The Dy. Commissioner of Income Tax, Bathinda v. Sh Inderjit Mehta, Bathinda

MA 27/ASR/2017 | 2007-2008
Pronouncement Date: 30-11-2017 | Result: Dismissed

Appeal Details

RSA Number 2720924 RSA 2017
Assessee PAN ABQPM6434M
Bench Amritsar
Appeal Number MA 27/ASR/2017
Duration Of Justice 1 year(s) 29 day(s)
Appellant The Dy. Commissioner of Income Tax, Bathinda
Respondent Sh Inderjit Mehta, Bathinda
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 30-11-2017
Assessment Year 2007-2008
Appeal Filed On 31-10-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T. S. KAPOOR ACCOUNTANT MEM BER AND SH.N. K. CHOUDHRY JUDICIAL MEMBER M. A. NO. 27/(ASR)/2017 (ARISING OUT OF I.T.A. NO. 405/(ASR)/2013) ASSESSMENT YEAR: 2007-08 PAN: ABQPM6434M A. C. I. T. CIRCLE- 1 BATHINDA. VS. SH. INDERJIT MEHTA PROP. M/S. MEHTAS MEGA MART G-1817 BIRLA MILL COLONY BADHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (D.R. ) RESPONDENT BY: SH. ASHWANI KALIA (C.A .) DATE OF HEARING: 08.09.2017 DATE OF PRONOU NCEMENT: 30.11.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY RE VENUE AGAINST THE ORDER OF THE HON'BLE TRIBUNAL DATED 18.05.2016. 2. IN THE MISCELLANEOUS APPLICATION THE REVENUE H AD SUBMITTED THAT ASSESSEE HAD SURRENDERED AN AMOUNT OF RS.47 LACS DU RING SURVEY U/S 133A AND SAME WAS ASSESSED BY ASSESSING OFFICER AS DEEMED INCOME AND WHICH WAS ALSO UPHELD LD. CIT(A). HOWEVER THE HON'BLE ITAT HAD DELETED THE ADDITION AMOUNTING TO RS.42 LACS RELYIN G ON THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KIM PHARMA LTD. 3. THE LD. DR SUBMITTED THAT THE INCOME WAS RIGHTLY ASSESSED AS DEEMED INCOME ON THE BASIS OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF FAQIR MOHAMMED HAJI VS. CIT 247 ITR 290. THE LD. D R SUBMITTED THAT THE HON'BLE TRIBUNAL HAD DELETED THE ADDITION BY HO LDING THAT THE MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 2 SURRENDERED INCOME WAS FROM BUSINESS INCOME WHEREAS THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PR. CIT VS. M/S KHUSHI RAM & SONS FOODS (P) LTD. IN ITA NO. 126 OF 2015 AND O RDER DATED 21.07.2016 HAD HELD THAT MERELY BECAUSE AN ASSESSEE CARRIES ON CERTAIN BUSINESS IT DOES NOT NECESSARILY FOLLOW THAT THE A MOUNTS SURRENDERED BY HIM WERE ON ACCOUNT OF ITS BUSINESS TRANSACTIONS AN D HON'BLE COURT HAD HELD THAT IT IS FOR THE ASSESSEES TO ESTABLISH THE SOURCE OF SUCH SURRENDERED INCOME AND SINCE THE JUDGMENT OF HON'BL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S KHUSHI RAM & SONS FOODS (P) LTD. HAS BEEN DELIVERED AFTER THE JUDGMENT OF HON' BLE TRIBUNAL WHICH IS VARIANCE WITH THAT OF THE ORDER OF HON'BLE COURT T HEREFORE A MISTAKE HAS CREPT IN THE ORDER OF HON'BLE TRIBUNAL WHICH NEEDS TO BE RECTIFIED. 4. THE LD. AR ON THE OTHER HAND SUBMITTED THAT THE HON'BLE BENCH HAD GIVEN ITS DECISION RELYING UPON THE DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF KIM PHARMA LTD. VS. CIT 250 CTR 454 WHEREIN IT HAS BEEN HELD THAT CASH AMOUNT SURRENDER ED AS INCOME IS TO BE ASSESSED AS DEEMED INCOME AND THE OTHER SURRENDE RED AMOUNT OF ON ACCOUNT OF SUNDRY CREDITS REPAIRS TO BUILDING AND ADVANCES TO STAFF WAS ALLOWED TO BE TREATED AS BUSINESS INCOME BEING RELA TABLE TO BUSINESS AND THEREFORE THE HON'BLE TRIBUNAL HAD RIGHTLY ALLOWED APPEAL OF THE ASSESSEE FOR AMOUNT OF RS. 42 LACS WHICH RELATED TO THE EXCE SS STOCK SURRENDERED AND UNEXPLAINED TRANSACTION RECORDED IN THE BOOKS O F ACCOUNT. THE LD. AR SUBMITTED THAT THE SURRENDER MADE