The Income Tax Officer, Jalandhar v. Anthony FR Madasser, Jalandhar

MA 33/ASR/2017 | 2011-2012
Pronouncement Date: 06-11-2017 | Result: Dismissed

Appeal Details

RSA Number 3320924 RSA 2017
Assessee PAN APQPM9874B
Bench Amritsar
Appeal Number MA 33/ASR/2017
Duration Of Justice 11 month(s) 29 day(s)
Appellant The Income Tax Officer, Jalandhar
Respondent Anthony FR Madasser, Jalandhar
Appeal Type Miscellaneous Application
Pronouncement Date 06-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 06-11-2017
Assessment Year 2011-2012
Appeal Filed On 07-11-2016
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. NOS. 24 25&29TO36/(ASR)/2017 (ARISING OUT OF I.T.A. NOS. 253 348 251 346/ASR/201 4 I.T.A. NOS.380 408 54 115/ASR/2015 I.T.A. NOS.252 347/(ASR)/2014) ASSESSMENT YEARS: 2010-11 2008-09 2012-13 2011-1 2 &2009-10 PAN: APQPM9874B DY. C. I. T. CIRCLE-2 JALANDHAR. VS. ANTHONY F. R. MADASSER PROP. M/S. NAVJEEVAN ENTERPRISES G-12 GURU GOVIND SINGH COLONY JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (D.R. ) RESPONDENT BY: SH. SUDHIR SEHGAL DATE OF HEARING: 08.09.2017 DATE OF PRONOU NCEMENT: 06.11.2017 ORDER PER T. S. KAPOOR (AM): THESE MISCELLANEOUS APPLICATIONS HAS BEEN FILED BY REVENUE AGAINST SEPARATE ORDERS DATED 17.02.2016 AND DATED 27.05.2016. THESE ORDERS WERE PASSED BY THE HON'BLE TRIBUNAL WITH RES PECT TO SIX APPEALS RELATING TO ITA NOS. 251 252 253 346 347 AND 34 8/ASR/2014 AND OTHER ORDER IN ITA NOS. 54 380 115 AND 408/ASR/20 15. 2. THE REVENUE HAS TAKEN SIMILAR GROUNDS IN THESE M ISCELLANEOUS APPLICATIONS AND HAS REQUESTED FOR RECTIFICATION OF ORDERS ON ACCOUNT OF THE CERTAIN ALLEGED MISTAKES APPARENT FROM RECORD. FOR THE SAKE OF CONVENIENCE THE ALLEGED MISTAKES AS CONTAINED IN TH E MISCELLANEOUS APPLICATIONS IN M. A. NO. 35/ASR/2017 ARE REPRODUCE D BELOW: M.A. NOS. 24 25&29 TO 36/(ASR)/2017 2 5. FROM A PERUSAL OF THE RECORDS IT IS NOTICED THA T THE FOLLOWING PERVERSITIES HAVE ARISEN IN THIS CASE WHICH NEED TH E KIND ATTENTION OF THIS HONBLE BENCH. (A) THE LD. CIT(A) VIDE PARA NO.6.9 OF HIS ORDER HA D CALCULATED THE PROFIT ON GROSS PURCHASES AT 27 . 66 % AND ON NET PURCHASES (AFTER DISCOUNT) AT 38 . 23 %. FINALLY HE APPLIED THE PROFIT RATE OF 38 . 23 % TO NET PURCHASES OF RS.5 32 29 279 /- (B) THE HONBLE ITAT HAS APPLIED THE PROFIT RATE CA LCULATED BY THE LD. CIT(A) FOR GROSS PURCHASES TO THE FIGURE OF NET PUR CHASES DETERMINED BY HIM. AS A RESULT DESPITE THE REJECTION OF BOOKS OF A/C THE PROFIT DETERMINED BY THE ITAT IN A.YS. 2008-09 AND 2012-13 IS EVEN LO WER THAN THE PROFIT RETURNED BY THE ASSESSEE. EVEN IN OTHER ASSESSMENT YEARS IT HAS BEEN DETERMINED AT A CONSIDERABLY LOWER AMOUNT. (C) AT PAGE-22 OF ITS ORDER THE HONBLE ITAT HAS IT SELF HELD THAT:- THE CONTENTION OF THE LD. COUNSEL THAT GROSS PROFI T RATIO WITH RESPECT TO SALES SHOULD HAVE BEEN APPLIED WHILE WORKING OUT SU PPRESSION IN THE GROSS PROFIT DOES NOT CARRY ANY FORCE AS THE SALE F IGURE IN THE TRADING ACCOUNT