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2014 (11) TMI 216 - AT - Income TaxRectification of mistake u/s 254(2) – Whether non-consideration of the clause 3.4 of the cost sharing agreement by the Tribunal amounts to mistake apparent from the record – Held that:- the Tribunal has considered the agreement as a whole and not in piece meal - As far as arriving at the wrong conclusion in concerned, it does not constitute mistake apparent from record - under the provisions of section 254(2) of the Act it is not permissible for the assessee to contend that the appellate order was vitiated on the ground that the Tribunal failed to discuss all the contentions raised by counsel before it and to give reasons for coming to the conclusion which it did - If assessee finds an order defective on this ground, the remedy lay elsewhere, and not by way of a Miscellaneous Application - the Income-tax Appellate Tribunal is a creature of the statute and it is not been vested with the review jurisdiction by the statute creating it - The Tribunal does not have any power to review its own judgments or orders - What assessee desires is review of the order passed on in the garb of rectification application - The language of section 254(2) of the Act is very 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’ - aseessee wants reappraisal of the entire case - It is not possible under the provisions of section 254(2) of the Act – also in Commissioner Of Income-Tax Versus Ramesh Electric And Trading Co. [1992 (11) TMI 32 - BOMBAY High Court] it has been held that the power of rectification u/s. 254(2) of the Act, cannot be exercised on failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion because it is an error of judgment and not an error apparent on the record. The Tribunal had arrived at the conclusion after considering all the facts and circumstances of the case - for reimbursement there was no need to deduct tax at all, but whether in a particular payment there was reimbursement or not was to be proved by the assessee - the assessee had not led the evidence, inspite of the specific query, to prove that the payments did not have profit element - there is no mistake in the order of the Tribunal that could be rectified as per the provisions of section 254(2)of the Act – Decided against assessee.
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