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2020 (8) TMI 802 - AT - Income TaxRectification of mistake u/s 254 - Tribunal did not consider in its order the claim u/s 11(1) Explanation- 2 of the Act to hold on merits that it is not entitled to the benefit of Section 11(1) of the Act - HELD THAT - In the instant case, the assessee has received ₹ 3,55,45,600/- during the financial year 2010-11 relevant to the impugned assessment year. This is crystal clear from the (i) Deed of Assignment dated 19.01.2011 and the Schedule (ii)Receipt of ₹ 3,55,45,600/- by the assessee through cheque No. 889388 dated 18.01.2011 drawn on UBI, Juhu, Tara Road and (iii) The Basis of Accounting Revenue Recognition followed by the assessee during the present assessment year. In the written submission dated 18.03.2014 filed before the AO, the assessee s main contention was Since there is no definite possibility that receipt will be received the consideration was not taxed in AY 2011-12 . A reading of the said written submission which we have extracted at para 6 of the impugned order, clearly indicates that the appellant has not exercised the option under clause (2) of the Explanation to section 11(1) of the Act. Thus we concluded that the grounds of appeal filed by the assessee can be seen through the lens of deductive inference, in which it is asserted that the conclusion is guaranteed to be true if the premises are true. In the present case, it is the contention of the assessee vide the 2nd ground of appeal that the Ld. CIT(A) failed to note that the amount of ₹ 3,55,45,600/- was not factually received during the year under appeal. This premise is not true as evident from the finding above that the assessee has received ₹ 3,55,45,600/- during the financial year 2010-11 relevant to the impugned assessment year. The inference drawn by the assessee is not a correct one as it is based on wrong premise. In view of the above facts and position of law, we upheld the order of the Ld. CIT(A). We find that the arguments of the assessee during the course of hearing in 2019 (7) TMI 429 - ITAT MUMBAI 6 for the impugned assessment year have been examined at length and then the order has been passed. No fact has been lost sight of. No argument has been lost sight of. Applicant has not pointed out any mistake apparent from the record. 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. See TS BALARAM, INCOME-TAX OFFICER, COMPANY CIRCLE IV, BOMBAY VERSUS VOLKART BROTHERS AND OTHERS 1971 (8) TMI 3 - SUPREME COURT 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. The Hon ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji 1970 (3) TMI 163 - SUPREME COURT 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 as held in CIT v. Globe Transport Corpn. 1991 (1) TMI 23 - RAJASTHAN HIGH COURT - MA dismissed.
Issues Involved:
1. Whether the consideration of ?3,55,45,600/- was received by the assessee during the financial year 2010-11. 2. Whether the assessee exercised the option under Explanation 2 of Section 11(1) of the Income Tax Act, 1961. 3. Whether there was a mistake apparent from the record in the Tribunal's order dated 26.06.2019. Issue-wise Detailed Analysis: 1. Receipt of Consideration: The Tribunal examined whether the assessee received the consideration of ?3,55,45,600/- during the financial year 2010-11. The original deed of assignment dated 19.01.2011, signed by the assessee, the confirming party, and the assignee, was registered on the same date with the Sub-Registrar, Thane-II. The deed explicitly stated that the consideration of ?3,55,45,600/- was paid by the assignee to the assessee, evidenced by a cheque dated 18.01.2011. The Tribunal found that the assessee received the amount during the financial year 2010-11, based on the deed of assignment and the cheque details. 2. Exercise of Option under Explanation 2 of Section 11(1): The Tribunal assessed whether the assessee exercised the option under Explanation 2 of Section 11(1) of the Income Tax Act, 1961. The assessee contended that the amount was not received during the year ended 31.03.2011 and thus should be deemed applied towards charitable purposes in subsequent years. The Tribunal noted that the assessee's submission to the AO, dated 20.03.2014, indicated there was no definite possibility of receipt, and the consideration was not taxed in AY 2011-12. However, the Tribunal concluded that the assessee did not exercise the option under Explanation 2 of Section 11(1), as required by the statute. 3. Mistake Apparent from Record: The Tribunal evaluated whether there was a mistake apparent from the record in its order dated 26.06.2019. The assessee argued that the Tribunal overlooked crucial facts and submissions, particularly paragraph 8 of the assessee's submission, which should be considered as exercising the option under Explanation 2 of Section 11(1). The Tribunal referred to the decision in Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC) and other relevant case laws to determine what constitutes a mistake apparent from the record. The Tribunal concluded that no fact or argument was overlooked, and the order was based on a thorough examination of the submissions and facts. Therefore, the Tribunal held that there was no mistake apparent from the record and dismissed the Miscellaneous Application. Conclusion: The Tribunal upheld its original decision, confirming that the assessee received the consideration during the financial year 2010-11 and did not exercise the option under Explanation 2 of Section 11(1). The Tribunal found no mistake apparent from the record in its previous order and dismissed the Miscellaneous Application filed by the assessee.
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