Jai Prakash Sahu, Jhansi v. DCIT, Jhansi

MA 7/AGR/2010 | 2001-2002
Pronouncement Date: 27-08-2010 | Result: Dismissed

Appeal Details

RSA Number 720324 RSA 2010
Assessee PAN APFCS8624C
Bench Agra
Appeal Number MA 7/AGR/2010
Duration Of Justice 7 month(s) 6 day(s)
Appellant Jai Prakash Sahu, Jhansi
Respondent DCIT, Jhansi
Appeal Type Miscellaneous Application
Pronouncement Date 27-08-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 27-08-2010
Date Of Final Hearing 23-07-2010
Next Hearing Date 23-07-2010
Assessment Year 2001-2002
Appeal Filed On 20-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER AND SHRI P.K. BANSAL ACCOUNTANT MEMBER M.A. NO.07/AGR/2010 (IN ITA NO.194/AGR/2007 ASST. YEAR: 2001-02 SHRI JAI PRAKASH SAHU VS. D.C.I.T. CIRCLE-1 JHANSI. PROP. M/S SAHU TRADERS GANDHI GANJ MAURANIPUR JHANSI. (PAN : APFCS 8624 C). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAKASH NARAIN ADVOCATE RESPONDENT BY : SHRI VINOD KUMAR JR. D.R. ORDER PER P.K. BANSAL A.M.: THIS MISCELLANEOUS APPLICATION (M.A.) HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER OF THIS TRIBUNAL DATED 28.11.2008 ASKING FOR RECTIFICA TION OF THE TRIBUNAL ORDER. IT WAS CONTENDED THAT THE ASSESSEE SUBMITTED RETURN OF INCOME ON 23. 10.2001 DECLARING AN INCOME OF RS.80 828/-. ASSESSMENT WAS COMPLETED ON AN INCOME OF RS.7 59 77 0/- AFTER MAKING THE ADDITION OF RS.6 78 942/- ON ACCOUNT OF UNDERVALUATION OF THE S TOCK WHICH WAS CONFIRMED BY THE CIT(A) VIDE ORDER DATED 24.05.2004. THE ORDER OF THE CIT( A) WAS CONFIRMED BY THE TRIBUNAL DATED 25.01.2006. THE ASSESSEE WENT IN APPEAL BEFORE THE HONBLE ALLAHABAD HIGH COURT. THE HONBLE ALLAHABAD HIGH COURT HELD AS UNDER :- 2 BECAUSE OF THE ABOVE REASONS WE ARE UNABLE TO FIN D ANY QUESTION OF LAW ON WHICH THIS APPEAL CAN BE ADMITTED. IT IS ACCORD INGLY DISMISSED. 2. IT WAS CONTENDED THAT THE HIGH COURT DID NOT EXA MINE THE APPEAL OF THE ASSESSEE ON MERIT BASIS. THE A.O. IMPOSED PENALTY OF RS.2 30 500/- W HICH WAS CONFIRMED BY THE CIT(A) AND THE TRIBUNAL VIDE ORDER DATED 28.11.2008 IT WAS POINTE D OUT THAT SIMILAR ADDITION OF RS.2 38 363/- ON ACCOUNT OF UNDERVALUATION OF THE CLOSING STOCK W AS MADE BY THE A.O. IN THE A.Y. 2003-04 WHICH WAS DELETED BY THE SAME CIT(A). IT WAS POINT ED OUT THAT THE BASIS AND THE PLEAS FOR MAKING AN ADDITION THOUGH OF DIFFERENT IN THAT A.Y. ARE THE SAME. WHILE IN THE EARLIER YEAR 2001- 02 THE ADDITION WAS CONFIRMED BUT IN THE LATER YEAR THE ADDITION WAS DELETED. THUS TWO DIFFERENT TREATMENTS WERE GIVEN ON THE SIMILAR ADDITION IN DI FFERENT YEARS. SINCE THE SIMILAR ADDITION WAS DELETED IN A.Y. 2003-04 NO QUESTION OF LEVY OF PEN ALTY UNDER SECTION 271(1)(C) OF THE ACT ARISE WHILE IN THE A.Y. 