ITSELF WAS NOT RELIABLE. HOWEVER THE SUBSEQUENT ORDERS OF THE ITAT FOR APPLY ING THE PROFIT RATE OF GROSS PURCHASES INSTEAD OF THE NET PURCHASES APPEAR S TO BE SELF CONTRADICTORY. (D). THE PROFIT RATE APPLIED BY THE LD. CIT(A) TO NET PURCHASE IS NOT ON THE HIGHER SIDE AS THE PROFIT WHEN CALCULATED AS A PERCENTAGE OF THE GROSS AMOUNT (SALES) WILL BE SUBSTANTIALLY LOWER. SINCE SIMILAR ISSUES ARE INVOLVED IN THESE MISCELL ANEOUS APPLICATIONS AND THESE HAVE BEEN HEARD TOGETHER TH EREFORE FOR THE SAKE OF CONVENIENCE A COMMON AND CONSOLIDATED ORDER IS B EING PASSED. 3. AT THE OUTSET THE LD. DR SUBMITTED THAT LD. CI T(A) HAD CALCULATED PROFIT ON GROSS PURCHASES AS WELL AS ON NET PURCHAS ES MADE BY THE ASSESSEE AND FINALLY HE HAD APPLIED PROFIT RATIO CA LCULATED ON THE BASIS OF NET PURCHASES WHICH WAS HIGHER THAN GROSS PROFIT RA TIO CALCULATED ON THE BASIS OF GROSS PURCHASES. THE LD. DR SUBMITTED THAT THOUGH THE HON'BLE TRIBUNAL HAD AGREED TO THE METHOD OF CALCULATION OF ESTIMATING GROSS PROFIT BUT INSTEAD OF APPLYING GROSS PROFIT MARGIN CALCULATED ON THE BASIS OF NET PURCHASES APPLIED GROSS PROFIT MARGIN CALCUL ATED ON THE BASIS OF M.A. NOS. 24 25&29 TO 36/(ASR)/2017 3 GROSS PURCHASES TO THE FIGURE NET PURCHASES AND THE REFORE HE ARGUED THAT THERE WAS A MISTAKE APPARENT FROM RECORD WHICH NEEDS TO BE RECTIFIED U/S 254(2) OF THE ACT. THE LD. DR FURTHER SUBMITTED THAT THE HON'BLE TRIBUNAL ITSELF HAD HELD THAT SALES WERE NO T RELIABLE AND HAD DISMISSED THE CONTENTION OF LD. AR THAT G.P. RATIO SHOULD HAVE BEEN CALCULATED ON SALES. 4. THE LD. AR ON THE OTHER HAND SUBMITTED THAT HON' BLE TRIBUNAL WHILE PASSING THE ORDER HAS DEALT UPON THE ISSUE EL ABORATELY IN PARA 28 ONWARDS AT PAGE 21 TO 25 AND EACH AND EVERY ISSUE H AS BEEN DISCUSSED THREADBARE AND THEREFORE THE MISCELLANEOUS APPLICAT IONS AS FILED BY THE DEPARTMENT ARE NOT MAINTAINABLE BECAUSE THE HON'BL E ITAT HAS PASSED A SPEAKING ORDER BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ONLY ISSUE HAS BEEN ADJUDICATED BY THE HON'BLE TRIB UNAL AS TO WHETHER THE GROSS PROFIT IS TO BE APPLIED CALCULATED ON GRO SS PURCHASES OR ON NET PURCHASES. IT WAS SUBMITTED THAT THOUGH THE LD. CIT (A) HAS APPLIED THE HIGHER RATE OF PROFIT BASED ON NET PURCHASES THE HON'BLE TRIBUNAL HAD APPLIED THE SAME G.P. WHICH HAS BEEN CALCULATED OF LD. CIT(A) ON GROSS PURCHASES AND OUR SPECIFIC ATTENTION WAS INVITED TO PARA 28 OF THE ORDER OF THE TRIBUNAL. THE LD. AR SUBMITTED THAT HON'BLE TRIBUNAL HAS CLEARLY HELD THAT THE GROSS PROFIT RATIO RELIED ON BY LD. C IT(A) GAVE ABSURD FIGURES AND AFTER RECORDING A FINDING OF FACT THE HON'BLE TRIBUNAL HAS HELD THAT THE APPLICATION OF THIS GROSS PROFIT RATIO WAS IN C ONSONANCE WITH THE FINDINGS OF ASSESSING OFFICER WHICH HE HAD MADE IN THE BEGINNING OF THE ASSESSMENT ORDER AND WHERE HE HAS HELD THAT RATE OF PROFIT IN THIS TRADE IS MORE THAN 20% AND THEREFORE IN VIEW OF THESE FAC TS THE LD. AR ARGUED M.A. NOS. 24 25&29 TO 36/(ASR)/2017 4 