ON ACCOUNT OF EXCESS STOCK AND UNEXPLAINED TRANSACTIONS ITSELF MEANS THAT ASSESSEE HAD EARNED THESE MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 3 INCOMES FROM THE BUSINESS AND THESE SURRENDERED AMO UNTS WERE RELATING TO THE BUSINESS. IN THIS RESPECT THE LD. AR INVITED OUR ATTENTION TO THE FINDINGS OF HON'BLE TRIBUNAL AS CONTAINED IN PARA 1 2 TO 19. FROM THE ABOVE FINDINGS RECORDED BY HON'BLE TRIBUN AL THE LD. AR SUBMITTED THAT IT BECOMES APPARENT THAT ASSESSEE HA D SURRENDERED THE AMOUNT DUE TO DISCREPANCIES IN STICK WHICH DEFINITE LY IS FROM BUSINESS AND THEREFORE THE CASE LAW RELIED ON BY LD. DR IS N OT APPLICABLE. THE LD. AR SUBMITTED THAT THE POWERS OF THE HON'BLE TRIBUNA L U/S 254(2) ARE RESTRICTED TO RECTIFY ANY MISTAKE APPARENT FROM REC ORD. APPARENT MEANS VISIBLE CAPABLE OF BEING SEEN OBVIOUS AND PATENT AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENTS OR ELABORATION AND IN TH IS RESPECT WAS PLACED ON THE FOLLOWING CASE LAWS: (1) CIT V ITAT (1992) 196 ITR 590 (ORI) (2) CIT V ITAT (1993) 206 ITR 126 (AP) (3) CIT V PRAHLAD RAI TODI (2001) 251 ITR 833 (GAU) (4) CIT V ANAMIKA BUILDERS PVT LTD (2001) 251 ITR 585 (CAL) (5) BALJEET JOLLY V CIT (2001) 250 ITR 113(DEL) (6) TRANSWORLD INTERNATIONAL INC. V JCIT 192 CTR (DEL) 97 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT HON'BLE TRI BUNAL HAS PASSED THE ORDER DATED 18.05.2016 AFTER RECORDING ITS DETAILED FINDINGS FROM PARA 12 TO 19 AND WHEREIN IT HAS HELD THAT THE ASSESSEE HAD EARNED INCOME FROM BUSINESS. FOR THE SAKE OF COMPLETENESS THE FINDING S OF THE HON'BLE TRIBUNAL AS CONTAINED IN PARA 12 TO 19 ARE REPRODUC ED BELOW: 12. THE STAND OF THE ASSESSEE TO THE EFFECT THAT KIM PHARMA LTD. (SUPRA) IS PER INCURIAM TWO DECISIONS OF THE OF TH E HONBLE GUJARAT HIGH .COURT WHEREIN FAQIR MOHD. HAJI HASSAN (SUPRA) HAS BEEN OVER-RULED MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 4 IS NOT UNMD TO CARRY ANY FORCE WHATSOEVER. IN OUR C ONSIDERED OPINION THIS ARGUMENT MIGHT BE AVAILABLE TO THE ASSESSEE IN APPR OPRIATE PROCEEDINGS BEFORE THE HON'BLE HIGH COURT OR BEFORE THE HON'BL E SUPREME COURT. HOWEVER THE ARGUMENTS OF THE ASSESSEE THEMSELVES H OW THAT KIM PHARMA LTD. (SUPRA) HAS NOT BEEN HITHERTO HELD TO BE PER INCURIAM IN ANY PROCEEDING. MOREOVER AS AN INFERIOR TRIBUNAL WE A RE BOUND BY THE ORDERS OF THE HONBLE JURISDICTIONAL HIGH COURT. THE ORDER S OF THE HONBLE JURISDICTIONAL HIGH COURT ARE BINDING ON US. THEIR LORDSHIPS IN KIM PHARMA LTD. (SUPRA) HAVE HELD UNEXPLAINED MONEY R ECOVERED IN SURRENDER TO BE ASSESSABLE AS DEEMED INCOME U/S 69A AND NOT A S BUSINESS INCOME. THE RATIO IS DOWN-RIGHT BINDING ON US. THIS ARGUMEN T OF THE ASSESSEE IS ACCORDINGLY REJECTED. IGM PHARMA (SUPRA) IS DIRE CTLY APPLICABLE TO THE AMOUNT OF RS.5 LAKHS SURRENDERED ON ACCOUNT OF EXCE SS CASH FOUND IN THE BOOKS. THEREFORE THE ADDITION OF RS. 5 LAKHS SURRE NDERED ON ACCOUNT OF EXCESS CASH FOUND PHYSICALLY AS AGAINST THAT RECORD ED IN THE BOOKS OF ACCOUNT IS CONFIRMED. HOWEVER SO FAR AS REGARDS TH E OTHER TWO ADDITIONS OF RS.32 LAKHS ON ACCOUNT OF EXCESS STOCK FOUND IN THE BOOKS OF ACCOUNT AND RS. 10 LAKHS ON ACCOUNT OF UNEXPLAINED ENTRIES NOT RECORDED IN THE BOOKS OF ACCOUNT ARE DELETED.TO QUOTE FROM KIM PHA RMA (SUPRA) ITSELF SUCH AMOUNTS HAVE BEEN HELD TO BE ASSESSABLE AS BUSINESS INCOME: IN THE FACTS OF THE PRESENT CASE WE FIND THAT ASS ESSEE DURING THE COURSE OF SURVEY HAD SURRENDERED THE INCOME AS INCOME FROM OTHER