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TMI Blog2017 (5) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... unal dismissed the ground taken by the assessee observing that the activity carried on by the assessee is a business activity and the provisions of the section 11(4A) of the Act is applicable and the assessee is not entitled for exemption u/s.11 of the Act as running of 'Suguna Auditorium Hall' is a business activity of assessee and not incidental to the main objective of the assessee. 3. Further, it was observed that the judgement of Supreme Court in the case of Thanthi Trust (2000) 247 ITR 785, wherein held that the trust carried on the business of a newspaper and that business itself was held under trust. The charitable object of the trust was the imparting of education which falls u/s.2(15) of the Act. The newspaper business was incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the year ended 31.3.2010 is 6,27,66,984/- and the auditorium receipts, as per separate accounts maintained 78,75,320/- i.e. less than 20 percent of the total receipts and as such it is main provision that education alone is applicable and the proviso is not applicable to the applicant. 3.3 The ld.A.R submitted that Circular No.21 of 2016 dated 27th May, 2016 (Clarification regarding cancellation of registration u/s.12AA of the Act, in certain circumstances) is relevant in considering the applicability of the proviso to sec.2(15) of the Act. 3.4 The AR is further submitted that in Director of Income-tax (Exemptions) Vs. Khar Gymkhana (385 ITR 162 - Bom), the Bombay High Court has in deciding an appeal by the Revenue for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, 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 applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake under s. 254(2) cannot be used for recalling the entire order. 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. 4.3 In the case of CIT vs. Hindustan Coca Cola Beverages (P) Ltd. (2007) 207 CTR (Del) 119; (2007) 293 ITR 163 (Del), their Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake is not equivalent to a power to review or recall the order sought to be rectified. (d) Fourthly, under s. 254(2) an oversight of a fact cannot constitute an apparent mistake rectifiable under the section. (e) Fifthly, failure on the part of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgement. (f) Sixthly, even if on the basis of a wrong conclusion the Tribunal has not allowed a claim of the party it will not be a ground for moving an application under s. 254(2) of the Act. (g) Lastly, in the garb of an application for rectification under s. 254(2) the assessee cannot be permitted to reopen and reargue the whole matter as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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