2021 (10) TMI 1015 - AT - Income Tax

Rectification of mistake u/s 254 - issuance and service of notice U/s 148 - HELD THAT - In the present case, there doesn t exist any legal or factual mistake, apparent from record and the assessee has merely sought to rectify the impugned Tribunal s order, on the basis of different view conceived by the assessee, in respect of the issue in question raised in the Miscellaneous Application. It is further added that this issue raised by the Revenue through the impugned Miscellaneous Application is debatable question, not mistake apparent from record and hence, is not amenable to rectification jurisdiction conferred on the Tribunal u/s. 254(2) of the Act. It is a settled legal proposition that in the garb of Miscellaneous Application for rectification, the assessee cannot be allowed to re-open the whole matter, which is beyond the scope of section 254(2) of the Act, in the absence of any manifest error, which is obvious, clear and self evident. Tribunal is not competent to recall its previous order and re-write the same again and reverse the earlier decision taken on merit what can be rectified under the said section is a mistake apparent from record and not the mistake which needs elaborate reason or inquiry to establish the same. There is e difference between a power to review and a power to rectify a mistake apparent from record. In a nut-shell the scope of such power of rectification, in exercise of jurisdiction u/s 254(2) of the Act, clearly contemplates what can be corrected is an apparent mistake from record and not to deal with merits of the case and to recall the order, on the basis of taking a second opinion, on the merit, which is not the scope of such rectification. The scope of section 254(2) is very limited and it is only the apparent error, which can be rectified and the Tribunal can be held to be justified in rejecting the application for rectification raising a matter relating to the merit of the case and not involving an apparent mistake to be rectified - Thus the ground/issue raised by the Revenue in the impugned Miscellaneous Application is dismissed with no order as to costs.

Summary

Issues Involved:
Recalling of Tribunal's order based on alleged error in appreciating notice issuance and service under ITA No. 168/JP/2020.

Detailed Analysis:

1. Recalling Tribunal's Order:
The Revenue filed a Misc. application seeking to recall the Tribunal's order dated 11/09/2020 in ITA No. 168/JP/2020, contending that the notice u/s 148 was issued and served within the prescribed time. The Revenue argued that the Tribunal failed to appreciate this fact. However, the AR for the Assessee argued that the application lacked basis and was an abuse of process, asserting that the Tribunal's order was well-reasoned and cannot be reviewed. The Tribunal noted that the issue of notice issuance and service was extensively discussed in the original order, and after evaluating all arguments and judgments, a detailed finding was recorded. The Tribunal concluded that there was no need to recall the order as it would amount to a review on merits, which is beyond its power.

2. Review vs. Rectification:
The Tribunal highlighted that the right to review is statutory and not inherent, citing precedents that emphasize the limited scope of review powers for Tribunals. The judgment clarified that the power to review is not equivalent to rectification and cannot be used to re-examine the merits of a case. It was emphasized that rectification under Section 254(2) of the Act is limited to correcting apparent errors on record, not revisiting decisions based on differing opinions. The Tribunal underscored that rectification jurisdiction does not extend to re-hearing or rewriting an order, especially when the issue is debatable and not a clear error. The Tribunal dismissed the Revenue's application, stating that the scope of rectification is narrow and does not permit revisiting decisions taken on merits.

3. Dismissal of Misc. Application:
Ultimately, the Tribunal dismissed the Revenue's Misc. application, emphasizing that the power vested in the Tribunal under Section 254(2) is discretionary and does not confer an absolute right on the Revenue. The judgment reiterated that the Tribunal lacks the inherent power to review its decisions on merits and can only rectify mistakes apparent from the record. The Tribunal concluded that the issue raised by the Revenue did not fall under the purview of rectification under Section 254(2) and hence, the application was dismissed with no costs awarded.

In conclusion, the Tribunal's detailed analysis and dismissal of the Revenue's application underscored the limited scope of rectification under Section 254(2) of the Act, emphasizing that such rectification is reserved for correcting clear errors on record and not for revisiting decisions based on differing interpretations or opinions.