2001-02 A PENALTY OF RS.2 30 500/ - WAS IMPOSED ON THE ASSESSEE WHICH WAS TOTALLY UNJUSTIFIED. THE TRIBUNAL IS REQUESTED TO EXERCISE ITS INHERENT JURISDICTION TO RECTIFY THE PENALTY ORDER. RELIANCE WAS PLACED ON THE DECISION OF THE B BENCH OF ITAT MUMBAI IN THE CASE OF MAFATLAL SECURITIES LIMITED VS. JCIT 119 I TD 444 (MUM.) FOR THE PROPOSITION OF LAW THAT THE TRIBUNAL HAS INHERENT POWER TO REFIX THE CASES FOR HEARING TO PREVENT MISCARRIAGE OF JUSTICE OR TO GRANT SUBSTANTIAL JUSTICE TO THE ASSESSEE. 3. THE LD. D.R. ON THE OTHER HAND CONTENDED THAT THERE WAS NO MISTAKE APPARENT ON RECORD. THE TRIBUNAL HAS CONSCIOUSLY DECIDED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE PENALTY IMPOSED BY THE A.O. IT IS NOT A CASE OF RECTIFICAT ION OF MISTAKE BUT A CASE OF REVIEW OF ORDER OF THE TRIBUNAL. 3 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDER OF THE ITAT DATED 28.11.2008. WE HAVE ALSO GONE THROUGH THE DECISION AS RELIED ON BY THE LD. A.R. IN THE CASE OF MAFATLAL S ECURITIES LIMITED VS. JCIT (SUPRA). WE NOTED THAT THIS DECISION HAS BEEN PASSED BY THE ITAT ON A N APPEAL FILED BY THE ASSESSEE UNDER SECTION 254(1) OF THE I.T. ACT. THE DECISION DOES NOT RELA TE TO APPLICATION FILED UNDER SECTION 254(2). IN THAT CASE THE QUESTION BEFORE THE TRIBUNAL RAISED A T THE TIME OF RE-FIXATION OF THE HEARING ON 11.06.2007 RELATES TO WHETHER THE RE-FIXATION OF TH E HEARING WAS CORRECT OR NOT. THE FACTS OF THE CASE WERE THAT THE CASE WAS ORIGINALLY FIXED FOR HE ARING ON 07.08.2006. HOWEVER DURING THE COURSE OF FURTHER STUDY OF THE FILES THE BENCH THO UGHT THAT CERTAIN OBSERVATIONS IN THE ORDER OF THE SPECIAL BENCH IN THE CASE OF ACIT VS. CONCORD COMME RCIAL 95 ITD 117 (MUMBAI) WERE RELEVANT AND ALSO THE DECISION OF THE TRIBUNAL IN T HE CASE OF YUCCA FINVEST (P.) LTD. VS. DCIT 101 ITD 403 (MUM.) WERE ALSO RELEVANT. HENCE THE C ASE WAS RE-FIXED AND HEARD ON 11.06.2007. THE LD. COUNSEL FOR THE ASSESSEE TOOK STRONG OBJECT ION THAT AT THE TIME OF HEARING ON 07.08.2006 THE ASSESSEE PLACED RELIANCE IN THE CASE OF ASSOCIA TED CAPITAL MARKET MANAGEMENT (P.) LTD. VS. JCIT FOR THE A.Y. 1995-96 WHEREIN THE TRIBUNAL HAS DECIDED THE CASE IN FAVOUR OF THE ASSESSEE. THE CASE WAS HEARD AT THAT TIME MAINLY AS COVERED C ASE AND THE RESULT WAS PRONOUNCED DURING THE COURSE OF HEARING ITSELF. IN THIS CONTEXT THE LD . A.R. RAISED OBJECTION THAT THE TRIBUNAL DID NOT HAVE THE POWER TO REFIX THE CASE. THE TRIBUNAL WI TH REFERENCE TO THIS QUESTION HAS HELD AS UNDER:- THE TRIBUNAL HAS INHERENT POWER TO REFIX THE CASES TO PREVENT MISCARRIAGE OF JUSTICE OR TO GRANT SUBSTANTIAL JUST ICE. THE ONLY CONDITION WHICH IS REQUIRED TO BE SATISFIED IS THAT THE AGGRIEVED PART Y MUST BE GIVEN AN