2013 (12) TMI 948 - AT - Income Tax

Recalling of Tribunal s order - Held that - As per section 254 - If there is a mistake, then an amendment should 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 - Following CIT v. Hindustan Coca Cola Beverages 2006 (10) TMI 125 - DELHI High Court - The power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. Following CIT v. Karam Chand Thapar & Bros. (P.) Ltd. 1989 (2) TMI 5 - SUPREME Court - The decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment - If the court finds that it has taken into account all relevant material 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, the conclusions arrived at by the Tribunal are perverse - Decided against assessee.

Summary

Issues Involved:
Recall of Tribunal order in ITA No.305/Hyd/2011 dated 19/10/2012

Detailed Analysis:

1. Issue of Recall of Tribunal Order:
The assessee filed a Miscellaneous Application seeking the recall of the Tribunal order in ITA No.305/Hyd/2011 dated 19/10/2012. The Department appealed before the Tribunal challenging the deletion of a penalty under section 271D of the Act. The Tribunal reversed the order of the CIT(A) in favor of the Department. The assessee argued that the Tribunal did not consider the documents on record properly and wrongly assumed facts, leading to the reversal of the CIT(A)'s decision. The assessee sought to recall the entire order based on the submission that the Tribunal did not give due consideration to the evidence available, including letters and notices submitted during the penalty proceedings.

2. Scope of Tribunal's Power to Recall Order:
The Tribunal, after hearing both parties, emphasized that it cannot review its own order unless there is an express power of review conferred. The Tribunal highlighted that the power to recall an order is limited to rectifying mistakes apparent from the record under section 254(2) of the IT Act. The Tribunal clarified that recalling an order would necessitate re-adjudication of the entire subject matter of the appeal, which goes beyond rectification of specific mistakes. The Tribunal cited legal precedents to support the restricted scope of the Tribunal's power to recall orders and emphasized that the power to rectify a mistake does not extend to recalling the entire order and passing a fresh decision.

3. Application of Section 254(2) and Precedents:
The Tribunal further elaborated on the application of section 254(2) of the IT Act, highlighting that the power to rectify a mistake is distinct from the power to review or recall an order. The Tribunal emphasized that rectification is not equivalent to a review and cannot result in recalling and reviewing the entire order. Legal principles were cited to clarify that the Tribunal's oversight of a fact or failure to consider an argument does not constitute an error apparent on record justifying the recall of the order. The Tribunal underscored that the Tribunal's decision should be viewed as a whole and not scrutinized sentence by sentence, as long as all relevant material has been considered.

4. Dismissal of the Miscellaneous Application:
Ultimately, the Tribunal dismissed the Miscellaneous Application filed by the assessee, concluding that there was no merit in the argument presented by the assessee's counsel. The Tribunal reiterated that it cannot review its own order, and the remedy for the assessee lies elsewhere. The Tribunal found no mistake apparent on record warranting the rectification of its order, thereby upholding the original decision and dismissing the application.

In summary, the judgment addressed the recall of a Tribunal order, clarified the limited scope of the Tribunal's power to recall orders under section 254(2) of the IT Act, and emphasized the distinction between rectification of mistakes and a review of the entire order. Legal precedents were cited to support the Tribunal's decision to dismiss the Miscellaneous Application filed by the assessee.