THAT THE HON'BLE TRIBUNAL HAS RECORDED A FINDING OF FACT FOR APPLYING GROSS PROFIT RATE AND THEREFORE THERE IS N O MISTAKE APPARENT FROM RECORD. THE LD. AR SUBMITTED THAT IT IS A SETT LED LAW THAT EITHER PARTY CANNOT ASK FOR REVIEW IN THE GARB OF APPLICAT ION U/S 254(2) WHICH IS SUBJECT OF A LONG DRAWN PROCESS OF ARGUMENTS AND IN VIEW OF THE ABOVE IT WAS PRAYED THAT APPLICATIONS OF DEPARTMENT NEEDS TO BE DISMISSED. THE LD. AR SUBMITTED THAT IN A NUMBER OF CASES IT HAS B EEN HELD THAT THE SCOPE OF RECTIFICATION U/S 254(2) IS VERY LIMITED A ND HON'BLE TRIBUNAL IS NOT EMPOWERED TO REVIEW ITS OWN ORDER AND RELIANCE IN THIS RESPECT WAS PLACED ON THE FOLLOWING CASE LAWS: (I) COMMISSIONER OF INCOME TAX V/S PEARL WOOLLEN M ILLS 91 TAXMAN 286 P&H-HON'BLE HIGH COURT (II) CIT V/S HERO CYCLES (P) LTD 94 TAXMAN 271 (SC) (III) PREM COLONIZERS PVT LTD. V/S ITO MA NO.130/DEL/2012 IN ITA NO.4753/DEL/2010 ITAT-DE LHI (IV) CIT V/S VARDHMAN SPINNING 139 CTR 322 PAH-HON'BLE HIGH COURT (V) M/S VIVEKANAND SOCIETY OF EDUCATION AND RESEARC H V/S ITO MA NO.90/ASR/2014 IN ITA NO.305/ASR/2010 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IN THE PRES ENT CASES THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE REJECTED AND THE ASSE SSING OFFICER HAD ESTIMATED THE INCOMES OF ASSESSEE BY APPLYING GROSS PROFIT RATIO ON THE BASIS OF GROSS PROFIT RATIO CALCULATED ON THE BASIS OF DISCOUNT RECEIVED BY ASSESSEE FROM THE SUPPLIERS. THE LD. CIT(A) CALCULA TED PROFIT ON GROSS PROFIT RATIO ON GROSS PURCHASES AS WELL AS GROSS PR OFIT RATIO ON NET PURCHASES (THAT IS AFTER DISCOUNT) AND APPLIED THE GROSS PROFIT RATIO ARRIVED AT ON THE BASIS OF NET PURCHASES WHEREAS TH E HON'BLE TRIBUNAL M.A. NOS. 24 25&29 TO 36/(ASR)/2017 5 HAD HELD THAT THE GROSS PROFIT RATIO CALCULATED ON THE BASIS OF GROSS PURCHASES IS TO BE APPLIED AND IN THIS RESPECT HAS PASSED A SPEAKING ORDER AFTER RECORDING ITS FINDINGS AT PARA 28 WHICH IS REPRODUCED BELOW: 28. NOW COMING TO APPEALS FILED BY ASSESSEE. THE L D. CIT(A) CALCULATED SUPPRESSION IN GROSS PROFITS BY APPLYING THE HIGHE ST GROSS PROFIT RATIO. WE ARE IN AGREEMENT WITH FINDINGS OF THE LD. CIT(A) SO FAR AS MENTIONED OF CALCULATION OF SUPPRESSION IN GROSS PROFIT IS CONC ERNED HOWEVER WE ARE NOT IN AGREEMENT WITH THE LD. CIT(A) WHERE HE APPLI ED THE HIGHEST PERCENTAGE OF GROSS PROFIT RATIO OUT OF THREE PERCE NTAGES WORKED OUT BY HIM. WE FIND THAT THE RESULTS ARRIVED AT BY APPLYING GRO SS PROFIT RATIO RELIED UPON BY LD. CIT(A) DO NOT DEPICT A FAIR AND TRUE PICTURE AS BY APPLYING EXORBITANT RATE OF GROSS PROFIT THE FIGURES ARRIV ED AT BY THE LD. CIT(A) ARE ABSURD. THE CORRECT GROSS PROFIT RATIO WORKED OUT BY THE LD. CIT(A) ON THE BASIS OF GROSS DISCOUNT RECEIVED BY THE ASSESSEE AS COMPARED TO GROSS PURCHASES MADE BY THE ASSESSEE SHOULD HAVE BEEN APP LIED AND THE APPLICATION OF THIS GROSS PROFIT RATIO IS IN CONSON ANCE WITH THE FINDINGS OF THE AO WHICH HE HAD MADE IN THE BEGINNING OF THE ASSESSMENT ORDER FOR AY 2009-10 WHERE HE HAS HELD THAT RATE OF PROFIT I N THIS TRADE IS MORE THAN 20%. THE GROSS PROFIT RATIO CALCULATED ON THE BASIS OF GROSS DISCOUNT AND GROSS PURCHASES AS TABULATED BELOW. 