OPPORTUNITY OF HEARING WHICH HAD BEEN DONE IN THE INSTANT CASE HE NCE THERE WAS NOTHING WRONG IN THE PROCEDURE ADOPTED BY THE TRIBUNAL. [PARA 11] 4 MANY TIMES EX PARTE ORDERS ARE PASSED ON MERITS. H OWEVER WHEN AN APPLICATION IS BEING MADE BY THE AGGRIEVED PARTY FO R RE-HEARING THE APPEAL AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE SUCH EX PART E ORDER IS RECALLED THOUGH THERE IS NO EXPRESS PROVISION EXISTS IN THIS REGARD BECAU SE THE SOURCE OF SUCH POWER EXIST UNDER SECTION 254(1) ITSELF. IN THE SITUATIO N WHEN THE TRIBUNAL IS CLEAR IN ITS MIND THAT THE PROVISIONS OF SECTION 254(1) WERE NOT COMPLIED IN TRUE SPIRIT IN PASSING THE EX PARTE ORDER IT CAN RECALL SUCH ORDER FOR DISPOSAL AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO BOTH THE PARTIES AND I N SUCH CASES IT DOES NOT AMOUNT TO REVIEW OF ITS EARLIER ORDER BECAUSE THE PURPOSE OF SETTING ASIDE AN EX PARTE ORDER IS TO CONSIDER THE WHOLE MATTER FRESH BY AFFO RDING AN OPPORTUNITY OF BEING HEARD. SIMILARLY THE TRIBUNAL BEFORE PASSING A WR ITTEN ORDER CAN REFIX THE CASE SUO MOTU FOR CLARIFICATIONS SO AS TO APPRAISE THE I SSUE AFRESH IN THE LIGHT OF OTHER FACTS OR MATERIAL. THERE IS NOTHING WRONG IN IT BE CAUSE PRINCIPLES OF A NATURAL JUSTICE ARE EQUALLY APPLICABLE TO JUDICIAL AUTHORIT IES AS THESE ARE APPLICABLE TO THE PARTIES TO THE DISPUTES. [PARA 12] THOUGH THE TRIBUNAL IS NOT AKIN TO A COURT BUT THE FUNCTIONS DISCHARGED BY IT ARE SIMILAR TO A COURT AND HENCE IN ADDITION T O ITS EXPRESSED STATUTORY POWERS IT HAS GOT INHERENT POWER TO PASS SUCH ORDERS AS MA Y BE NECESSARY FOR THE ENDS OF JUSTICE. IN THE INSTANT CASE BY REFIXING THE CASE THE TRIBUNAL HAD EXERCISED ITSELF INHERENT POWERS AND BY GIVING AN OPPORTUNITY TO THE ASSESSEE IT HAD ALSO COMPLIED THAT PRINCIPLES OF NATURAL JUSTICE. HENCE ACTION OF THE TRIBUNAL WAS IN ACCORDANCE WITH LAW. ACCORDINGLY THE PRELIMINARY OBJECTION RAISED BY THE ASSESSEE IN THIS REGARD WAS TO BE REJECTED. [PARA 1 3]. 5. IN VIEW OF THE AFORESAID FACTS IN THAT CASE WE ARE OF THE VIEW THAT THE FINDING GIVEN BY THE TRIBUNAL ARE NOT APPLICABLE IN THE CASE BEFORE US. IN THE CASE BEFORE US THE ASSESSEE HAS MOVED AN APPLICATION FOR RECTIFICATION UNDER SECTION 254( 2). THE QUESTION AFTER AN ORDER HAS BEEN RESERVED BY THE TRIBUNAL WHETHER THE TRIBUNAL WAS COMPETENT TO GIVE FURTHER HEARING TO THE PARTIES IS NOT BEFORE US. WE HAVE PERUSED THE ORDE R OF THIS TRIBUNAL DATED 28.11.2008. WE NOTED THAT THIS TRIBUNAL UNDER PARA 5.1 HAS DEALT WITH TH E CONTENTION OF THE ASSESSEE THAT WHETHER THE ADDITIONS MADE IN THE A.Y. 2003-04 AND DELETED BY T HE FIRST APPELLATE AUTHORITY WAS BASED ON THE SIMILAR FACTS OR NOT. THE TRIBUNAL UNDER PARA 5.1 WHILE DEALING WITH THE