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TMI Blog2013 (1) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... extent to re-hearing of the case on merit as decided in CIT v. Pearl Woolen Mills [2009 (11) TMI 48 - PUNJAB AND HARYANA HIGH COURT] The words used in Section in 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. Thus the argument of the assessee's holds no merit and deserves to be rejected. - IT APPEAL NO. 188 (HYD.) OF 2009, MA NO. 176 (HYD.) OF 2012 - - - Dated:- 16-11-2012 - CHANDRA POOJARI AND SMT. ASHA VIJAYARAGHAVAN, JJ. V. Sridhar for the Appellant. M.H. Naik for the Respondent. ORDER Chandra Poojari, Accountant Member - This Miscellaneous Application (MA) by the assessee is seeking rectification of the order of the Tribunal dated 29th January, 2010 in ITA No. 188/Hyd/2009 for A.Y. 2005-06. 2. In this case the assessee raised the ground that the ratio laid down by the Hon'ble AP High Court in the case of Rajlaxmi Trading Co. v. CIT [2001] 250 ITR 581 is not applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of s. 45(4) of the Act, the assessing officer held that the fair market value of the transferred property has to be taken into account as determined by the District Registrar at Rs. 5,36,100. He thus added the different amount of Rs. 3,18,545, in the hands of the assessee firm as short term capital gains. The said assessment was upheld both by the CIT(A) and Hon'ble ITAT. On further appeal by the assessee the Hon'ble Jurisdictional High Court held that the Tribunal was right in taking the market value as the full value of the consideration received or accruing for the purpose of computing the capital gains and thus upheld the addition made in the assessment. The decision of the Hon'ble jurisdictional High Court as per the head note is as held under: "that the provisions of section 45(4) clearly show that on distribution of capital assets, as a result of dissolution of the firm for the purpose of section 48, the fair market value of the asset on the date of transfer should be taken as the full value of consideration received or accruing as a result of transfer. Therefore, the Tribunal was right in taking the market value as determined by the District Registrar as the full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espectfully prays that the order of the Income Tax Appellate Tribunal in ITA No. 188/Hyd/2009 for Asst. Year 2005-06 may kindly be recalled and an opportunity may kindly be given to the assessee firm to present its case for reconsideration. 5. The DR strongly relied on the order of the Tribunal. 6. We have heard both the parties and perused the material on record. As seen from the arguments of the assessee's counsel, the assessee wants to re-argue the issue before the Tribunal once again which is not permitted u/s. 254(2) of the Act. The Tribunal while adjudicating the issue on earlier occasion considered the entire arguments of the assessee's case and given the finding, incidentally, not in favour of the assessee. As the issue is decided against the assessee, now the assessee finds that there is mistake apparent on record which is actually not so. 7. Further it is well settled that statutory authority cannot exercise power of review unless such power is expressly conferred. There is no express power of review conferred on this Tribunal. Even otherwise, the scope of review does not extent to re-hearing of the case on merit. It is held in the case of CIT v. Pearl Woolen Mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake under s. 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be allowed to be done indirectly. 10. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163, their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as under: "Under s. 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain that the power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. Rectification is a species of the larger concept of review. Although it is possible that the pre-requisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall and review of the order sought to be rectified." 11. Thus the scope and ambi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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