Atsa Educationals Pvt. Ltd., Kanpur V. Jt. CIT, Kanpur

MA 9/LKW/2010

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2107 (ITAT-LUCKNOW)
• Duration Of Justice: 4 year(s) 3 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-05-2014
• Assessment Year: 1996-1997
• Appeal Filed On: 12-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: S K GARG; P K KAPOOR
• Section: 133(6); 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER M.A. NO.09/LKW/2010 [IN C.O. NO. 83/LUC/2005 ARISING OUT OF ITA NO.336/LUC/2000] ASSESSMENT YEAR: 1996 - 97 ATSA EDUCATIONALS PVT. LTD. 8/104, ARYA NAGAR KANPUR V. JT. CIT SPECIAL RANGE KANPUR PAN: AABCA5884E (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. S. K. GARG, ADVOCATE & SHRI. P. K. KAPOOR, C.A. RESPONDENT BY: SHRI. ALOK MITRA, D.R. D ATE OF HEARING: 23 0 5 2014 DATE OF PRONOUNCEMENT: 13 0 6 2014 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEHALF OF THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 19.5.2006 I N C.O. NO. 83/LUC/2005 ARISING OUT OF ITA NO.336/LUC/2000 , WITH THE SUBMISSION THAT WHILE ADJUDICATING THE ISSUE OF ADDITION OF RS.4,09,050/ - CONFIRMED BY THE LD. CIT(A), THE TRIBUNAL HAS NOT PROPERLY EXAMINED THE WRITTEN SUBMISSIONS AND OTHER DOCUMENTS PLACED ON RECORD DURING THE COURSE OF HEARING OF THE APPEAL. THEREFORE, AN ERROR IS CREPT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION IN THE ORDER OF THE TRIBUNAL EITHER BY MODIFYING OR BY RECALLING THE ORDER OF THE TRIBUNAL. 2 . THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONT ENDED THAT THE ASSESSEE HAS FURNISHED PROPER EXPLANATIONS WITH REGARD TO THE PAYMENT OF PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : FEES ALLEGEDLY MADE BY 42 PERSONS TO THE ASSESSEE, BUT THE TRIBUNAL HAS NOT PROPERLY APPRECIATED THE EVIDENCE PLACED ON RECORD. IT WAS ALSO CONTENDED THAT VARIOUS DOCU MENTS APPEARING AT PAGES 88 & 89; 92 TO 94 AND 109 TO 120 RELEVANT TO THE CONTROVERSY INVOLVED IN THE APPEAL WERE NOT TAKEN INTO ACCOUNT BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL. THEREFORE , OMISSION TO CONSIDER THE PLEA/MATERIAL WHICH HAS A DIRECT BE ARING ON THE ISSUE INVOLVED , CONSTITUTES A MISTAKE APPARENT FROM RECORD AND REQUIRES RECTIFICATION UNDER SECTION 254(2) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME - TAX VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC) AND OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. NIRAJAN K. ZAVERI [2009] 20 DTR 153 (GUJ). 3 . THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT WHI LE ADJUDICATING THE ISSUE, THE T RIBUNAL HAS EXAMINED THE WRITTEN SUBMISSIONS AND OTHER RELEVANT MATERIAL PLACED ON RECORD AS IS EVIDENT FROM PARAS 7 AND 8 OF THE ORDER OF TH E TRIBUNAL DATED 19.5.2006. THE LD. D.R. HAS FURTHER MADE A REFERENCE TO RULE 18(6 ) OF THE ITAT RULES, 1963, ACCORDING TO WHICH ONLY THOSE DOCUMENTS THAT ARE REFERRED TO AND RELIED UPON BY THE PARTIES DURING THE COURSE OF ARGUMENTS SHALL ALONE BE TREATED AS PART OF THE RECORD OF THE TRIBUNAL. THEREFORE, W HATEVER HAS BEEN REFERRED BY THE PARTIES DURING THE COURSE OF HEARING OF THE APPEAL, THE SAME WERE TAKEN INTO ACCOUNT BY THE TRIBUNAL WHILE ADJUDICATING THE IMPUGNED ISSUE. IF THE ASSESSEE HAS FILED VOLU MINOUS PAPER BOOK AND DO NOT MAKE REFERENCE TO THE DOCUMENTS CONTAINED THEREIN, HE CANNOT CLAIM THAT THE PAPER BOOK WAS NOT PROPERLY CONSIDERED BY THE TRIBUNAL WHILE ADJUDICATING THE ISSUE. THE REASON IS QUITE OBVIOUS AS IT CANNOT BE EXPECTED FROM THE TRI BUNAL TO GO THROUGH THE ENTIRE VOLUMINOUS PAPER BOOK FILED BY THE ASSESSEE. IT IS THE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : DUTY OF THE ASSESSEE TO MAKE R EFERENCE TO THE PARTICULAR PAGES OF THE PAPER BOOK , WHICH ARE RELEVANT TO THE CONTROVERSY INVOLVED IN THE APPEAL. SINCE THE TRIBUNAL HAS A DJUDICATED THE ISSUE AFTER TAKING INTO ACCOUNT THE RELEVANT DOCUMENTS WHICH ARE REFERRED DURING THE COURSE OF HEARING, THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. MOREOVER, UNDER THE GARB OF RECTIFICATION, THE ORDER OF THE TRIBUNAL CANNOT BE REVIEWED. THE LD. D.R. HAS FURTHER CONTENDED THAT IN THE LIGHT OF THESE FACTS, THE MISCELLANEOUS APPLICATION DESERVES TO BE DISMISSED. 4 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE TRIBUNAL VIS - - VIS THE MISCELLANEOUS APPLICATION, WE FIND THAT THE TRIBUNAL HAS EXAMINED AND TAKEN INTO ACCOUNT ALL THE RELEVANT DOCUMENTS AND WRITTEN SUBMISSIONS WHICH HAVE BEEN REFERRED DURING THE COURSE OF HEARING OF THE APPEAL. THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING IN PARA 7 OF ITS ORDER THAT FEE RECEIVED BY THE ASSESSEE FROM 42 PERSONS HAD NOT BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNT. IT WAS ALSO CATEGORICALLY OBSERVED BY THE TRIBUNAL THAT THE L D. CIT(A) HAS ALSO AFFORDED ADEQUATE OPPORTUNITY TO THE ASSESSEE TO CROSS - EXAMINE THE PERSON WHO HAD CONFIRMED THAT THEY HAD PAID FEE TO THE ASSESSEE - COMPANY AND NO RECEIPTS HAD BEEN ISSUED BY THE ASSESSEE TO THEM. THE RELEVANT OBSERVATIONS OF THE TRIBUNA L IN PARA 7 OF ITS ORDER ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: - 7. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AND THE SUBMISSIONS OF THE LEARNED AUTHORIZED REPRESENTATIVES OF THE PARTIES. WE HAVE ALSO GONE THROUGH THE P APER BOOKS WHICH CONTAINED THE DETAILS OF THE STUDENTS WHO PAID FEE, LIST OF STUDENTS FROM WHOM NO FEE WAS CHARGED AND HAVE ALSO GONE THROUGH THE COPIES OF LETTERS WHICH ARE ENCLOSED IN THE PAPER BOOK. WE OBSERVE THAT THE ASSESSEE HAS NOT BEEN ABLE TO BRIN G ANY EVIDENCE ON RECORD TO CONTROVERT THE REPLY RECEIVED FROM 44 PERSONS, THE DETAILS OF WHICH ARE GIVEN BY THE AO AT PAGES 2 TO 4 OF THE PAPER BOOK, WHO HAVE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : CONFIRMED OF PAYMENT OF FEE TO THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT THERE IS NO EN TRY IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE IN RESPECT OF THOSE STUDENTS OF RECEIPT OF FEE. HOWEVER, THE ASSESSEE HAD FURNISHED THE RECEIPTS AND ALSO PROVED BEFORE THE ID. CIT(A) THAT FEE OF RS.28,000/ - RECEIVED FROM TWO STUDENTS SHRI. DHEERAJ M ALHOTRA AND SHRI KAPIL KHEMKA HAD BEEN ACCOUNTED FOR. THE COPIES OF THE RECEIPTS FROM THOSE STUDENT ARE ALSO PLACED AT PAGES 3 TO 12 OF THE SECOND PAPER BOOK (UNBOUND PAPER BOOK). WE OBSERVE THAT THE ID. CIT(A) HAS CONSIDERED THE AMOUNT OF RS.28,000/ - AND DEDUCTED THE SAME WHILE SUSTAINING THE ADDITION OF RS.4,09,050/ - IN RESPECT OF 42 PERSONS AND THAT THE FEE FROM THOSE 42 PERSONS RECEIVED BY THE ASSESSEE HAD NOT BEEN ACCOUNTED FOR. CONSIDERING THE MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT TH E ID. CIT(A) HAS RIGHTLY HELD THAT THE FEE OF 42 PERSONS AGGREGATING TO RS.4,09,050/ - HAS NOT BEEN ENTERED IN THE BOOKS OF ACCOUNT AND NO RECEIPTS HAD BEEN ISSUED BY THE ASSESSEE COMPANY TO THOSE 42 PERSONS. WE OBSERVE THAT THE LD. CIT(A) HAS GIVEN ADEQUA TE OPPORTUNITY TO THE ASSESSEE, THE DETAILS OF WHICH ARE MENTIONED IN PARA 2.7 OF THE IMPUGNED ORDER, TO CROSS EXAMINE THE PERSONS WHO HAD CONFIRMED THAT THEY HAD PAID FEE TO THE ASSESSEE COMPANY AND NO RECEIPTS HAD BEEN ISSUED BY THE ASSESSEE TO THEM. WE ALSO OBSERVE THAT THE ID. CIT(A) HAS ALSO SHOWN THE COPIES OF THE LETTERS RECEIVED BY THE AO FROM 64 PERSONS WHO HAD REPLIED TO THE NOTICES ISSUED BY THE AO U/S 133(6) OF THE ACT. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE ID. CIT(A) IN SU STAINING THE ADDITION OF RS.4,09,050/ - OUT OF THE ADDITION OF RS.8,84,037/ - MADE BY THE AO. 5 . FROM A BARE READING OF PARA 7 OF THE ORDER OF THE TRIBUNAL DATED 19.5.2006, IT IS ABUNDANTLY CLEAR THAT WHILE ADJUDICATING THE IMPUGNED ISSUE OF ADDITION OF RS.4, 09,050/ - , THE TRIBUNAL HAS EXAMINED THE PAPER BOOK CONTAIN ING DETAILS OF STUDENTS WHO PAID FEE, LIST OF STUDENTS FROM WHOM NO FEE WAS CHARGED AND OTHER RELEVANT LETTERS. HAVING TAKEN INTO ACCOUNT ALL THE RELEVANT DOCUMENTS, THE TRIBUNAL HAS GIVEN A CATEGO RICAL FINDING WITH REGARD TO THE RECEIPT OF FEE FROM 42 PERSONS , WHICH WAS NOT ACCOUNTED FOR IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THEREFORE, THE FINDINGS OF THE TRIBUNAL IN THIS REGARD CANNOT BE REVIEWED UNDER THE GARB OF RECTIFICATION UNDER SECTION 2 54(2) OF THE ACT. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : 6 . SO FAR AS CONSIDERATION OF DOCUMENTS COMPILED IN THE FORM OF PAPER BOOK IS CONCERNED, SUB - RULE (6) OF RULE 18 OF THE ITAT RULES IS ABUNDANTLY CLEAR THAT ONLY THOSE DOCUMENTS SHALL BE TREATED AS PART OF RECORD OF THE TRIBUNAL WHICH WERE RE FERRED TO AND RELIED UPON BY THE PARTIES DURING THE COURSE OF ARGUMENTS. IT IS GENERALLY NOTICED THAT DURING THE COURSE OF HEARING, THE ASSESSEE USED TO FILE VOLUMINOUS PAPER BOOK, BUT THEY ONLY REFER FEW DOCUMENTS. IN THAT SITUATION, THE DOCUMENTS REFER RED AND RELIED UPON BY THE PARTIES CAN ONLY BE TREATED TO BE RECORD OF THE TRIBUNAL. THE ORDER OF THE TRIBUNAL CANNOT BE RECALLED OR REVIEWED ON THE GROUND THAT THE DOCUMENTS THOUGH COMPILED IN THE FORM OF PAPER BOOK, BUT WAS NOT REFERRED OR RELIED BY THE PARTIES DURING THE COURSE OF ARGUMENT, WERE NOT TAKEN INTO ACCOUNT BY THE TRIBUNAL, IN THE LIGHT OF RULE 18(6) OF ITAT RULES. BUT IN THE INSTANT CASE IT IS ABUNDANTLY CLEAR FROM THE ORDER OF THE TRIBUNAL THAT WHILE ADJUDICATING THE ISSUE , THE TRIBUNAL HA S TAKEN INTO ACCOUNT ALL THE RELEVANT DOCUMENTS REFERRED AND RELIED UPON ON BEHALF OF THE ASSESSEE. 7 . THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT HAS BEEN REPEATEDLY EXAMINED BY THE HON'BLE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT T HE 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 RECTIFICATION. IT WAS ALSO HELD THAT IF THE TRIBUNAL COMMITS AN ERROR OF JUDG EMENT, 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. 8 . IN THE CASE OF CIT VS. VARDHMAN SPINNING; 226 ITR 296 THEIR LORDSHIPS OF THE PUNJAB AND HARYA NA 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 CONFERRED ON THE TRIBUNAL U/S 254(2) OF THE I.T. ACT, 1961 IS TO RECTIFY ANY PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 6 - : MISTAKE APPARENT FROM RECORD. THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED 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 CO NTESTING 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 A NY 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 FOR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. WHERE TWO O PINIONS ARE POSSIBLE, THEN IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD. 9 . 