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2019 (4) TMI 1014 - AT - Income TaxRectification u/s 254 - mistake apparent from the record - Penalty u/s 271(1)(c) was upheld - rectification of order of Tribunal reported in 2017 (11) TMI 1762 - ITAT MUMBAI - HELD THAT - A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. This view is supported by the decision of the Hon ble Supreme Court in T.S. Balaram, ITO v. Volkart Bros. 1971 (8) TMI 3 - SUPREME COURT In fact, not a single error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. Hon ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji 1970 (3) TMI 163 - SUPREME COURT OF INDIA that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2) of the Act
Issues:
1. Applicant seeks recall of the order dated 30.11.2017 passed by ITAT 'A' Bench Mumbai for AY 2008-09. 2. Applicant contends that the appeal was dismissed without opportunity to present arguments on merits. 3. Applicant raises additional ground challenging penalty proceedings under section 271(1)(c) of the Act. 4. Applicant argues that penalty order was based on inaccurate particulars of income and concealment of income. 5. Applicant relies on the decision of the Hon'ble Bombay High Court in a specific case. 6. Ld. DR argues against any mistake apparent in the impugned order. 7. Tribunal examines the contentions and submissions from both parties. Analysis: 1. The applicant sought recall of the order due to dismissal without presenting arguments on merits. The applicant contended that the Tribunal considered case laws not previously brought to their attention during the hearing. The applicant raised an additional ground regarding the ambiguity in the notice issued under section 274 r.w.s. 271 of the Act. The Tribunal clarified that the penalty was imposed for furnishing inaccurate particulars of income, not concealment of income, contrary to the applicant's claim. 2. The applicant argued that the penalty order was based on inaccurate particulars of income as well as concealment of income. The Tribunal referenced the judgment in a specific case to dismiss the additional ground raised by the applicant. The Tribunal highlighted that the appeal was decided on merits, and the applicant was given an opportunity to present arguments during the hearing. 3. The Ld. DR contended that there was no mistake apparent in the impugned order. The Tribunal examined the submissions and materials on record. The Tribunal clarified the penalty imposition and referred to relevant legal decisions to support its findings. The Tribunal emphasized that a review of the order was not warranted as no obvious mistake was identified. 4. The Tribunal referenced the decision in Mak Data Pvt. Ltd. and the judgment of the Hon'ble Bombay High Court in a specific case to support its conclusions. The Tribunal noted that the applicant did not point out any mistake apparent from the record. The Tribunal highlighted that a decision on a debatable point of law does not constitute a mistake apparent from the record. 5. The Tribunal dismissed the Miscellaneous Application, stating it lacked merit based on the factual scenario and legal position outlined. The Tribunal emphasized that it does not have the power to review its own orders unless permitted by statute. The Tribunal cited various legal precedents to support its decision and concluded the judgment on 23/10/2018.
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