CONTENTION OF THE ASSESSEE HAS DISTINGUISHED THE FACTS RELATING TO TH IS YEAR WITH THE A.Y. 2003-04 IN THE FOLLOWING MANNER :- 5 IN THIS REGARD WE WOULD AT THE VERY OUTSET MEET T HE ASSESSEES RELIANCE ON THE ORDER BY THE FIRST APPELLATE AUTHORITY IN IT S CASE FOR AY 2003-04. WHEREIN AS IT APPEARS SIMILARLY A CLAIM FOR LOW QUALITY M ATERIAL WAS MADE BY IT. IN THE SAID CASE WE FIND ON A PERUSAL OF THE SAID ORDER THAT THE ASSESSEE HAD CLEARLY REFLECTED THE INFERIOR QUALITY OF GOODS BEING URAD SEPARATELY IN ITS FINAL ACCOUNTS. AS SUCH THE REVENUES CASE DID NOT HOLD EVEN IN THE QUANTUM PROCEEDINGS. EVEN AS SOUGHT TO BE EMPHASIZED EARLI ER THE MATTER IS ENTIRELY FACTUAL WITH THE TRIBUNAL HAVING IN THE INSTANT CA SE FOUND THE ASSESSEES CASE AS COMPLETELY UNSUBSTANTIATED AND THE HONBLE JURISDIC TIONAL HIGH COURT ENDORSING THE SAME IN VIEW OF THE FACTUAL FINDINGS BY THE AUT HORITIES BELOW. IT BEING RATHER CONSISTENT WITH THE MATERIAL ON RECORD WE FIND NO BASIS FOR DRAWING ANY SUPPORT OR ASSISTANCE FROM THE SAID FINDINGS WITH THE ONLY COMMON FACTOR IN BOTH THE CASES AS IT APPEARS BEING THE IDENTITY OF THE ASS ESSEE. 6. IN THIS PARAGRAPH THE TRIBUNAL HAS CATEGORICALL Y HELD THAT THE ONLY COMMON FACTOR IN BOTH THE CASES WAS ONLY THE IDENTITY OF THE PARTIES. TH US THE TRIBUNAL IN THE ORDER DATED 28.11.2008 HAS DULY CONSIDERED THE CONTENTION OF THE ASSESSEE WHILE CONFIRMING THE PENALTY DURING THE A.Y. 2001-02. NOW THE QUESTION ARISES WHETHER THIS TRIB UNAL UNDER THESE FACTS HAS THE POWER TO RECTIFY THE ORDER OF THIS TRIBUNAL. WE ARE OF THE OPINION THAT THROUGH THIS APPLICATION THE ASSESSEE WANTS THE TRIBUNAL TO RE-APPRECIATE THE EVIDENCE PL ACED BEFORE IT AND TO ADJUDICATE THE ISSUE AFRESH. UNDER SECTION 254(2) THE POWERS OF THE TRI BUNAL ARE VERY LIMITED. IF AN ERROR HAS CREPT THEREIN WHICH IS APPARENT FROM THE FACE OF THE RECO RD THE TRIBUNAL HAS THE JURISDICTION FOR RECTIFICATION. RE-APPRECIATION OF THE EVIDENCE PLA CED BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING IS NOT PERMISSIBLE TO RE-ADJUDICATE THE ISS UE AFRESH UNDER THE GARB OF RECTIFICATION. THE SCOPE OF SECTION 254(2) OF THE ACT HAS BEEN REPEATE DLY EXAMINED BY THE APEX COURT AND VARIOUS HIGH COURTS AND IT WAS HELD THAT IF THE TRIBUNAL CO MMITS AN ERROR OF JUDGEMENT 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. IN THE CAS E OF CIT VS. VARDHMAN SPINNING (1997) 139 CTR (P&H) 322 : (1997) 226 ITR 296 (P&H) THEIR LORD SHIPS OF THE PUNJAB & HARYANA HIGH 6 COURT HAVE HELD IN SPECIFIC TERMS THAT THE TRIBUNA L IS CREATION OF STATUTES AND IT CAN EXERCISE ONLY THOSE POWERS WHICH HAVE BEEN CONFERRED UPON IT. TH E ONLY POWER CONFERRED ON THE TRIBUNAL UNDER S. 254(2) OF THE IT ACT 1961 IS TO RECTIFY A NY MISTAKE APPARENT FROM RECORD. THE JURISDICTION TO REVIEW OR MODIFY ORDERS PASSED BY T HE AUTHORITIES UNDER THE ACT CANNOT BE INTERFERED WITH ON THE BASIS OF SUPPOSED INHERENT R IGHTS. UNDER S.254(1) OF THE ACT THE TRIBUNAL AFTER HEARING THE CONTESTING PARTIES CAN PASS SUCH ORDER AS IT DEEMS FIT. SEC. 254(2) OF THE ACT SPECIFICALLY EMPOWERS THE TRIBUNALS AT ANY TIME WIT HIN FOUR YEARS OF THE DATE OF AN ORDER TO AMEND ANY ORDER PASSED BY IT UNDER S.254(1) OF THE ACT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD EITHER SUO MOTU OR ON AN APPLI CATION MADE. WHAT CAN BE RECTIFIED UNDER THIS SECTION IS A MISTAKE WHICH IS APPARENT AND PAT ENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. WHERE T WO OPINIONS ARE POSSIBLE THEN IT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE REC ORD. 7. IN THE CASE OF CIT VS. SUMAN TEA & PLYWOOD INDUS TRIES (P) LTD. (1997) 140 CTR (CAL) 454 : (1997) 226 ITR 34 (CAL) THEIR LORDSHIPS OF CA LCUTTA HIGH COURT HAVE EXPRESSED SIMILAR OBSERVATIONS AFTER HOLDING THAT UNDER S.254(2( OF T HE IT ACT AN ORDER WHICH HAS BEEN PASSED BY THE TRIBUNAL REACHES FINALITY THE MOMENT THE SAME I S PASSED; CANNOT BE TOUCHED THEREAFTER. BY S.254(2) OF THE ACT THE TRIBUNAL HOWEVER HAS BEE N AUTHORISED TO RECTIFY A 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 A RITHMETICAL OR OF LIKE NATURES WHICH CAN BE DETECTED WITHOUT THERE BEING ANY NECESSITY TO REARG UE THE MATTER OR TO REAPPRAISE THE FACT AS APPEARING FROM THE RECORDS. IN ANOTHER CASE CIT VS . GOKUL CHAND AGARWAL (1994) 117 CTR (CAL) 109 : (1993) 202 ITR 14 (CAL) THEIR LORDSHIPS OF CALCUTTA HIGH COURT HAVE ALSO HELD THAT 7 S.254(2) TO THE IT ACT 1961 EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED UNDER S.254(1) TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTU 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 UNDER S. 254(2)WILL BE ILLEGAL AND IMPROPER. AN OVERSIGHT OF THE FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE U NDER S.254(2). THIS MIGHT AT THE WORST LEAD TO PERVERSITY OF THE ORDER FOR WHICH THE REMEDY AVAILA BLE TO THE ASSESSEE IS NOT UNDER S.254(2) BUT APPEAL UNDER S.260A. THE NORMAL RULE IS THAT THE R EMEDY BY WAY OF REVIEW IS A CREATURE OF THE STATUTE AND UNLESS CLOTHED WITH SUCH POWER BY THE S TATUTE NO AUTHORITY CAN EXERCISE THE POWER. REVIEW PROCEEDINGS IMPLY PROCEEDINGS WHERE A PARTY AS OF RIGHT CAN APPLY FOR RECONSIDERATION OF THE MATTER ALREADY DECIDED UPON AFTER A FRESH HEARING ON THE MERITS OR THE CONTROVERSY BETWEEN THE PARTIES. SUCH REMEDY IS CERTAINLY NOT PROVIDED BY THE IT ACT 1961 IN RESPECT OF PROCEEDINGS BEFORE THE TRIBUNAL. 