TMI Blog2007 (9) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... he written submissions of the assessee, an error has crept in the order of the Tribunal and as such it requires rectification. 2. The Ld. Departmental Representative, on the other hand, has invited our attention that the Tribunal has examined the issue in the light of the material placed before it. Since the Tribunal has deliberated the impugned issue in its order in detail, it cannot be reviewed under section 254(2) of the Income-tax Act as the scope of this section is very limited and rectification is permissible only on arithmetical, clerical error and an error which is apparent from the record. 3. Having heard the rival submissions and from careful perusal of the Miscellaneous Application vis-a-vis the order of the Tribunal, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t documents during the course of hearing of the appeal. The duty cast upon him shall not be discharged by filing of the documents before the Tribunal without pointing out its relevancy to the controversy raised in the appeal. Moreover, it is not possible for the Tribunal to examine each and every document filed before it. The Tribunal can examine only those documents which are referred during the course of hearing of the appeal. This is a peculiar case in which the assessee has filed a bundle of documents but none of the documents was referred during the course of hearing. 5. The Tribunal however considered the written submissions filed by the assessee and other material on record and examine the orders of the lower authorities and deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders passed by the authorities under the Act cannot be interfered with on the basis of supposed inherent rights. Under section 254(1) of the Act, the Appellate Tribunal, after hearing the contesting parties, can pass such order as it deems fit. Section 254(2) of the Act specifically empowers the Appellate Tribunal at any time within four years of the date of an order to amend any order passed by it under section 254(1) of the Act with a view to rectify any mistake apparent from record either suo motu or on an application made. What can be rectified under this section is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or inquiry is necessary. Where two opinions are possible, then it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order for which the remedy available to the assessee is not under section 254(2) but a reference proceedings under section 256. The normal rule is that the remedy by way of review is a creature of the statute and unless clothed with such power by the statute, no authority can exercise the power. Review proceedings imply proceedings where a party, as of right, can apply for reconsideration of the matter, already decided upon, after a fresh hearing on the merits or the controversy between the parties. Such remedy is certainly not provided by the Income-tax Act, 1961, in respect of proceedings before the Tribunal. 8. The Hon ble High Court of Allahabad in the case of CIT v. ITAT [1997] 93 Taxman 123 has held that sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atable point of law is not a mistake apparent from record. Their Lordships have further held that if a statement of any person has been recorded without producing him in the witness box, the authorities should not act upon that statement without affording the assessee an opportunity to cross-examine the witness, but that is a matter not for rectification but it is a matter relating to the merits of the case as to whether the Tribunal has gone wrong in not considering the affidavit of a particular person and has acted upon the statement of the same person which was recorded by the ITO without being permitted to cross-examine by the assessee. This is not a matter in which the apparent error is involved but it is a matter more of merit and can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is a creature of the statute. It has 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. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in the statutes authorizing such sections. The language of section 254(2) of the Income-tax Act, 1961 is clear. The foundation for the 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 . A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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