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2016 (5) TMI 957 - AT - Income TaxRectification of mistakes - Procedure of Appellate Tribunal - Whether on a proper interpretation of sub-section (4) of section 255 the order proposed by the Learned AM while giving effect to the opinion of the majority consequent to the opinion expressed by the learned Third Member, can be said to be a valid or lawful order passed in accordance with the said provision? Held that:- The presence or absence of the “consent” of the parties will not change the decision rendered by the Special bench on various grounds on the basis of majority view in terms of sec. 255(4) of the Act. Since we are considering the miscellaneous petitions filed by the revenue u/s 254(2) of the Act and since we have noticed that the presence or absence of “consent of parties” does not affect the decision rendered by the Special bench on various grounds in terms of sec. 255(4) of the Act, we are of the view that the order passed by the Special bench cannot be held to be suffering from mistakes, warranting rectification within the meaning and scope of the provisions of sec. 254(2) of the Act. Accordingly, we are of the view that the said observations do not require any modification in terms of sec. 254(2) of the Act, as the appeals have been disposed of by the Special bench strictly in accordance with the provisions of sec. 255(4) of the Act. Hence we are of the view that the order passed by the Special Bench does not require rectification in terms of provisions of sec. 254(2) of the Act nor it curtails the right of the revenue to contest the orders passed by the Tribunal in accordance with the majority view in terms of sec. 255(4) of the Act by filing appeals before the Hon’ble High Court. The revenue contention that it had argued against the constitution of Special Bench and the same was not considered by the Special Bench, the matter relating to the constitution of Special Bench is required to be represented before the Hon’ble President, who had constituted the same and hence, even if the Revenue had argued against the same during the course of hearing before the Special Bench, the said contentions could not have been taken cognizance of by the Special bench. Accordingly, we are of the view that this contention of the revenue also does not give rise to any mistake apparent from record. The power given to the Tribunal u/s 254(2) of the Act is confined to the correction of mistakes apparent from record and the Tribunal is not entitled to review its own order under the garb of rectification of mistakes apparent from record. The above said contentions of the Ld D.R would result in review of the order passed by the Special bench in accordance with the majority view of the members. Accordingly, we decline to entertain the said contentions of the Ld D.R. - Decided against revenue
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