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TMI Blog2024 (9) TMI 1618X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Order in first MA the grounds once again raised in the present M.A is not maintainable. As relying on Smt. Vasantben H. Sheth [ 2014 (8) TMI 487 - GUJARAT HIGH COURT] we cannot entertain the second Misc. Application again on the same Grounds when once the First Misc. Application has been considered rejected by us. We reiterate that the AO shall pass the consequential Order in compliance with Order of the Tribunal in the case of Manikandan Vazhukkapara Kumaran [ 2023 (11) TMI 1294 - ITAT BANGALORE] . - Shri Chandra Poojari, Accountant Member And Shri Keshav Dubey, Judicial Member For the Applicant : Smt. Sheetal, Advocate For the Respondent : Shri V. Parithivel, JCIT-DR ORDER PER: KESHAV DUBEY, J.M. This Second Miscellaneous Application (MA) u/s. 254(2) of the Income Tax Act, 1961 (the Act) is filed by the assessee again seeking rectification of the order of the Tribunal dated 27.06.2024 in ITA No. 276/Bang/2024 for Assessment Year (AY) 2019-20 as follows: - The order of the Hon'ble Tribunal dated 27.06.2024 in the above appeal was received by the Petitioner's counsel on 27.06.2024 hence the miscellaneous petition is on time. A copy of the order of the Tribunal is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Tribunal in ITA No.276/Bang/2024 which relied upon the case of Manikandan Vazhukkapara Kumaran in ITA No. 577/Bang/2023 dated 29.11.2023, certain payments of epf esi are still to be allowed as paid within the due dates as stipulated in the respective Acts. As such the issue may be remanded for the limited purpose of verifying the challans submitted at the time of hearing of the appeal on 17.04.2024 so as to render substantial justice. 3. The learned D.R., on the other hand, submitted that the second Misc. Application on same grounds is not maintainable and hence to be dismissed in limine. Further the learned D.R. vehemently submitted that as the grounds of the Misc. Application filed by the Assessee are same as that of first Misc. Application, the Tribunal has no jurisdiction to entertain the same again once the Tribunal has already disposed off the miscellaneous application in MA No. 31/Bang/2024 dated 30.07.2024 after application of mind. 4. We have heard the rival contentions and perused the material on record. Admittedly the assessee has filed the first miscellaneous application in MA No. 31/Bang/2024 which was disposed off by the Tribunal vide order dated 30.07.2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 34/Ahd/1995 for rectification of the alleged mistake in the order of the Tribunal, more particularly, the observations made in para-8 and 9 about the seized material i.e. diary by submitting that certain material facts could not be considered. It is not in dispute that the said rectification application came to be rejected by the learned Tribunal vide order dated 11-4-1996 by observing that the attempt on the part of the assessee is to get the review of the order of the Tribunal which is beyond the scope of section 254(2) of the Act. At this juncture, it is required to be noted that such rectification application (first rectification application) was decided by the same members, who have, earlier decided and disposed of the appeal. It appears that, thereafter, assessee preferred second rectification application for rectification of the order passed by the learned Tribunal on the same ground on which the earlier rectification application preferred which was rejected by the learned Tribunal, and by impugned order, not only the Tribunal has entertained the second rectification application on the same ground on which the earlier first application was made but has also allowed the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that the said power was neither akin to power of review nor could clothe the court to modify judgment on the merits. The scope of power of rectification has been repeatedly considered, inter alia, in T.S Balaram ITO v. Volkart Bros. (1971) 82 ITR 50 (SC), Deva Metal (2007) 10 VST 751; (2008)2 SCC 439 Asstt. CIT v. Saurashtra Kutch Stock Exchange Ltd.(2008) 305 ITR 227 (SC) and such power is limited to correcting an error apparent on the face of record and not to an error to be discovered by long drawn process of reasoning. Thus, neither by invoking the inherent power nor the principle of mistake of court not prejudicing a litigant nor by invoking the doctrine of incidental power, the Tribunal could reverse a decision on the merits. Power available to a court of record, ex debito justitiae, or power to be invoked where an order may be nullity, on account of having been passed without service on a party, stand on a different footing. 15. In the case of Panchu Arunachalam (supra), the Madras High Court has held that once the powers for rectification of the earlier order is invoked/exercised and an order is passed and such order merges with the earlier order of the Tribunal on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not maintainable at all. Under the circumstances, the learned Tribunal has materially erred in entertaining the second rectification application and passing the impugned order of re-calling its earlier order in exercise of powers under section 254(2) of the Act. Once the second rectification application on the same issue was not maintainable, the learned Tribunal erred in entertaining the application and allowing the same. 18. Once it is held that the second rectification application on the same issue was not maintainable, and therefore, was not required to be entertained, thereafter, a further question, whether in the facts and circumstances of the case, the Tribunal is justified in allowing the second rectification application on merits and re-calling the order passed in an appeal is as such not required to be considered. However, when the submissions have been made, we are considering whether even on merits the Tribunal was justified in re-calling the order passed in appeal on merits or not. Considering the impugned order passed by the Tribunal, we are of the view that while passing the impugned order, the Tribunal has gone beyond the scope and ambit of section 254(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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