION 254(2) OF THE ACT. 7 . THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT HAS BEEN REPEATEDLY EXAMINED BY T HE HON'BLE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT THE TRIBUNAL CAN RECTIFY ONLY THOSE MISTAKES WHICH ARE ARITHMETICAL OR CLERICAL OR APPARENT IN ITS ORDER. THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER IN THE GRAB OF RECTIFICAT ION. IT WAS ALSO HELD THAT IF THE TRIBUNAL COMMITS AN ERROR OF JUDGEMENT, THAT ERROR CANNOT BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT AS THE TRIBUNAL IS NOT EMPOWERED BY THE STATUTE TO REVIEW ITS OWN ORDER. IN THE CASE OF CIT VS. VAR DHMAN SPINNING; 226 ITR 296 THEIR LORDSHIPS OF THE PUNJAB AND HARYANA HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE APPELLATE TRIBUNAL IS CREATION OF STATUTES AND IT CAN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. THE ONLY POWER CONFE RRED 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 : - 9 - : BY THE AUTHORITIES UNDER THE ACT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOSED INHERENT RIGHTS. U/S 254(1) OF THE ACT, THE APPELLATE TRIBUNAL, AFTER HEARING THE 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 AN Y ORDER PASSED BY IT U/S 254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAKE 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 F OR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE, THEN IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD. 8 . IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD INDUSTRIES (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 REACHES FINALITY THE MOMENT THE SAME IS PASSED; CANNOT BE TOUCHED THEREAFTER. BY SE CTION 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 RECORDS. THE EXPRESSION `MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EITHER CLERICAL OR GRAMMATICAL OR ARITHME TICAL OR OF LIKE NATURE, WHICH 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 VS. GOLAL CHAND AGARWAL; 202 ITR 14 THEIR LORDSHIPS OF CALCUTTA HIGH COU RT 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 FROM THE RECORD EITHER SUO MOTO OR ON AN APPLICATION. IF IN ITS ORDER THERE IS NO MISTAKE WHICH IS PATENT AND OBVIOUS ON THE BASIS OF THE RECORD, THE EXERCISE OF THE JURISDICTION BY THE TRIBUNAL U/S 254(2) WILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF THE FACT CANNOT CONSTITUTE AN APPARENT : - 10 - : MISTAKE RECTIFIABLE UNDER SECTION 254(2). THIS MIGHT, AT THE WORST, LEAD TO PERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVAILABLE TO THE ASSESSEE IS NOT UNDER SECTION 254(2) BUT A REFERENCE 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 SUCH POWER BY THE STATUTE, NO AUTHORITY CAN EXERCISE THE POWER. 9 . 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 ORDERS IN ANY AP PEAL FILED BEFORE IT AS IT THINKS FIT. SUB - SECTION (2) OF SECTION 254 POSTULATES THAT THE TRIBUNAL MAY AMEND ANY ORDER PASSED BY IT UNDER SUB - SEC. (1) OF SECTION 254 WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. THE POWER OF THE TRIBUNA L CONFERRED BY SUB - SECTION (2) OF SECTION 254 FOR RECTIFYING 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 RECTIFY ING A MISTAKE 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 SECTION 254(2) OF THE ACT. THE PROVISI ONS 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 LORDSHIP HAVE HELD THAT SCOPE OF SECTION 254(2) OF THE INCOME - TAX ACT IS VERY LIMITED AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. 10 . 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 PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR : - 11 - : LORDSHIPS HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BE EN RECORDED WITHOUT PRODUCING HIM IN THE WITNESS BOX, THE AUTHORITIES SHOULD NOT ACT UPON THAT STATEMENT WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY TO CROSS - EXAMINE THE WITNESS, BUT THAT IS A MATTER NOT FOR RECTIFICATION BUT IT IS A MATTER RELATING TO T HE MERITS OF THE CASE AS TO WHETHER THE TRIBUNAL HAS GONE WRONG IN NOT 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 ASSESS EE. THIS IS NOT A MATTER IN WHICH THE APPARENT ERROR IS INVOLVED BUT IT IS A MATTER MORE OF MERIT AND CANNOT 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 OF CIT VS. HERO CYCLES PVT. LTD.; 228 ITR 463 IN WHICH THEIR LORDSHIPS HAVE 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 RECORD. RECTIFICATION IS N OT 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 THEIR LORDSHIPS OF PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATION 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 RECTIFYING A MISTAKE FROM RECORD. HOWEVER, SECTION 254(2) DOES NOT AUTHORIZE THE TRIBUNAL TO REVIE W 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 RECTIFY A MISTAKE APPARENT FROM RECORD, BUT IT WOULD BE AN ORDER PASSED ON REAPPRAISAL OF THE MATERIAL FACTS AND CIRC UMSTANCES AND ON A FRESH APPLICATION OF THE LEGAL POSITION WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT . 11 . IN THE CASE OF MS. DEEKSHA SURI VS. ITAT; 232 ITR 395 THEIR LORDSHIPS OF DELHI HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT T HE INCOME - : - 12 - : 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 JUDGEMENTS OR ORDERS. THE GROUNDS ON WHICH THE COURTS M AY OPEN OR VACATE THEIR JUDGEMENTS ARE GENERALLY MATTERS WHICH RENDER THE JUDGEMENT VOID OR WHICH ARE SPECIFIED IN THE STATUTES AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF SECTION 254(2) OF THE INCOME - TAX ACT, 1961 IS CLEAR. THE FOUNDATION FOR THE EXERCIS ING THE 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 PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTA BLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. 12 . SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY THE GUWAHATI HIGH COURT IN TH E 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 ANY ORDER PASSED BY IT AND TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSING OFFICER OR THE ASSESSEE. SO, WHEN WE SPEAK 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 MISTAKE CAN BE RECTIFIED OR AMENDED CAN BE MADE TO THE ORDER. THE TRIBUNAL CANNOT, 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 AMOUNTS TO REV IEW OF ITS EARLIER ORDER AND THAT POWER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. 13 . IN THE LIGHT OF THE AFORESAID JUDICIAL PRONOUNCEMENTS, WE ARE OF THE CONSIDERED VIEW THAT THE TRIBUNAL HAS ADJUDICATED THE APPLICATION FOR : - 13 - : ADMISSION OF ADDITIONAL GROUNDS IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS. SINCE NO ERROR APPARENT FROM THE ORDER OF THE TRIBUNAL HAS BEEN NOTICED , WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. ACCORDINGLY WE DISMISS THE SAME. 14 . IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7.1.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7.1.2014 JJ: 2612 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REG ISTRAR