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TMI Blog2012 (10) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2). Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section - dismissal of application of the assessee being devoid of any merits as the assessee has not been able to point out any apparent mistake in the order passed by the Tribunal and in case application of the assessee is accepted, it would tantamount to review of the order of the Tribunal which is not permissible - against assessee. - M.A. No.57/Del./2012 (In ITA No.767/Del./2007) - - - Dated:- 12-10-2012 - SHRI U.B.S. BEDI, AND SHRI T.S. KAPOOR, JJ. Assessee by : Shri K.P. Garg, Revenue by : Smt. Banita Devi, Sr.DR ORDER PER U.B.S. BEDI, J.M. By means of this application, the assessee seeks to get recalled the order of this bench in I.T.A. No.767/Del./2007 relevant to assessment year 1997-98 on the ground that there is mistake in mentioning the date of letter of the assessee as 28.2.2004 whereas correct date is 28.9.2004 which was first letter of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant provisions of law. relating to section 254(2). A bare look at section 254(2) of the Act, which deals with rectification, 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, however, does not cover cases where a revision or review of the order is intended. Mistake means to take or understand wrongly or inaccurately; to make an error in interpreting, it is an error; a fault, a misunderstanding, a misconception. Apparent means visible; capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) is permissible where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. Accordingly, the amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order which is not permissible under the provisions of section 254(2). Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication. 5. As is apparent from the discussion held in the preceding paragraphs, that a rectification application can lie only with regard to an error on the face of the record which has not emerged from the material on record and moreover, the assessee has not been able to point out any apparent mistake in the order passed by the Tribunal and in case application of the assessee is accepted, it would tantamount to review of the order of the Tribunal, as has rightly been pleaded by the ld. DR, that reviewing of the order of the Tribunal is not permissible and for that purpose useful reference can be made to the following decisions. 5.1 The Hon ble Calcutta High Court in the case of CIT vs Gokul Chand Agarwal (202 ITR 14), has held as under: Section 254(2) of the Income Tax Act, 1961, empowers the Tribunal to amend its order passed under section 254(1) to rectify any mistake apparent from the record either suo moto or on an application. The jurisdiction of the Tribunal to amend its order thus depends on whether or not there is a mistake apparent from the record. If, in its order, there is no mistake which is patent and obvious on the basis of the record, the exercise of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACT, 1961, SEC. 254 Further it was held as under: It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgement specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. Similarly the Bombay High Court in the case of CIT-vs- Ramesh Electric and Trading Co. (203 ITR 497) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fresh order. Recalling of the order is not permissible under Section 254(2) of the Act. Only glaring and any mistake apparent on the face of the record alone can be rectified and hence anything debatable cannot be a subject matter of rectification. 5.5 Further, we place reliance upon Hon ble Delhi High Court exposition on the scope of rectification u/s 254(2) as reported in the case of Ras Bihari Bansal Vs. Commissioner of Income Tax (2007) 293 ITR 365:- Section 254 of the Income Tax Act, 1961, enables the concerned authority to rectify any mistake apparent from the record . It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X
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