SOURCES THOUGH A PLEA HAS BEEN RAISED BY THE ASSESSEE THAT THE INCOME WAS SURRENDERED AS INCOME FROM JOB WORK BUT NO EVIDENCE TO PROVE THE STAND OF THE ASSESSEE HAS BEEN BROUGHT ON RECORD. THE ASSESS EE HAD ALSO SURRENDERED ADDITIONAL INCOME OF RS.10 LACS IN ASSE SSMENT YEAR 2005-06 ON ACCOUNT OF SUNDRY CREDITS REPAIRS TO BUILDING A ND ADVANCES TO STAFF WHICH BEING RELATABLE TO BUSINESS CARRIED ON BY ASS ESSEE WAS INCLUDED AS INCOME FROM BUSINESS. HOWEVER IN RESPECT OF CASH F OUND DURING SURVEY WHICH WAS NOT REFLECTED IN THE BOOKS OF ACCOUNT NO SOURCE WAS DECLARED BY THE ASSESSEE AND IN THE ABSENCE OF NATURE OF SOU RCE OF CASH BEING PROVED; THE SAME IS NOT ASSESSABLE AS INCOME FROM B USINESS. IN THE CIRCUMSTANCES WE HOLD THE ORDER OF THE CIT(A) IN I NCLUDING THE ADDITIONAL INCOME AS DEEMED INCOME U/S 69A OF THE ACT AND NOT ALLOWING THE BENEFIT OF THE BUSINESS LOSSES DETERMINED AGAINST THE SAID DEEMED INCOME. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE DISMIS SED. 12.1 FROM THE ABOVE FINDING IT IS APPARENT THAT TH E SURRENDER MADE ON ACCOUNT OF SUNDRY CREDITS REPAIRS TO BUILDING AND ADVANCES TO STAFF HAVE BEEN HELD TO BE RELATABLE TO BUSINESS WHEREAS ONLY IN RESPECT OF CASH IT WAS HELD TO BE NOT RELATABLE TO BUSINESS. THEREFORE THE SURRENDER ON ACCOUNT OF STOCK AND UNEXPLAINED INVESTMENT RELATED TO BUSINESS WHEREAS THE CASH IS NOT ASSESSABLE AS INCOME FROM BUSINESS. 13. ACCORDINGLY RELIANCE ON FAQIR MOHD. HAJI HASS AN (SUPRA) BY THE TAXING AUTHORITIES ALSO CANNOT BE SAID TO BE INCORR ECT. THEREFORE THE GRIEVANCE OF THE ASSESSEE BY WAY OF GROUND NOS. 1 T O 4 IS PARTLY REJECTED. 14. AS REGARDS GROUND NO.5 THE AO MADE AN ADDITION OF RS. 1 16 184/- ON ACCOUNT OF LOW G.P. RATE. THE ID. CIT (A) CONFIRMED THE ADDITION MADE BY THE AO. MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 5 14. THE ID. COUNSEL FOR THE ASSESSEE CONTENDED THAT SINCE THE AMOUNT IN THIS ADDITION WAS A PART OF THE SURRENDERED INCOME OF RS.47 00 000/- NO SUCH ADDITION WAS CALLED FOR. 15. ON THE OTHER HAND THE ID. DR HAS AGAIN PLACED RELIANCE ON THE IMPUGNED ORDER. 16. WHILE CONFIRMING THE ADDITION THE ID. CIT(A) H AS OBSERVED THAT THE ASSESSEE COULD NOT FURNISH INVENTORY OF OPENING STO CK AND CLOSING STOCK AND THUS THE BOOK RESULTS SHOWN WERE NOT SUBJECT T O VERIFICATION DUE TO WHICH FOR POSSIBLE LEAKAGE OF PROFITS A REASONABL E AND FAIR ADDITION WAS REQUIRED TO BE MADE. 17. THE ASSESSEE MAINTAINS THAT THE SURRENDERED AMO UNT COVERED ALL THE DISCREPANCIES AND THAT FOR THE A.Y. 2005-06 TH E G.P. RATE OF 16.34% WAS ACCEPTED BY THE TRIBUNAL. 18. HERE THE GRIEVANCE OF THE ASSESSEE IN OUR CO NSIDERED OPINION IS JUSTIFIED. IN THE SURVEY CONDUCTED A SURRENDER OF RS.47 00 000/- HAS BEEN MADE WHICH INCLUDED DISCREPANCIES IN STOCK ALSO AND THEREFORE SEPARATE ADDITION IS NOT CALLED FOR. THEREFORE THE ID. CIT( A) WAS NO CORRECT IN CONFIRMING THE ADDITION MADE OF RS. 1 16 184/-. ACC ORDINGLY THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AND THIS GROUND OF APPE AL IS ALLOWED. 