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TMI Blog2023 (5) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the Revenue is to review the earlier order/decision of the Tribunal which is not permissible u/s. 254(2) - Further as per Rule 18(6) of the ITAT Rules the so called notice dated 03.09.2019 is not part of the record of the Tribunal while passing the order. Thus the tribunal has not committed any mistake or error, therefore the present M.A. is devoid of merits and the same is liable to be dismissed. Misc. Application filed by the Revenue stands dismissed. - M.A. No. 59/Ahd/2022 (in ITA No. 206/Ahd/2021) - - - Dated:- 3-5-2023 - Smt. Annapurna Gupta, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member For the Assessee : Shri Parimalsingh B Parmar, A. R. For the Revenue : Shri Satish Solanki, Sr. D.R. ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- This present Miscellaneous Application is filed by the Revenue on the ground that the Tribunal quashed the intimation passed u/s. 143(1) passed by CPC, without affording an opportunity to the assessee to make out the adjustment either in writing or in electronic mode as per the 1st proviso to Section 143(1) of the Act. 2. But after passing of this order by the Tribunal, it is noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timation given to the assessee before making adjustment u/s. 143(1)(a) of the Act . Then again in Para 9 of the Tribunal order, as the fundamental principle of audi alterm partem , is not followed by CPC thereby quashed the intimation passed u/s. 143(1)(a) of the Act . Thus the Ld. A.R. summarized during the course of the hearing of the appeal before the Tribunal, the Ld. D.R. was not in a position to controvert the aspect that CPC has not issued notice to the assessee with respect to the proposed adjustment. There was no documentary evidence was furnished by the Ld. D.R. before the Tribunal either prior to or during the course of hearing to the effect that any such notice was ever issued by CPC. 4.1. Even, in the present Misc. Application, the Revenue in Paragraph 3 states that from the record available to this (Department) office, necessary opportunity was given by CPC issuing notice dated 03.09.2019. Therefore the observation of the Tribunal is factually incorrect in quashing the 143(1) proceedings. The Ld. Counsel further submitted the record available with the Revenue does not mean record filed before the Tribunal . Section 254(2) of the Act provides for rectificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Telecom Ltd. reported in [2021] 133 taxman.com 41 (SC), has considered the powers of the Tribunal u/s. 254(2) and held as follows: ..3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is beyond the scope and ambit of the powers under section 254(2) of the Act. While allowing the application under section 254(2) of the Act and recalling its earlier order dated 6-9- 2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. (The powers under section 254(2) of the Act are only to rectify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 section 254(1) is the effective order so far as the appeal is concerned. Any order passed under section 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining unamended is the effective order for all practical purposes. The same continues to be an order under section 254(1). That is the final order in the appeal. An order under section 254(2) does not have existence de hors the order under section 254(1). Recalling of the order is not permissible under section 254(2). Recalling of an order automatically necessitates re-hearing and re-adjudication of the entire subject-matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms or Rule 24 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity is of an adjudicator and not an investigator. The Tribunal under the provisions of the Act has to decide the grounds raised in an appeal filed either by the assessee or by the Department on the basis of the facts and materials available on record or brought to its notice at the time of hearing of appeal. .. 9. What the Department wants by filing this application is a review of the earlier decision of the Tribunal which is not permissible under the provision of section 254(2) of the Act which is very limited in its scope B and ambit and only applies to rectification of mistake apparent on the face of record. With the aforesaid observations, we decline to entertain the misc. application filed by the Revenue. 5.5. The Co-ordinate Bench of Panaji Bench in the case of Sesa Goa Ltd. Vs. ACIT reported in [2015] 55 taxmann.com 28 (Panaji Trib.) wherein it has been held as follows: We noted that Rule 18(6) of the Appellate Tribunal Rules states that documents that are referred to and relied upon by the parties during the course of arguments shall alone be treated as part of the record of the Tribunal. The Revenue has put up an application before us mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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