8. THE HONBLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. ITAT (1997) 143 CTR (ALL) 447 : (1997) 93 TAXMAN 123 (ALL) HAS HELD THAT SUB- S.(1) OF S.254 CONFERS AMPLE POWERS ON THE TRIBUNAL TO PASS SUCH ORDERS IN ANY APPEAL FILED BE FORE IT AS IT THINKS FIT. SUB-S.(2) OF S.254 POSTULATES THAT THE TRIBUNAL MAY AMEND ANY ORDER PA SSED BY IT UNDER SUB-S.(1) OF S.254 WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RE CORD. THE POWER OF THE TRIBUNAL CONFERRED BY SUB-S(2) OF S.254 FOR RECTIFYING ANY MISTAKE APPARE NT FROM THE RECORD CANNOT BE EXERCISED BY THE TRIBUNAL TO RECALL ANY ORDER PASSED BY IT UNDER S.2 54(2). FURTHER REVIEWING AND RECALLING AN ORDER IS ONE THING AND RECTIFYING A MISTAKE IN THE ORDER WHICH IS APPARENT FROM THE RECORD IS QUITE ANOTHER. IN THE ABSENCE OF ANY STATUTORY PROVISION FOR REVIEW BY TRIBUNAL THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED OR REVIEWED UNDER S .254(2) OF THE ACT. THE PROVISIONS OF S.254 8 WERE ALSO EXAMINED BY THE HONBLE HIGH COURT ON MAD HYA PRADESH IN THE CASE OF PRAKASH CHAND NAHTA VS. CIT (1996) 135 CTR (MP) 203 : (1996) 220 ITR 277 (MP) IN WHICH THEIR LORDSHIPS HAVE HELD THAT SCOPE OF S.254(2) OF THE IT ACT IS V ERY LIMITED AND IT IS ONLY THE APPARENT ERROR WHICH CAN BE RECTIFIED. 9. THEIR LORDSHIPS OF THE APEX COURT IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROS. (1971) 82 ITR 50 (SC) HAVE HELD THAT A MISTAKE APPA RENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPI NIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEIR L ORDSHIPS HAVE FURTHER HELD THAT IF A STATEMENT OF ANY PERSON HAS BEEN RECORDED WITHOUT PRODUCING H IM IN THE WITNESS BOX THE AUTHORITIES SHOULD NOT ACT UPON THAT STATEMENT WITHOUT AFFORDING THE A SSESSEE 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 N OT 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 ASS ESSEE. THIS IS NOT A MATTER IN WHICH THE APPARENT ERROR IS INVOLVED BUT 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 CYCLE S (P) LTD. (1997) 142 CTR (SC) 122 : (1997) 228 ITR 463 (SC) IN WHICH THEIR LORDSHIPS HAVE HELD THAT RECTIFICATION CAN ONLY BE MADE WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFF ICER PASSING THE ORDER BECOMES APPARENT FROM RECORD. RECTIFICATION IS NOT POSSIBLE IF THE QUEST ION IS DEBATABLE. MOREOVER A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WIT H AS MISTAKE APPARENT FROM RECORD. IN THE 9 CASE OF ITO VS. ITAT (1998) 229 ITR 651 (PAT) THEIR LORDSHIPS OF PATNA HIGH COURT HAVE ALSO EXPRESSED A SIMILAR OBSERVATION AFTER HOLDING THAT S.254(2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-S.