9911796707
TMI Blog2014 (1) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT vs. Pearl Woollen Mills [2009 (11) TMI 48 - PUNJAB AND HARYANA HIGH COURT] it has been held that Statutory authority cannot exercise power of review unless such power is expressly conferred - There is no express power of review conferred on the Tribunal - the scope of review does not extent to re- hearing of the case on merit - The scope and ambit of application of section 254(2) is very limited – Decided against Assessee. - M.A No.147/Hyd/2013, M.A.No.124/Hyd/2012, ITA No. 01/Hyd/2012 - - - Dated:- 4-7-2013 - Shri Chandra Poojari And Smt. Asha Vijayaraghavan,JJ. For the Applicant : Shri K. L. Rathi (A.R.) For the Respondent : Smt. Amisha S. Gupt (D.R.) ORDER Per Smt. Asha Vijayaraghavan, J. M. Facts of the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e's own case for the earlier year. For that year the ITAT has estimated the profits of the Assessee @ 9% on own contract works, 8% on contracts taken by assessee on subcontracts and @ 5% on contracts given by the assessee to 3rd party on subcontracts. This estimate according to ITAT is before allowing remuneration, interest on capital and depreciation and hence ITAT directed that these amounts should be reduced out of the estimated income. The reliance of the revenue on other cases where the estimated income includes deduction of remuneration, interest on capital and depreciation does not really help the revenue's case. Estimate of income may vary from case to case. The estimate may be gross profits after which other expenditure may be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer is not able to give effect to the Order of the Tribunal. Therefore, the applicant very humbly begs the Hon'ble Tribunal to amend the order in M.A. referred above and prays for direction to incorporate the specific percentage of profit on contract turnover, which has been stipulated at 5%. 4. We have gone through the miscellaneous application and the submissions of both the parties. We have given specific finding at para 8 that the issue has already been decided by the Hyderabad Bench of the Tribunal in the case of Teja Construction in ITA.No.1191/Hyd/2011 dated 7.2.2012 and directed the Assessing Officer to estimate the income of the assessee following the decision of Teja Constructions i.e., directing the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 6. 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be allowed to be done indirectly. 8. 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 f or exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
