M/s New Life Diagnostics, Cuttack V. ITO, Cuttack

MA 84/CTK/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4711 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 14-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S MANDAL
• Assessee Lawyers: J M PATNAIK
• Keywords: Charitable institution

Judgement Text

( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET , , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK () BEFOR E . . , HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. / AND . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . M.P. NO.84/CTK/2009 ( /ARISING OUT OF I.TA.NO .284/CTK/2009) / ASSESSMENT YEAR 2005-06 M/S. NEW LIFE DIAGNOSTICS, A/PO MANGALABAG CUTTACK ( / APPELLANT ) - - - VERSUS -. THE ITO 2(1) CUTTACK (/ RESPONDENT ) / FOR THE APPELLANT: / SHRI J.M.PATNAIK / FOR THE RESPONDENT : / SHRI A.S.MANDAL / ORDER . . , SHRI D.K.TYAGI, JUDICIAL MEMBER. BY THIS MISCELLANEOUS PETITION, THE ASSESSEE HAS REQUESTED TO RECALL/AMEND OUR ORDER DATED 31.8.2009 ON THE GROUND THAT IN THE SAID ORDER, SOME MISTAKES HAVE BEEN CREPT IN, WHICH REQUIRES RECTIFICATION. 2. IN THE MISCELLANEOUS PETITION, IT IS STATED THAT THE GROUNDS OF APPEAL RAISED IN THE MODIFIED GROUNDS ARE NOT CONSIDERED BY THE TRIBUNAL. IT IS ALSO STATED THAT IN ONE GROUND ALTHOUGH THE ISSUE IS COVERED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL, THE SAME HAS NOT BEEN ACCEDED TO AND THE MATTER HAS BEEN RESTORED BACK FOR FRESH CONSIDERATION. THEREFORE, THE ORDER OF THE TRIBUNAL IS REQUIRED TO BE RECTIFIED/MODIFIED. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND HAVE CAREFULLY PERUSED THE MISC. APPLICATION OF THE ASSESSEE AND ALSO THE ORDER OF THE TRIBUNAL. ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET ON A DETAILED PERUSAL OF THE ORDER OF THE TRIBUNAL VIS--VIS THE POINTS RAISED IN HE MISC. PETITION, WE FIND THE TRIBUNAL HAS CONSIDERED ALL ASPECTS RAISED BY THE ASSESSEE. THEREFORE, WE DO NOT FIND ANY INFIRMITY, MUCH LESS A PATENT ONE, OF FACT OR OF LAW, AS SOUGHT TO BE SHOWN BY THE ASSESSEE IN THE IMPUGNED ORDER. THE POINT RAISED IN THE MISC. APPLICATION VIRTUALLY SEEKS A REVIEW OF THE TRIBUNALS ORDER. IF A CONCLUSION IS TO BE REACHED AFTER A LONG DRAWN PROCESS OF REASONING IN REGARD TO A PARTICULAR FACT THEN IT CANNOT BE A SUBJECT MATTER OF PROCEEDINGS U/S. 254(2). IT IS WELL SETTLED LAW THAT THERE IS NO POWER OF REVIEW BESTOWED UPON THE TRIBUNAL. THE TRIBUNAL BEING A STATUTORY AUTHORITY UNLESS CONFERRED WITH THE POWER OF REVIEW CANNOT REVIEW ITS ORDER. THE HONBLE CALUTTA HIGH COURT IN THE CASE OF GOKUL CHANDRA AGARWAL, 202 ITR 14(CAL) HELD THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254(2). IN THE CASE OF JAIN DHARAMSHALA CHARITABLE TRUST V. CIT, 121 CTR (DEL) 86, IT WAS HELD THAT IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE ALLOWED TO BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF SECTION 254(2). UNLESS THERE ARE MANIFEST ERRORS, WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REWRITE THE ORDER. U/S. 254(2) ONLY SUCH MISTAKES ARE RECTIFIABLE FOR 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 BASIS OF THE RECORD. 4. THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC AND TRADING CO., 203 ITR 497 (BOM) HELD THAT UNDER SECTION 254(2) OF THE I.T.ACT, 1961, THE APPELLATE TRIBUNAL MAY WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE CORD AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (2) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT ON RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET POWER OF RECTIFICATION UNDER SECTION 254 (2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT FROM THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. 5. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KARAM CHAND THAPPER AND BROS. P.LTD., 176 ITR 535 (SC) HELD THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IT IS WELL SETTLED LAW THAT WHAT CAN BE RECTIFIED U/S. 254 (2) IS A MISTAKE WHICH IS APPARENT AND PATENT FROM RECORDS. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REVIEW THE ORDER. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASON OR ENQUIRY IS NECESSARY. THE POWERS SO CONFERRED U/S. 254 (2) DO NOT CONTEMPLATE REHEARING WHICH WOULD HAVE THE EFFECT OF REWRITING AN ORDER AFFECTING THE MERITS OF THE CASE. 6. IN VIEW OF THE AFORESAID FACTS AND DISCUSSION, WE DO NOT FIND ANY MERIT IN THE MISC. APPLICATION SUBMITTED BY THE ASSESSEE AND THE SAME IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 23.7.2010 SD/- SD/- (. . ), , (K.K.GUPTA), ACCOUNTANT MEMBER. (. . ), (D.K.TYAGI), JUDICIAL MEMBER () DATE:23.7.2010 ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET PARIDA - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : 2 / THE RESPONDENT: 3. /THE CIT, 4. ()/ THE CIT(A), 5. / DR, CUTTACK BENCH 6. GUARD FILE. / TRUE COPY , / BY ORDER , [ ] SENIOR PRIVATE SECRETARY