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TMI Blog2014 (8) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the scope and ambit of section 254(2) of the Act - only when it is found that there was an error apparent on the face of the record, then and then only powers under sec. 254(2) of the Act can be invoked – the Tribunal has tried to consider the issue on merits which was already considered by the Tribunal earlier while deciding the appeal – the Tribunal has materially erred in exercise of powers u/s 254(2) of the Act by passing the order and the Tribunal has gone beyond the scope and ambit of the powers of section 254(2) of the Act – Decided in favour of Revenue. - Income Tax Reference No. 21 of 2000 - - - Dated:- 24-6-2014 - M. R. Shah And K. J. Thaker,JJ. For the Petitioner : Mr. Manish R. Bhatt For the Respondent : Mr. Bandish S. Soparkar ORDER (Per : Honourable Mr. Justice M. R. Shah) 1. The present Reference, at the instance of the Revenue, has been made by the learned Income Tax Appellate Tribunal (Hereinafter referred to as the Tribunal ), referring the following substantial question of law arising out of the order of the learned Tribunal dated 14.9.1998 in M.A. No. 87/Ahd/96, for the opinion of this Court: Whether the Appellate Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elate to his business. The learned Tribunal rejected the contentions of the assessee that the diary belongs to his son Shri Bharatkumar. That on appreciation of evidence and considering the material on record, the learned Tribunal recorded a finding that the diary was recovered from the assess and not from the room of his son, and therefore, the presumption contained under section 132(4) of the Act has been rightly drawn by the AO against the assessee, and consequently, the learned Tribunal restored the order passed by the assessing officer making addition of ₹ 3,33,413/- on the basis of the seized diary. 4. It appears that thereafter, the assessee moved a miscellaneous application being MA No. 34/1995 pointing out that the observations of the learned Tribunal regarding ownership of the diary by the assessee in paras-8 and 9 of its order does not take into consideration the submissions made by the assessee. The learned Tribunal vide its order dated 11.4.1996, dismissed the application by observing that the attempt on the part of the assessee is to get the review of the order of the learned Tribunal, is beyond the scope of Sec. 254(2) of the Act. At this stage, it is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, and therefore, intentionally second review application was preferred in the appeal to circumvent the provisions of sec. 254(2) of the Act. It is further submitted that once the first rectification application was rejected, the second rectification application on the same issue was not maintainable. Mr. Bhatt learned advocate appearing on behalf of the Revenue has heavily relied on the following decisions: 1. [2011] 330 ITR 164 (P H) Commissioner of Income-tax v. Pearl Woolen Mills. 2. [2010] 323 ITR 31 (Mad.) Commissioner of Income-Tax vs. Panchu Arunachalam 3. [2011] 331 ITR 521 (Ker) Commissioner of Income-Tax vs. Aiswarya Trading Co. 7. Mr. Manish Bhatt learned advocate appearing on behalf of the appellant-Revenue has further submitted that even otherwise on merits also, the learned Tribunal has materially erred in allowing the subsequent Misc. Application and in re-calling the earlier order passed by the learned Tribunal in the aforesaid appeal in exercise of powers under sec. 254(2) of the Act. It is submitted that as such while deciding and disposing of the appeals earlier, the learned Tribunal has specifically dealt with and considered the issue with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 132(II) of the Act, and therefore, the learned Tribunal is perfectly justified in entertaining not only the rectification application but reviewing and re-calling its earlier order. However, Mr. Bandish S. Soparkar learned advocate for the assessee is not able to satisfy the court with respect to the maintainability and entertainment of second rectification application on the same ground. He is also not in a position to dispute that as such there cannot be any rectification application in rectification application under section 254(2)of the Act. However, he has submitted that in the facts and circumstances of the case and in view of the fact that a glaring mistake was found by the learned Tribunal in the order passed in an appeal with respect to the appeal under section 132(II) preferred by the assessee, the learned Tribunal is justified in entertaining the second rectification application. 11. Heard the learned advocates appearing for the parties at length. 12. The short question which is posed for the consideration of this court is, whether learned Appellate Tribunal is right in law in entertaining the assessee s miscellaneous application again when once the MA has been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess such power is expressly conferred. Reference may be made to the judgment of the Hon ble Supreme Court in Patel Narshi Thakershi v. Shri Pradyumansinghji Arjunsinghji [1971] 3 SCC 844, wherein it was observed as under: 4..... It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The above view has been reiterated in Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Limited [2005] 13 SCC 777. There is no express power of review conferred on the Tribunal. Even otherwise, the scope of review does not extend to rehearing a case on the merits. (Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [1979] 4 SCC 389, Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury [1995]1 SCC 170). The finality of these order of the Tribunal cannot be disturbed by a different Bench beyond the statutory power available to it. The Tribunal has referred to the principle of inherent power and incidental power and also the principle that act of court cannot prejudice anyone. The scope of the principle actus curiae neminem gravabit, i.e., nobody will be prejudiced by act of court, extends to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch applications seeking for rectification and the same would amount to reviewing of the earlier order, which power does not vest in the Tribunal under section 254 of the Act. Once an application seeking for rectification is disposed of, be it the Revenue or the assessee, if aggrieved,should have the recourse to the provisions of appeal before this Court and either of them cannot invoke the provisions of section 254(2) by filing another application for rectification which, in our view, cannot be entertained under that section. 16. The identical question came to be considered by the Kerala High Court in the case of Commissioner of Income-Tax v. Aiswarya Trading Co. (supra). The Kerala High Court in the aforesaid decision has observed and held that once the rectification application filed by one of the parties is considered and decided by the Tribunal rightly or wrongly, another rectification application on the same issue is not maintainable against the order issued by the Tribunal under section 254(2) of the Income-tax Act, 1961. It is further observed that the second rectification application by either party is maintainable only on issues not decided by the Tribunal in any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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