2008-09 25.17% 2009-10 24.29% 2010-11 26.09% THE CONTENTION OF THE LD. COUNSEL THAT GROSS PROFIT RATIO WITH RESPECT TO SALES SHOULD HAVE BEEN APPLIED WHILE WORKING OUT SUPPRESS ION IN THE GROSS PROFIT DOES NOT CARRY ANY FORCE AS THE SALE FIGURE IN THE TRADING ACCOUNT ITSELF WAS NOT RELIABLE. THEREFORE ANY WORKING WITH RESPECT T O SALE WILL NOT GIVE FAIR RESULTS. MOREOVER THE ARGUMENT OF THE LD. COUNSEL THAT ASSESSEE BE ALLOWED RELIEF ON ACCOUNT OF WASTAGE ETC. EQUIVALEN T TO 10% OF PURCHASE ALSO DO NOT CARRY ANY FORCE IN VIEW OF THE FACT THA T METHOD OF VALUATION OF STOCK AS ADOPTED BY THE ASSESSEE AND AS NOTED IN A UDIT REPORT IS COST OR MARKET PRICE WHICHEVER IS LESS. THEREFORE THE DE TERIORATION IN VALUE OF STOCK IF ANY ON ACCOUNT OF CHANGE IN SYLLABUS/WASTA GE MUST ALREADY HAVE BEEN TAKEN INTO ACCOUNT WHILE VALUING THE STOCK AT MARKET PRICES AS APPARENTLY MARKET VALUE OF SUCH STOCK WOULD HAVE BE EN LOWER THAN THE COST PRICE. IN VIEW OF THE ABOVE THESE TWO ARGUME NTS OF THE LD. COUNSEL ARE REJECTED AND THE FORMULA ADOPTED BY THE LD. CIT(A) IS UPHELD SUBJECT TO APPLICATION OF GROSS PROFIT RATE WORKED OUT BY HIM. THE SUPPRESSION OF GROSS PROFIT IN VARIOUS YEARS BY APPLYING SUCH GROS S PROFIT RATIO BASED UPON GROSS PURCHASES AND GROSS DISCOUNT FOR THREE Y EARS IS WORKED OUT AS UNDER: FROM THE ABOVE FINDINGS OF THE HON'BLE TRIBUNAL IT IS APPARENT THAT THE HON'BLE TRIBUNAL HAS GIVEN ITS FINDINGS AFTER D UE APPLICATION OF MIND AND AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES O F THE CASES AND AFTER REJECTING THE ARGUMENTS OF LD. AR TO CALCULATE THE G.P. ON SALES AND M.A. NOS. 24 25&29 TO 36/(ASR)/2017 6 THEREFORE THERE IS NO MISTAKE APPARENT FROM RECORD WHICH COULD BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE LD. AR HAS RELIED ON A NUMBER OF CASE LAWS HOL DING THAT TRIBUNAL CANNOT REVIEW ITS OWN ORDERS AND IT CAN ON LY RECTIFY MISTAKE WHICH IS APPARENT FROM MISTAKE. 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) 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 M.A. NOS. 24 25&29 TO 36/(ASR)/2017 7 ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATE D PROCESS OF INVESTIGATION ARGUMENT OR PROOF. AS OBSERVED BY THE 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 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 M.A. NOS. 24 25&29 TO 36/(ASR)/2017 8 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 : 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. M.A. NOS. 24 25&29 TO 36/(ASR)/2017 9 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. 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 IONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 06/11/2017 M.A. NOS. 24 25&29 TO 36/(ASR)/2017 10 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