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TMI Blog2010 (10) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... passed earlier and support can be taken from the decision of the Hon'ble Calcutta High Court in the case of CIT v. Gokul Chand Agarwal (1992 -TMI - 20893 - CALCUTTA High Court) - ITA NO. 683/MDS/2008 & M.A. NO. 321/MDS/2009 - - - Dated:- 1-10-2010 - ABRAHAM P. GEORGE ACCOUNTANT MEMBER J, U.B.S. BEDI JUDICIAL MEMBER J, Assessee by : Shri N. Devanathan Revenue by : Shri B. Srinivas ORDER Per U.B.S. Bedi. Judicial Member By means of present application, the assessee seeks to get recalled the order of the Tribunal dated 22.07.2009 passed in I.T.A. No. 683/Mds/2008 for the assessment year 2000-01. 2 The assessee has contended in the application that the order of the Tribunal is contrary to the law, facts and the circumstances of the case and raised the following pleas: ( a ) The Tribunal erred in confirming the reopening of the assessment without appreciating the fact that notice u/s 143(2) was not served on the appellant after filing of the return in response to notice u/s 148. ( b ) The Tribunal erred in holding that the appellant has waived its right to notice u/s 143(2). ( c ) The Tribunal ought to have appreciated that there cannot be a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, to grounds of the appeal of the Revenue, he said that the issue is not coming either from the grounds of appeal or from the order of the Tribunal, therefore, under these circumstances, no rectification as sought for is possible and moreover, the assessee has otherwise not pointed out any mistake in the order of the Tribunal, which could be rectified. And the assessee, in this case, is just trying to rack up the issue which was neither raised nor is part of the order and in rectificatory proceedings, such type of arguments can neither be entertained nor considered, it was thus pleaded for dismissal of the application of the assessee. 4. We have heard both the sides and gone through the application of the assessee and relevant provisions of law as well as case law cited. Before adverting to the facts of the present case, it would be relevant first to discuss the provisions relating to section 254(2). A bare look at section 254(2) of the Act makes it amply clear that a 'mistake apparent from the record' is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record. The power to rectify the mistake, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under section 254(2) it is not sufficient if there is merely a mistake in the orders sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on the debatable point of law or undisputed question of fact is not a mistake apparent from the record. The plain meaning of the word 'apparent' is that it must be something which appears to be so ex facie and it is in capable of argument or debate. It is therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. 5. Now, coming to the facts of the case, we find that the assessee, in this case, seeks to get recalled the order of the Tribunal for fresh hearing by, challenge about non-service of notice u/s 143(2) in appeal against deletion of penalty [imposed by the A.O u/s 271(1)( c )] filed by the Department, which is neither mentioned in the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowering terms of the statute. It has no inherent power. Even otherwise, in cases where specific provision delineates the powers of the court or Tribunal, it cannot draw upon its assumed inherent jurisdiction and pass orders as it pleases. The power of rectification which is specifically conferred on the Tribunal has to be exercised in terms of that provision. It cannot be enlarged on any assumption that the Tribunal has got an inherent power of rectification or review or revision. It is axiomatic that such power of review or revision has to be specifically conferred, it cannot be inferred. Unless there is a mistake apparent from the record in the sense of patent, obvious and clear error or mistake, the Tribunal cannot recall its previous order. If the error or mistake is one which could be established only by long drawn arguments or by a process of investigation and research, it is not a mistake apparent from the record." 5.2 Further, the Hon'ble Supreme Court in the case of CIT v. Karam Chand Thapar and Br. P. Ltd. (176 ITR 535) has held as under: "APPELLATE TRIBUNAL - DUTY TO CONSIDER CUMULATIVE EFFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS - NO NEED TO STATE SO IN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided an issue by applying its mind against the assessee, the same cannot be rectified under Section 254 ( 2 ) of the Act. There was no necessity whatsoever on the part of the Tribunal to review its own order. Even after the examination of the judgments of the Tribunal, we could not find a single reason in the whole order as to how the Tribunal is justified and for what reasons. There is no apparent error on the face of the record and thereby the Tribunal sat as an appellate authority over its own order. It is completely impermissible and the Tribunal has travelled out of its jurisdiction to allow a Miscellaneous Petition in the name of reviewing its own order". "In the present case, in the guise of rectification, the Tribunal reviewed its earlier order and allowed the Miscellaneous Petition which is not in accordance with law. Section 254 ( 2 ) of the Act does not contemplate rehearing of the appeal for a fresh disposal and doing so, would obliterate the distinction between the power to rectify mistakes and power to review the order made by the Tribunal. The scope and ambit of the application of Section 254 ( 2 ) is limited and narrow. It is restricted to rectification of m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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