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TMI Blog2021 (7) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to its notice by the Assessing Officer or the assessee. So, when we speak of amendment or rectifying the mistake, the earlier order can never be recalled by the Tribunal. The earlier order must hold the field and the mistake can be rectified or amended can be made to the order. The Tribunal cannot, in law and facts, recall and destroy its final order as a whole with a view to rectify the same order under section 254(2) of the Act. The action of the Tribunal actually amounts to review of its earlier order and that power to review is not available to the Tribunal. No merit in this Miscellaneous Application of the Department, as no error apparent in the order of the Tribunal is pointed out. The ld. D.R. has tried to dispute the findings of the Tribunal and is seeking a review of the order of the Tribunal, which is not permissible under section 254(2) - M.A. No.36/LKW/2019 [Arising out of ITA No.172/LKW/2018] - - - Dated:- 1-6-2021 - Shri. A. D. Jain, Vice President For the Applicant : Shri Harish Gidwani, D.R. For the Respondent : Shri Abhinav Mehrotra, Advocate ORDER This Miscellaneous Application is preferred by the Revenue for recalling the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Harsingar Gutkha (P.) Ltd. vs. CIT (supra) is squarely applicable to the facts of the present case and, accordingly, keeping in view the same, the entire proceedings in the present case, culminating in the impugned order, are held to be null and void and are quashed. Nothing further survives for adjudication, nor was anything else argued. 9. In the result, the appeal is allowed. 3. Before me, the ld. D.R. submitted that the Tribunal has wrongly allowed the appeal of the assessee, concluding that as evident from the above notice, it was served not on the assessee, but on one Abdul Wahid, that the Department has not been able to show this notice to have been served on either the assessee, or on his agent, that therefore, the assessee is correct in contending that no notice under section 143(2) of the Act was served on him; and that the entire proceedings were held to be null and void. It was contended that the Tribunal failed to consider the provisions of section 292BB of the Act. 4. The ld. Counsel for the assessee, on the other hand, submitted that the Tribunal has taken a correct view after considering the material available on record and the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of review not having been given to the Tribunal by the statute creating it. 8. The scope of the provisions of section 254(2) is very limited and only those errors which are apparent or arithmetical can only be rectified. The scope of provisions of section 254(2) of the Act has been repeatedly examined by the Hon'ble Apex Court and various High Courts and it was held that the Tribunal can rectify only those mistakes which are arithmetical or clerical or apparent in its order. The Tribunal has no jurisdiction to review its own order in the garb of rectification. It was also held that if the Tribunal commits an error of judgement, that error cannot be rectified under the provisions of section 254(2) of the Act, as the Tribunal is not empowered by the statute to review its own order. 9. In the case of CIT Vs. Vardhman Spinning , 226 ITR 296 (P H), their Lordships of the Hon'ble Punjab and Haryana High Court have held in specific terms that the Appellate Tribunal is a creation of a statute and it can exercise only those powers which have been conferred upon it. The only power conferred on the Tribunal u/s 254(2) of the I.T. Act, 1961 is to rectify any mistake a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference 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. 11. The Hon ble High Court of Allahabad in the case of CIT Vs. ITAT , 143 CTR 446 (Alld) has held that sub-section (1) of section 254 confers ample powers on the Tribunal to pass such orders in any appeal filed before it as it thinks fit. Sub-section (2) of section 254 postulates that the Tribunal may amend any order passed by it under sub-sec. (1) of section 254 with a view to rectifying any mistake apparent from the record. The power of the Tribunal conferred by sub-section (2) of section 254 for rectifying any mistake apparent from the record cannot be exercised by the Tribunal to recall any order passed by it under section 254(2). Further, reviewing and recalling an order is one thing and rectifying a mistake in the order which is apparent from the record is quite another. In the absence of any statutory provision for review by Tribunal, the order passed by the Tribunal cannot be recalled or reviewed under section 254(2) of the Act. 12. The provisions of section 254 were als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Act. 16. In the case of Ms. Deeksha Suri Vs. ITAT , 232 ITR 395(Delhi), their Lordships of the Hon'ble Delhi High Court have held in specific terms that the Income-tax Appellate Tribunal is a creature of the statute. It has not been vested with the review jurisdiction by the statute creating it. The Tribunal does not have any power to review its own judgements or orders. The grounds on which the courts may open or vacate their judgements are generally matters which render the judgement void or which are specified in the statutes authorizing such sections. The language of section 254(2) of the Income-tax Act, 1961 is clear. The foundation for exercising the jurisdiction is with a view to rectify any mistake apparent on the record and the object is achieved by amending any order passed by it . A mistake apparent on the record must be an obvious and patent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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