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2012 (11) TMI 468 - AT - Income TaxRectification of order - assessee seeking rectification in the order of the Tribunal confirming valid service of notice u/s. 148 - Held that - In this case the Tribunal after considering the entire facts and circumstances of the case held that there is valid service of notice u/s. 148. The order of the Tribunal may not be drafted in a manner as the assessee wanted. Because the order is not in favour of the assessee that cannot be said to be an error having mistake apparent on record. The Tribunal cannot be said to be committed an error as the Tribunal not elaborately given the finding that the order of the Tribunal relied upon by the assessee s counsel is not analysed. The Tribunal after taking due care taken a conscious decision that there is a valid service of notice u/s. 148. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under s. 254(1) is the effective order so far as the appeal is concerned. The words used in s. 254(2) are shall make such amendment, if the mistake is brought to its notice . Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision - The power to rectify a mistake under s. 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be allowed to be done indirectly - no infirmity in the order of the Tribunal and the petition filed by the assessee cannot be said to be falls under the purview of section 254 - against assessee.
Issues Involved:
1. Validity of service of notice under Section 148 of the Income Tax Act. 2. Alleged errors in the Tribunal's order. 3. Tribunal's power to review its own order under Section 254(2) of the Income Tax Act. Detailed Analysis: 1. Validity of Service of Notice under Section 148 of the Income Tax Act: The Tribunal confirmed that there was a valid service of notice under Section 148 of the Income Tax Act to the assessee. The Tribunal's order dated 30th April 2010 stated, "In my view, the facts in the matter under consideration do not lend any support to contention of the assessee's counsel that notice cannot even be deemed to have been received and served as to foist jurisdiction of the ITO to proceed with the matter." The Tribunal further observed that "The irregularity cannot be said to go to the root of the matter but mere irregularity which can always be waived by the parties." 2. Alleged Errors in the Tribunal's Order: The learned AR argued that there was an apparent error in the Tribunal's order. Specifically, the AR pointed out that the Tribunal did not properly consider the decision in the case of Arun Lal v. Asstt. CIT [2010] 124 ITD 85 (Agra) (TM). The AR also highlighted that the Tribunal's observation that the GPA holder received the notice and hired a chartered accountant to represent the case before the ITO was incorrect. The AR further submitted that the Tribunal's observation in para 17, which stated that service on the agent who was personally carrying on the business on behalf of the assessee would be sufficient, was also an error. 3. Tribunal's Power to Review its Own Order under Section 254(2) of the Income Tax Act: The learned DR contended that there was no mistake apparent on record that warranted the recall of the Tribunal's order. The DR relied on the decision in the case of V.T. Somasundaram v. ITO [1999] 70 ITD 398 (Chennai), which held that the Tribunal does not have the inherent power to review its order on merits. The Tribunal can only rectify mistakes apparent from the record under Section 254(2). The Tribunal stated that "statutory authority cannot exercise power of review unless such power is expressly conferred." The Tribunal further emphasized that "the scope and ambit of application of section 254(2) is very limited" and restricted to rectification of mistakes apparent from the record. The Tribunal meticulously mentioned the arguments of the assessee's counsel, the points raised by him, and the relevant case-law relied on. After considering these arguments, the Tribunal concluded that there was a valid service of notice under Section 148 of the Act. The Tribunal found no infirmity in its order and dismissed the petitions filed by the assessees, stating that the petitions did not fall under the purview of Section 254 of the Act. Conclusion: In conclusion, the Tribunal dismissed all the petitions filed by the assessees, upholding the validity of the service of notice under Section 148 of the Income Tax Act and affirming that there was no apparent mistake in the Tribunal's order that warranted a review under Section 254(2). The Tribunal reiterated that it does not have the power to review its own orders on merits and that the scope of Section 254(2) is limited to rectifying mistakes apparent from the record.
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