(1) WITH A VIEW TO RECTIFYING A MISTAKE FROM RECORD. HOWEVER S.254(2) DOES NOT AUTHORIZE THE TRIBUNAL T O REVIEW ITS ORDER OR TO SIT IN APPEAL OVER ITS EARLIER ORDER. IF IT IS DONE IT WOULD AMOUNT TO A N AMENDMENT OF AN EARLIER ORDER WITH A VIEW TO RECTIFY A MISTAKE APPARENT FROM RECORD BUT IT WOUL D BE AN ORDER PASSED ON RE-APPRAISAL OF THE MATERIAL FACTS AND CIRCUMSTANCES AND ON A FRESH APP LICATION OF THE LEGAL POSITION WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF S.254(2) OF THE ACT . 10. IN THE CASE OF MS. DEEKSHA SURI VS. ITT (1998) 146 CTR (DEL) 576 : (1998) 232 ITR 395 (DEL) THEIR LORDSHIPS OF DELHI HIGH COURT HAVE HELD IN SPECIFIC TERMS THAT THE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT BEEN VESTED WI TH 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 JUDGEM ENTS ARE GENERALLY MATTERS WHICH RENDER THE JUDGEMENT AVOID OR WHICH ARE SPECIFIED IN THE STATU TES AUTHORIZING SUCH SECTIONS. THE LANGUAGE OF S.254(2) OF THE IT ACT 1961 IS CLEAR. THE FOUN DATION FOR THE EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. A MISTAKE APPAR ENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPI NIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. 11. SIMILAR VIEWS HAVE ALSO BEEN EXPRESSED BY THE G AUHATI HIGH COURT IN THE CASE OF CIT VS. PRAHLAD RAI TODI (2001) 171 CTR (GAU) 537 : (2001) 251 ITR 833 (GAU) BY HOLDING THAT A 10 BARE LOOK AT S.254(2) WILL SHOW THAT THIS SECTION G IVES THE POWER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND NOT TO AMEND ANY ORDER PASSED B Y IT AND TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE A.O. OR THE 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 RECTIFIE D OR AMENDED CAN BE MADE TO THE ORDER. THE TRIBUNAL CANNOT IN LAW AND FACTS RECALL AND DESTR OY ITS FINAL ORDER AS A WHOLE WITH A VIEW TO RECTIFY THE SAME ORDER UNDER S.254(2) OF THE ACT. THE ACTION OF THE TRIBUNAL ACTUALLY AMOUNTS TO REVIEW OF ITS EARLIER ORDER AND THAT POWER TO REVIE W IS NOT AVAILABLE TO THE TRIBUNAL. 12. IN VIEW OF THE AFORESAID PROVISIONS OF LAW WITH REGARD TO THE SCOPE OF SECTION 254(2) OF THE ACT WE ARE OF THE CONSIDERED OPINION THAT THER E IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 28.11.2008. THE TRIBUN AL HAS DULY CONSIDERED THE FACTS THAT THE ADDITION MADE DURING THE A.Y. 2003-04 WAS DELETED B Y THE FIRST APPELLATE AUTHORITY. RE- CONSIDERING THE ORDER OF THE TRIBUNAL ON THE BASIS OF THE FACT THAT THE ADDITIONS WERE DELETED DURING THE A.Y. 2003-04 WILL TANTAMOUNT TO REVIEWIN G OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. ACCOR DINGLY WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 13 IN THE RESULT M.A. IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.08.2010) . SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 27 TH AUGUST 2010. 11 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY