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TMI Blog2013 (11) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... ing errors had crept in the afore cited order of the Tribunal: (i) In para-12 the Tribunal recorded the finding "The same issue was a subject matter of dispute before this Tribunal, Bombay Bench in the case of Kotak Securities Ltd. vs. Addl. CIT (124 TTJ 214) which was decided in favour of the assessee" contrary to the following facts on record: (a) Finding of the Assessing Officer in his order dated 31-12-2010 passed under section 143(3) of the Income-tax Act, 1961 in para 4.2 of his order which reads as under: "As the payment to NSDL/CDSL is in the nature of professional services, the provisions of sec. 194J are attracted and tax was deductible at source under Chapter XVIIB of the IT Act." (b) Finding of the Commissioner of income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income Tax (Appeals) in the assessee's case is payment of "BENPOS", at flat rates of Rs. 5,000/- or Rs. 10,000/- depending upon the number of records by providing access to their database for downloading the data electronically; whereas the payment covered in the Bombay High Court judgment is payment of transaction charges to the Stock Exchanges. Prima facie as the nature of the payments are totally different, the above finding is a mistake apparent from record. (iii) National Securities Depository Ltd. (NSDL) raised the Invoice for the "BENPOS" in the names of the respective companies directly and the assessee paid the fees on behalf of the various clients under their instructions as a Trustee/Agent. Copies of the invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee so as to say whether the expenditure incurred by the assessee falls under the category of professional services or not so as to attract the provisions of section 194J of the Act. 4. On the other hand, the learned DR submitted that consideration of present arguments of the assessee's counsel amounts to review of earlier order of the Tribunal which is not permissible u/s. 254(2) of the Act. 5. We have heard both the parties at length. The learned AR tried to explain that the payment made by the assessee is not towards professional charges. According to him, it was paid only towards data access charges so that it would not attract the provisions of section 194J of the Act. He also submitted before us that the issue is not covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more so when an application for the same relief had been earlier dismissed." 7. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under s. 254(1) is the effective order so far as the appeal is concerned. Any order passed under s. 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining un-amended is the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 163 (Del), 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." 10. Thus the scope and ambit of application u/s. 254(2) is as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reargue the whole matter as the same is beyond the scope of s. 254(2) of the IT Act. 11. Keeping in mind the above parameters, now we proceed to consider and dispose of the Miscellaneous Application filed by the assessee as under. 12. In the instant case, the Tribunal while deciding the appeal of the assessee vide order dated 28th March, 2013 not only considered the elaborate arguments advanced by the Authorised Representatives of both the parties but also took into consideration the written synopsis filed by the AR for assessee before it. Generally the main purpose of the Tribunal for calling for written synopsis from the parties is that nothing is ignored or any point in issue which was raised during the course of arguments or whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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