The Dy. Commissioner of Income Tax, Pathankot v. Sh. Shakun Agarwal, Pathankot

MA 53/ASR/2016 | 2010-2011
Pronouncement Date: 23-11-2017 | Result: Dismissed

Appeal Details

RSA Number 5320924 RSA 2016
Assessee PAN AHPPA7621P
Bench Amritsar
Appeal Number MA 53/ASR/2016
Duration Of Justice 1 year(s) 2 month(s)
Appellant The Dy. Commissioner of Income Tax, Pathankot
Respondent Sh. Shakun Agarwal, Pathankot
Appeal Type Miscellaneous Application
Pronouncement Date 23-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 23-11-2017
Date Of Final Hearing 07-07-2017
Next Hearing Date 07-07-2017
First Hearing Date 07-07-2017
Assessment Year 2010-2011
Appeal Filed On 23-09-2016
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. 53/(ASR)/2016 (ARISING OUT OF I.T.A. NO. 475/(ASR)/2014) ASSESSMENT YEAR: 2010-11 PAN: AHPPA7621P DY. C. I. T. CIRCLE-VI PATHANKOT. VS. SH. SAKUN AGGARWAL S/O SH. ANIL AGGARWAL GARDEN COLONY PATHANKOT. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (D.R. ) RESPONDENT BY: SH. ASHWANI KALIA (C.A .) DATE OF HEARING: 15.09.2017 DATE OF PRONOU NCEMENT: 23.11.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY RE VENUE AGAINST THE ORDER OF THE HON'BLE TRIBUNAL DATED 27.05.2016. 2. THE REVENUE HAS FILED THIS APPLICATION FOR RECTI FICATION OF THE MISTAKE AS IN THE OPINION OF REVENUE THE HON'BLE T RIBUNAL HAD FOLLOWED THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF GURDAS GARG VS. CIT VS. BATHINDA FOR ALLOWING RELIE F TO THE ASSESSEE FOR VIOLATION OF PROVISIONS OF SECTION 40A(3) OF THE AC T. BY WAY OF FILING REVISED M A FOR RECALLING THE ORDER HON'BLE ITAT THE REVEN UE WITHOUT PREJUDICE TO THE EARLIER GROUND FOR RECALLING THE ORDER HAS STAT ED THAT THE FINDINGS OF THE ASSESSING OFFICER IN PARA 3.3 AT PAGE 9 OF THE ASSESSMENT ORDER HAS NOT BEEN RIGHTLY APPRECIATED AND THEREFORE THERE WA S A MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH NEEDS RECTIFICATION. MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 2 3. AT THE OUTSET THE LD. DR SUBMITTED THAT THE AS SESSING OFFICER HAD MADE AN ADDITION U/S 40A(3) FOR VIOLATION OF PROVIS IONS OF U/S 40A(3) WHICH THE HON'BLE TRIBUNAL HAD DELETED BY FOLLOWING THE JUDGMENT OF GURDAS GARG VS. CIT VS. BATHINDA PRONOUNCED AS PUNJ AB & HARYANA HIGH COURT. IN THIS RESPECT IT WAS SUBMITTED THAT T HE SAID JUDGMENT OF GURDAS GARG VS. CIT VS. BATHINDA IS PENDING BEFORE HON'BLE HIGH COURT AS THE DEPARTMENT HAD FILED A REVIEW PETITION WHICH HAS BEEN ADMITTED AND THEREFORE THE ORDER PASSED BY HON'BLE TRIBUNAL BY FOLLOWING THE ABOVE SAID JUDGMENT NEEDS TO BE WITHDRAWN. THE LD. DR FURTHER STATED THAT THE HON'BLE ITAT HAS NOT APPRECIATED THE ASSES SING OFFICERS FINDING IN PARA 3.3 AT PAGE 9 OF ASSESSMENT ORDER WHEREIN T HE ASSESSING OFFICER HAS HELD THAT THE LAND WAS NEVER INTENDED TO BE HEL D AS INVESTMENT AS IT WAS NOT TRANSFERRED IN THE NAME OF ASSESSEE AT ALL AND THEREFORE THE TRANSACTIONS OF THE ASSESSEE HAS TO BE TREATED AS B USINESS TRANSACTION. 4. THE LD. AR ON THE OTHER HAND SUBMITTED THAT THE HON'BLE TRIBUNAL HAS PASSED A DETAILED AND REASONED ORDER AND IN THI S RESPECT OUR ATTENTION WAS INVITED TO THE FINDINGS OF THE HON'BL E TRIBUNAL AS CONTAINED FROM 12 ONWARDS. THE LD. AR SUBMITTED THAT HON'BLE TRIBUNAL HAS HELD THAT AUTHORITIES BELOW HAS ASSUMED THAT ASSESSEE MU ST HAVE FIRST PURCHASED THE LAND BY MAKING CASH PAYMENTS AND THEN MUST HAVE SOLD. THEREFORE THE TRIBUNAL HAS RIGHTLY HELD THAT THE AD DITION CANNOT NOT BE MADE BASED ON ASSUMPTIONS. THE LD. AR SUBMITTED THA T THE HON'BLE TRIBUNAL HAD DELETED THE DISALLOWANCE BY RECORDING ITS FINDINGS AT PARA 12 AND PARA 13 AND IT HAD HELD THAT NO CASH PAYMENT S WERE MADE AND MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 3 THEREFORE THERE WAS NO QUESTION OF VIOLATION OF PRO VISIONS OF SECTION 40A(3) OF THE ACT. IT WAS SUBMITTED THAT IT HAD FUR THER HELD THAT EVEN IF IT IS ASSUMED THAT ASSESSEE HAD FIRST PURCHASED THE LA ND AND HAD MADE PAYMENTS IN CASH IN HAND AND EVEN THEN THE FOLLOWIN G THE CASE LAW OF GURDAS GARG VS. CIT VS. BATHINDA THE ADDITION WAS N OT SUSTAINABLE. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE DETAILE D FINDINGS HAS BEEN RECORDED BY HON'BLE TRIBUNAL IN PARA 12 WHEREIN IT HAS HELD THAT NO CASH PAYMENTS WERE MADE AND THE ADDITION WAS BASED ONLY ON PRESUMPTIONS AND SURMISES. IT HAS FURTHER HELD THAT PAYMENTS WER E MADE BY BUYERS DIRECTLY IN THE PRESENT OF SUB-REGISTRAR AS HAS BEE N MENTIONED IN THE DEEDS AND THEREFORE IN VIEW OF THESE CIRCUMSTANCES THE HON'BLE TRIBUNAL HAD RIGHTLY HELD THAT QUESTION OF DISALLOWANCE U/S 40A(3) DOES NOT ARISE. IN PARA 13 THE HON'BLE TRIBUNAL HAS HELD THAT EVEN IF IT IS ASSUMED THAT ASSESSEE MUST HAVE PURCHASED THE LAND AND HAD MADE PAYMENTS IN CASH EVEN THEN THE DISALLOWANCE CANNOT BE MADE IN VIEW O F THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SH. GURDAS GARG. FROM THE COMBINED READING OF THE ORDER OF THE TRIBU NAL FROM PARA 12 AND 13 IT IS OBSERVED THAT HON'BLE TRIBUNAL HAS PRIMARI LY DELETED THE ADDITION BY HOLDING THAT THE ADDITION WAS MADE ONLY ON PRESU MPTIONS AS NO CASH PAYMENTS WERE MADE. FOR THE SAKE OF CONVENIENCE TH E PARA 12 OF THE HON'BLE TRIBUNAL IS REPRODUCED BELOW: 12. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTED FACT THAT AN AGREEMENT TO SELL FOR PURCHASE TO 246.50 MARLAS OF LAND ALONG WITH A MAP SHOWING PLOTTING OF SUCH LAND WAS FOUND DURING SURVEY PROCE EDINGS ON THE MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 4 ASSESSEE. IT IS ALSO AN UNDISPUTED FACT THAT ASSESS EE HAD SURRENDERED AN AMOUNT OF RS.25 00 000/- WHICH WAS PAID BY ASSESSEE TO THE SELLERS OF LAND AS A ADVANCE. THE SAID SUM OF RS.25 00 000/- W AS PAID ON 26.05.2009 AS PER THIS AGREEMENT. IT IS ALSO AN UND ISPUTED FACT THAT THE TRANSACTION FOR PURCHASE OF THIS LAND COULD NOT BE CARRIED OUT BETWEEN THE ASSESSEE AND SELLERS OF LAND AS IS EVIDENT FROM THE COPIES OF REGISTRATION DEEDS EXECUTED DIRECTLY BY THE SELLERS OF LAND IN F AVOUR OF VARIOUS PERSONS. THE COPIES OF SUCH SALE DEEDS WHICH THE SELLERS OF LAND HAD EXECUTED IN FAVOUR OF VARIOUS PERSONS WAS FILED WITH THE ASSESS ING OFFICER VIDE LETTER DATED 30.11.2012 AND THIS FACT IS ALSO MENTIONED BY ASSESSING OFFICER IN HIS ASSESSMENT ORDER AT PAGE 2 OF HIS ORDER. THE PH OTO COPIES OF SUCH SALE DEEDS IS ALSO PLACED AT PAPER BOOK PAGE 11 TO 39. T HE EXAMINATION OF SALE DEEDS SHOWS THAT ON VARIOUS DATES THE FOLLOWING SAL E DEEDS WERE EXECUTED. DATE OF SELL NAME OF BUYER NAME OF SELLER 3.08.2009 SMT. GEETA VERMA SH. PARSOTAM LAL AS POWER OF ATTORNEY HOLDER OF SMT. RANI MAHAJAN. 28.10.2009 SH. YOGESH KUMAR SH. RAM MURTI 28.10.2009 SH. VISHAL GUPTA SH. RAM MURTI 28.10.2009 NARENDRA KUMAR AS POWER OF ATTORNEY HOLDER OF SH. DEV RAJ SH VINEET GUPTA 27.01.2010 SMT. SHAKUNTLA DEVI SH. RAM MURTI 27.01.2010 SH. T MOHAN LAL SH. RAM MURTI 02.03.2010 SH. ATAM PRASAD AS POWER OF ATTORNEY HOLDER OF RANI MAHAJAN SH. TARUN THAKUR FURTHER WE FIND THAT THE ABOVE SALE DEEDS WERE EXEC UTED IN THE PRESENCE OF SUB-REGISTRAR PATHANKOT AND PHOTOGRAPHS OF SELL ERS AND BUYERS IS ALSO AFFIXED ON THE SALE DEEDS AND BELOW THE PHOTOGRAPHS OF SELLERS AND BUYERS THERE IS NO MENTION OF THE NAME OF THE ASSE SSEE. THEREFORE ONE FACT IS CLEAR THAT ASSESSEE WAS NOT A PARTY TO THE SALE DEEDS AND THEREFORE THE PRESUMPTION MADE BY THE AUTHORITIES BELOW THAT LAND WAS SOLD BY ASSESSEE IS NOT BASED UPON THE FACTS AND MA TERIAL ON RECORD. THE AUTHORITIES BELOW HAS WRONGLY MADE A PRESUMPTION TH AT ASSESSEE MUST HAVE FIRST PURCHASED THE LAND AND MUST HAVE PAID TH E PAYMENT TO SELLERS OF LAND AFTER OBTAINING THE SAME FROM THE ULTIMATE BUYERS AND FURTHER HAS WRONGLY PRESUMED THAT SUCH PAYMENTS WERE MADE IN CA SH AND THEREFORE WRONGLY HELD THAT ASSESSEE MUST HAVE VIOLATED THE P ROVISIONS OF SECTION 40A(3) OF THE ACT. THIS PRESUMPTION IS BASED UPON SURMISES AND ARE NOT BASED UPON THE FACTS OF THE CASE AS NAME OF THE ASS ESSEE DO NOT APPEAR IN ANY OF THE SALE DEEDS AND FURTHERMORE WE FIND THAT IN SOME OF THE CASES THE BUYERS HAD MADE PAYMENTS TO SELLERS VIDE CHEUQE AS IS FOUND IN THE CASE OF MR. YOGESH SHARMA AND VISHAL GUPTA. FURTHER WE FIND THAT THE PAYMENTS BY BUYERS WERE MADE IN THE PRESENCE OF SUB -REGISTRAR AS HAS BEEN MENTIONED IN THE SALE DEEDS ITSELF THEREFORE THE PRESUMPTION MADE BY THE AUTHORITIES BELOW IS NOT JUSTIFIED. FURTHER WE FIND THAT ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR PURCHASE OF LAND MEAS URING 246.50 MARLAS OUT OF WHICH AUTHORITIES BELOW HAVE ASSUMED THAT ON LY PAYMENT FOR 121.78 MARLAS OF LAND WAS MADE IN THE YEAR AND THAT IS WHY THEY HAVE MADE DISALLOWANCE UNDER SECTION 40A(3) WITH RESPECT TO AMOUNT OF MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 5 PURCHASE FOR 121.78 MARLAS. THIS ACTION OF AUTHORIT IES BELOW ITSELF PROVES THAT AUTHORITIES BELOW HAD MADE THE ADDITION ONLY O N THE BASIS OF ASSUMPTIONS. THE ASSESSING OFFICER HAS PRESUMED THA T ONLY SOLD QUANTITY OF LAND WAS PURCHASED DURING THE YEAR UNDER CONSIDE RATION. THERE IS NOTHING ON RECORD WITH THE AUTHORITIES BELOW TO ARR IVE AT THIS CONCLUSION. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES WE DO NOT FIND THAT ACTION OF LEARNED CIT(A) IN CONFIRMING THE DISALLOWANCE MADE BY ASSESSING OFFICER U/S 40A(3) OF THE ACT CAN BE UPHELD AS THERE IS NO EVIDENCE OF PURCHASE OF LAND BY ASSESSEE AND ALSO THERE IS NO EVIDENCE T HAT ASSESSEE HAD MADE PAYMENTS TO THE OWNERS OF LAND AS HAS ALREADY BEEN ESTABLISHED BY THE FACT THAT OWNERS HAD RECEIVED PAYMENTS FORM ACTUAL BUYERS ONLY AND THEREFORE THERE CAN NOT BE ANY QUESTION OF DISALLO WANCE U/S 40A(3). THEREFORE WE HOLD THAT ON MERITS AND FACTS OF THE CASE NO DISALLOWANCE WAS WARRANTED U/S 40A(3). THEREFORE THERE IS NO MISTAKE IN THE ORDER OF HON 'BLE TRIBUNAL AS REGARDS THE DISALLOWANCE U/S 40A(3) IS CONCERNED. A S REGARDS THE ARGUMENT OF LD. DR THAT ASSESSING OFFICER HAD CLEAR LY HELD THE TRANSACTION TO BE A BUSINESS TRANSACTION WE FIND T HAT EVEN HON'BLE TRIBUNAL VIDE PARA 15 HAS HELD THAT THE TRANSACTION WAS A BUSINESS TRANSACTION AND THEREFORE ALSO THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE REVENUE IN THE GUISE OF MISCELLANEOUS APPLICATION WANTS THE HON'BLE TRIBUNAL TO REVIEW ITS ORDER WHICH IS N OT PERMISSIBLE AS THE TRIBUNAL IS EMPOWERED TO RECTIFY ANY MISTAKES APPAR ENT FROM RECORD. 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 MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 6 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 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 MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 7 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 : 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 . MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 8 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. 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 MA NO. 53 (ASR)/2016 (ARISING OUT OF I.T.A. NO.475/(ASR)/2014) ASST. YEAR:2010-11 9 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 23.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 23/11/2017 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