19. THUS THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THE CASE LAW RELIED ON BY LD. DR IS NOT APPLICABLE AS IN THAT CASE THE ASSESSEE WAS NOT ABLE TO DEMONSTRATE THAT THE S URRENDERED INCOME WAS FROM BUSINESS WHEREAS IN THE PRESENT CASE THE ASSESSEE HAD CLEARLY ESTABLISHED THAT THE SURRENDERED INCOME WAS FROM BU SINESS INCOME. THE ITEMS OF SURRENDERED RELATED TO DISCREPANCIES IN ST OCK AND OTHER UNEXPLAINED TRANSACTIONS WHICH NECESSARILY RELATED TO THE BUSINESS OF THE ASSESSEE. THE CASE LAWS RELIED ON BY LD. AR THAT HO N'BLE TRIBUNAL CANNOT REVIEW ITS OWN ORDER AND UNDER THE PROVISIONS OF SE CTION 254(2) AND IT HAS VERY LIMITED POWER TO RECTIFY MISTAKE ALSO IS I N FAVOUR OF ASSESSEE. A BARE LOOK AT SECTION 254(2) OF THE ACT WHICH DE ALS WITH RECTIFICATION MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT FROM THE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APP LICATION OF SECTION 254(2) MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 6 A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE HOWEVER DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. MISTA KE MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERRO R IN INTERPRETING IT IS AN ERROR; A FAULT A MISUNDERSTANDING A MISCONC EPTION. APPARENT MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECTI ON 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF TH E TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY THE AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGI NALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBL E UNDER THE PROVISIONS OF SECTION 254(2). FURTHER WHERE AN ERR OR IS FAR FROM SELF EVIDENT IT CEASES TO BE AN APPARENT ERROR. IT IS N O DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 25 4(2) IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAN D IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATE D PROCESS OF INVESTIGATION ARGUMENT OR PROOF. AS OBSERVED BY TH E SUPREME COURT IN MASTER CONSTRUCTION CO. (P) LTD. V. STATE OF ORISSA [1966] 17 STC 360 AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD S HOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELA BORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO E XPRESSED IN SATYANARAYAN LAXMINARAYAN HEDGE V. MALLIKARJUN BHAV ANAPPA TIRUMALE AIR 1960 SC 137. IT IS TO BE NOTED THAT THE LANGUAG E USED IN ORDER 47 MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 7 RULE 1 OF THE CODE OF CIVIL PROCEDURE 1908 IS DIFF ERENT FROM THE LANGUAGE USED IN SECTION 254(2) OF THE ACT. POWER IS GIVEN T O VARIOUS AUTHORITIES TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD IS U NDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PET ITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECORD. MISTAKE IS AN ORDINARY WORD BUT IN TAXATION LAWS IT HAS A SPECIAL SIGNIFICANCE . IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WIT HIN ITS PURVIEW. IT COMPREHENDS ERRORS WHICH AFTER A JUDICIOUS PROBE I NTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE ARE DISCERNED. THE WORD MISTAKE IS INHERENTLY INDEFINITE IN SCOPE AS WHAT MAY BE A MI STAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WH ICH A DULY AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE R ECORD. IN ORDER TO ATTRACT THE POWER TO RECTIFY UNDER SECTION 254(2) I T IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO B E RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM T HE RECORD. A DECISION ON THE DEBATABLE POINT OF LAW OR UNDISPUTED QUESTIO N OF FACT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEA RS TO BE SO EX FACIE AND IT IS IN CAPABLE OF ARGUMENT OR DEBATE. IT IS T HEREFORE FOLLOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAI LURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNO T BE CORRECTED BY WAY OF RECTIFICATION. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KA RAN CHAND THAPAR & BR. P. LTD. 176 ITR 535 HAS HELD AS UNDER : MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 8 IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E 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 S OME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT ON A FAIR READING OF THE JU DGMENT OF THE TRIBUNAL FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT M ATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH UNLESS OF COURSE THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE . IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CU MULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOW S THAT IT HAS IN FACT DONE SO THERE IS NO REASON TO INTERFERE WITH THE D ECISION OF THE TRIBUNAL. SIMILARLY THE HON'BLE MADRAS HIGH COURT DECISIONS IN T.C.(A) NO. 156 OF 2006 DATED 21.08.2007 IN THE CASE OF CIT VS. TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. WHEREIN THE HON'BLE HIGH COURT HELD AS UNDER: THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHE N THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING ITS MIND AGAIN ST THE ASSESSEE THE SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF T HE ACT. THERE WAS NO NECESSITY WHATSOEVER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER THE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL WE COULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER AS TO HOW T HE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASONS. THERE IS NO APPARENT ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHOR ITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PETITION IN T HE NAKE OF REVIEWING ITS OWN ORDER. IN THE PRESENT CASE IN THE GUISE OF RECTIFICATION THE TRIBUNAL REVIEWED ITS EARLIER ORDER AND ALLOWED THE MISCELLANEOUS PETITIO N WHICH IS NOT IN ACCORDANCE WITH LAW. SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DO ING SO WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAK ES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) IS LIMITED AND NARROW. IT IS RESTRIC TED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE OR DER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORDER IS SNOT PERMISSIBLE UNDER SE C. 254(2) OF THE ACT. ONLY GLARING AND ANY MISTAKE APPARENT ON THE FACE OF THE RECORD ALONE CAN BE RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. MA NO. 27 (ASR)/2017 (ARISING OUT OF I.T.A. NO.405/(ASR)/2013 ASST. YEAR:2007-08 9 FURTHER THE HON'BLE DELHI HIGH COURT JUDGMENT ON T HE SCOPE OF RECTIFICATION U/S 254(2) AS REPORTED IN THE CASE OF RAS BIHARI BANSAL VS. CIT 293 ITR 365 HAS HELD AS UNDER: SECTION 254 OF THE INCOME TAX ACT 1961 ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT M ISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION EVEN IF THE CONCLUSION IS WRONG WILL BE NO GROUND FOR MOVING AN APPLICATI ON UNDER SECTION 254(2) OF THE ACT. FURTHER IN THE GARB OF AN APPLICATION FOR RECTIFICATION THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER WHICH IS BEYOND THE SCOPE OF THE SECTION. THEREFORE IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE CASE AND IN THE LIGHT OF RATIO OF THE DECISIONS CITED AND DI SCUSSION AS ABOVE WE DO NOT FIND ANY SUBSTANCE IN THE APPLICATION OF REVENU E AND DISMISS THE SAME BEING DEVOID OF ANY MERITS. 6. IN VIEW OF THE ABOVE THE MISCELLANEOUS APPLICAT ION FILED BY REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 30/11/2017 GP/SR./PS COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER