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TMI Blog2009 (6) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. In the course of search operations, it was detected by the Department that assessee imported crockery and decoration pieces in the names of dummy parties and sold such imported items to parties on high sea sale basis and, thus, evaded both the sales tax and income-tax. The ld. CIT(A), deleted the said additions on the basis of the findings of adjudication order passed by the Commissioner of Customs and submission made by the assessee, ignoring the material and evidences brought on record by the Assessing Officer. The Bench after having regard to the rival submissions and relevant record, adjudicated the issue against the assessee and restored the findings of the Assessing Officer, on the foundation of evidences brought on record. Thus, the issue was decided by the Bench in favour of the revenue on merit. 3. In the impugned Miscellaneous Application the assessee referred to the findings of the order of the Bench and the same are reproduced here-under: "5. In Para 2 of the order passed by Hon ble ITAT it is stated that : In the course of search operation it was detected by the investigation wing of the Income-tax Department that the assessee imported crocke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been adjudicated in IT(SS)A No. 560/M/03 vide order dated 29-9-2008. The Bench found, on appreciation of the evidences brought on record by the Assessing Officer that the addition made by the Assessing Officer cannot be assailed, on merit. It was observed by the Bench that the ld. CIT(A), completely ignored the relevant evidences, statement and decided the issues without bringing on record reliable and relevant evidences. The assessee, in the statement recorded under section 132(4) has categorically stated that he had no evidence, to explain the cash found at his residence. The assessee categorically stated in the said statement that the cash is from the cash sales, which are not reflected in the regular books of account of any of the family concerns. The Assessing Officer has incorporated the extract of the said statement in the assessment order. Thus, the decision of the Bench, on the issue raised by the assessee, in Ground No. 1 of his appeal has been adjudicated, on appreciation of the evidences and material on record, brought by the Assessing Officer as well as on considering the decision of the ld. CIT(A), including rival submissions. In view of this, the findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ample supports from a plethora of decisions, rendered by the Hon ble Apex Court and various High Courts as discussed hereinafter. 9. The factual and legal matrix of the present Miscellaneous Applications falls under the ratio of the jurisdictional High Court, in the case of CIT v. Ramesh Electric Trading Co. [1993] 203 ITR 497 2 (Bom.). Therefore, applying the ratio of the jurisdictional High Court, on the subject-matter of instant Miscellaneous Applications, it is evident that the case of both the assessees namely Shri Adarshveer P. Jain and Shri Savantarvijay P. Jain are not covered under section 254(2) of the Act. The relevant and operative part of the decision is reproduced hereunder : "Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, with a view to rectifying any mistake apparent from the record , amend any order passed by it under sub-section (1) within the time prescribed therein, it is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here there may conceivably be two opinions can be hardly be said to be an error apparent on the fact of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self- evident and it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." 9.3 In view of this, the issues raised by these assessees in these Miscellaneous Applications are beyond the scope of section 254(2) of the Act as the issues have been decided on merit. 9.4 The expression "any mistake apparent from record" are identical under sections 154 and 254 (2) of the Act, hence, the judicial principles laid down by Supreme Court or High Courts are applicable to both the statutory situations contemplated under these sections. The provisions of section 254(2) of the Act have limited application. The Income-tax Authorities or the Tribunal cannot, reconsider, review or revise their order as held in the case of CIT v. O.RM.M.SM.SV Sevugan [1948] 16 ITR 59 (Mad.), V.S. Arulandam v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be rectified under section 254(2) of the Act, as held by the Hon ble jurisdictional High Court in the case of Ramesh Electric Trading Co. ( supra ). In these two miscellaneous applications there does not 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, and the ld. CIT(A) in respect of the grounds of the said Miscellaneous Applications. It is further added that these grounds of the impugned Miscellaneous Applications are debatable issues and not the mistake apparent from record and, hence, are not amenable to rectification jurisdiction conferred on the Tribunal under section 254(2) of the Act. It is a settled legal proposition that in the garb of Miscellaneous Applications 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. Thus, the 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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