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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 ..... is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record - 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se depositories i.e. NSDL and CDSL". (c) The issue in the case of Kotak Securities Ltd., was payment of the transaction charges to the BSE for BSE On-line Trading (BOLT) system and not payment of "BENPOS" at flat rates for downloading the data electronically. Hence, the finding that the same issue was subject matter of dispute before the Tribunal, Bombay Bench in the case of Kotak Securities Ltd vs. Addl. CIT (124 TTJ 214) is a mistake apparent from record. (ii) In para-13 the Tribunal recorded the finding "The facts considered by the Bombay High Court on this issue are similar to the facts of the assessee's case before us". The facts recorded by the Assessing Officer and the Commissioner 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 Securitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of section 194J of the Act. He also submitted before us that the issue is not covered by the judgement of Bombay High Court in the case of CIT vs. Kotak Securities Ltd. (340 ITR 333) (Bom). In our opinion, in the present case, while adjudicating the issue, the Tribunal considered the entire facts of the case and observed in paragraph 13 that the assessee has availed managerial services from NSDL/CDSL for which the assessee has paid the fees. Taking support from the judgement of Bombay High Court, it was held by the Tribunal that the assessee is liable to deduct TDS on the impugned payment. 6. 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 vs. Pearl Woollen Mills (330 ITR 164): "Held, that the Tribunal could not readjudicate the matter under section 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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. 9. In the case of CIT vs. Hindustan Coca Cola Beverages (P) Ltd. (2007) 207 CTR (Del) 119; (2007) 293 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 follows: (a) Firstly, the scope and ambit of application of s. 254(2) of IT Act is restricted to rectification of the mistakes apparent from the record. (b) Secondly, that no party appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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