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2018 (9) TMI 2010 - ITAT MUMBAIRectification u/s 254 - non-adjudication of the real dispute under consideration - capital gain computation - JV entered - HELD THAT:- Due to the takeover of "LAND" by a USA- based company, the applicant exercised its option to sell all the shares of the JVCo to the other partner. Section 2(14) defines that 'capital asset' means property of any kind held by an assessee, whether or not connected with his business or profession. How transfer has taken place in the above case. In this context reference has been made to the waiver agreement dated 15.06.2006 between the applicant and LAND. At the time of entering the JVA, the applicant had put 50% financial stake in JVCo and was also actively involved and the business activity of the said JVCo. The right was bestowed, in lieu of, or on the consideration of such financial and managerial and HRD investment by the applicant in JVCo. We have discussed the same at para 7.5.3 of the impugned order. The applicant had acquired this right of first refusal, the date it entered into the JVA. Therefore, the applicant had not acquired this right from any previous owner. All the more, it is an important right which enables the applicant as well as the other JV partner to carry on the business. Therefore, the cost of acquisition of such a right shall be nil as per the provisions of section 55(2)(a) of the Act. Thus, we arrived at a finding that the same is chargeable as short term capital gains because the applicant had exercised its option to sale its rights on 08.05.2006 i.e. within 12 months of the JVA dated 27.05.2005. The applicant has not pointed out any mistake aparent from the record. A mistake apparent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. In fact, not a single error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. The Hon'ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [1970 (3) TMI 163 - SUPREME COURT] that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2).
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