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 H OLDING 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 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 RECORDS. THE EXPRESSION `MISTAKE APPARENT ON THE RECORD MEANS A MISTAKE EITHER CLERICAL OR GRAMMATICAL OR ARITHMETICAL 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 COURT HAVE ALSO HELD THAT SECTION 254(2) OF THE INCOME - TAX ACT, 1961 E MPOWERS 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 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 7 - : ILLEGAL 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 AVAILAB LE 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. 10 . 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 APPEAL 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 TRIBUNAL CONFERRED BY SUB - SECTION (2) OF SECTION 254 FOR RECTIFYING ANY MI STAKE 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 QUI TE 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 PROVISIONS 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. 11 . 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 ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THER E MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 8 - : DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR LORDSHIPS HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING HIM IN THE WITNESS BOX, THE AUTHORITI ES 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 THE 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 ASSESSEE. THIS IS NOT A MATTER IN WHICH THE APPARENT ERROR IS INVOLVED B UT 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 THE IR 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 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 THEIR LORDSHIPS OF PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATION AFTER HOLDING THAT SECTION 254(2) OF THE ACT E MPOWERS 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 REVIEW ITS ORDER OR TO SIT IN APPEAL OVER ITS EARLIER ORDER. IF IT IS D ONE, 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 CIRCUMSTANCES AND ON A FRESH APPLICATION OF THE LEGAL POSITION WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 9 - : 12 . IN THE CASE OF MS. DEEKSHA SURI VS. ITAT; 232 ITR 395 THEIR LORDSHIPS OF 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 JUDGEMENTS OR ORDERS. THE GROUNDS ON WHICH THE COURTS MAY OPEN OR VACATE THEIR JUDGEMENTS ARE GENERALLY MATTERS WHICH REND ER 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 EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPAREN T 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 ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THE RE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. 13 . SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY THE 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 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 T HE 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 CANNO T, 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 REVIEW OF ITS EARLIER ORDER AND THAT POWER TO REVIEW IS NOT AVAILABLE TO THE TRIBUNAL. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 10 - : 14 . 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. 15 . IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. OR DER PRONOUNCED IN THE OPEN COURT ON 13.6.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH JUNE , 2014 JJ: 1006 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )