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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 ..... e application, has submitted that through letter dated 28.9.2004, Ld.A.R. of the assessee gave date of filing of the return with a request to treat the same as having been filed in response to notice u/s 148 of the Act. This bench has wrongly noted the date of the letter of the assessee as 28.2.2004 instead of 28.9.2004 when assessee has not filed any such letter on 28.2.2004, so initiation is beyond prescribed time, therefore, there is an apparent mistake in the order passed by the Tribunal which gives it cause for rectification. Therefore, it was prayed for recalling the order of the Tribunal for rehearing of the matter and deciding the appeal afresh. 3. Ld.DR strongly opposed the move of the assessee by stating that date of reply of Ld.AR of the assessee has been correctly recorded by this bench as same is mentioned by the Assessing Officer in assessment order at page 1 para.1 of assessment order (at 2nd line from bottom), so there is no mistake in this regard. Otherwise also, it does not effect the reassessment as re-assessment proceedings were initiated by serving notice u/s 148 of the Act, through affixture on 1.10.2003 which is within six years, and moreover reply of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. A similar view was also expressed in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137. It is to be noted that the language used in Order 47, Rule 1 of the Code of Civil Procedure, 1908 is different from the language used in section 254(2) of the Act. Power is given to various authorities to rectify any 'mistake apparent from the record' is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of 'an error apparent on the face of the record'. Mistake is an ordinary word, but in taxation laws, it has a special significance. It is not an arithmetical or clerical error alone that comes within its purview. It comprehends errors which, after a judicious probe into the record from which it is supposed to emanate, are discerned. The word 'mistake' is inherently indefinite in scope, as what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o authority can exercise the power. Review proceedings imply proceedings where a party, as of right, can apply for reconsideration of the matter, already decided upon, after a fresh hearing on the merits o the controversy between the parties. Such remedy is certainly not provided by the Income Tax Act, 1961, in respect of proceedings before the Tribunal." 5.2 In similar situation, while dealing with the rectification, the Hon'ble Andhra Pradesh High Court in the case of CIT and Anor vs. I.T.A.T and Anor (206 ITR 126 has held as under: "The appellate Tribunal, being a creature of the statute, has to confine itself in the exercise of its jurisdiction to the enabling or empowering 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinion. 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 judgments........................" 5.4 We also draw support here from Hon'ble Madras High Court decision in T.C.(A) No. 156 of 2006 dated 21.08.2007 in the case of CIT Vs. Tamil Nadu Small Industries Development Corporation Ltd. wherein the Hon'ble High Court held as under:- "The Tribunal has no power to review its order. When the Tribunal has already decided 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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