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TMI Blog2015 (7) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned issue afresh. The Tribunal has examined the facts and given a categorical finding on this issue. The findings of the Tribunal cannot be reviewed under the garb of rectification. If the assessee is aggrieved with the findings of the Tribunal on a particular issue, the remedy available to the assessee is not under section 254(2) of the Act but lies somewhere else. The ld. counsel for the assessee has tried to dispute the findings of the Tribunal and seeking a review of the order of the Tribunal which is not permissible under section 254(2) of the Act and we accordingly reject this Miscellaneous Application. - Decided against assessee. - M.A. No.29/LKW/2015 [Arising out of ITA No.453/LKW/2012] - - - Dated:- 24-7-2015 - Shri Sunil kumar Yadav and Shri. A. K. Garodia, JJ. For the Petitioner : Shri. Abhinav Mehrotra, Advocate For the Respondent : Shri. Punit Kumar, D.R. ORDER PER SUNIL KUMAR YADAV: This Miscellaneous Application is preferred by the assessee against the order of the Tribunal dated 16.1.2015 in ITA No.453/LKW/2012 contending therein that the decision of the Tribunal is in conflict with the mandate of the Hon'ble jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee could not furnish the same. Similar was the position before the ld. CIT(A), but the ld. CIT(A) has deleted the addition having observed that the assessee was not under any obligation to maintain separate balance sheet and profit and loss account for each and every unit. While adjudicating the issue, the Tribunal has given a categorical finding that the assessee is not under any obligation to prepare separate balance sheet and profit and loss account for each and every unit, but whenever the assessee was asked by the Assessing Officer to furnish the details of a particular expense debited to the profit and loss account, the assessee is under obligation to furnish the complete details. Since the assessee has not furnished complete details before the ld. CIT(A), the deletion of addition was not proper. However, the Tribunal has restored the matter to the ld. CIT(A) for re-adjudicating the impugned issue afresh. The Tribunal has examined the facts and given a categorical finding on this issue. The findings of the Tribunal cannot be reviewed under the garb of rectification. If the assessee is aggrieved with the findings of the Tribunal on a particular issue, the remedy ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent on the record means a mistake either clerical or grammatical or arithmetical or of like nature, which can be detected without there being any necessity to re-argue the matter or to re-appraise the fact as appearing from the records. In another case CIT Vs. Golal Chand Agarwal; 202 ITR 14 their Lordships of Calcutta High Court have also held that section 254(2) of the Income-tax Act, 1961 empowers the Tribunal to amend its order passed u/s 254(1) to rectify any mistake apparent from the record either suo moto or on an application. If in its order there is no mistake which is patent and obvious on the basis of the record, the exercise of the jurisdiction by the Tribunal u/s 254(2) will be illegal and improper. An oversight of the fact cannot constitute an apparent mistake rectifiable under section 254(2). This might, at the worst, lead to perversity of the order for which the remedy available to the assessee is not under section 254(2) but a reference proceedings u/s 256. The normal rule is that the remedy by way of review is a creature of the statute and unless clothed with such power by the statute, no authority can exercise the power. 7. The Hon ble High Court of Alla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a rectification were again examined by the Apex Court in the case of CIT Vs. Hero Cycles Pvt. Ltd.; 228 ITR 463 in which their Lordships have held that rectification can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from record. Rectification is not possible if the question is debatable. Moreover, a point which was not examined on facts or in law cannot be dealt with as mistake apparent from record. In the case of ITO Vs. ITAT; 229 ITR 651 their Lordships of Patna High Court have also expressed a similar observation after holding that section 254(2) of the Act empowers the Tribunal to amend any order passed by it under sub-section (1) with a view to rectifying a mistake from record. However, section 254(2) does not authorize the Tribunal to review its order or to sit in appeal over its earlier order. If it is done, it would amount to an amendment of an earlier order with a view to rectify a mistake apparent from record, but it would be an order passed on reappraisal of the material facts and circumstances and on a fresh application of the legal position which is not permissible within the scope of section 254(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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