TMI Blog2009 (2) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... of Appeal No. 1(a): "1. In respect of ground of appeal No. 1( a ) concerning the dispute about the eligibility of income earned from off-shore activities for deduction under section 33AC of the Income-tax Act, the Honourable Tribunal has rendered finding in para 7 of the order confirming that the order of CIT(A) by following the decisions of Supreme Court in the case of Sterling Foods Ltd. (237 ITR 579) and Pandian Chemicals (262 ITR 278). A.The Hon ble Tribunal has not dealt with and given a finding in respect of the submissions regarding factual distinction of the assessee s case where the income was derived from the operation of ships whereas in the case of Sterling Foods ( supra ) the income was derived from export promotion schemes and that in the case of Pandian Chemicals ( supra ) the income was derived from electricity deposits. These submissions were supported by referring to the contract entered into by the assessee and, in particular, by relying upon certain extracts of the contract placed at pages 102, 103, 117 and 121 of the paper book. B.Next, the Hon ble Tribunal has not dealt with and given a finding in respect of the submissions that the deduction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te nature, comprising of income by way of deployment of ships, as well as, by providing offshore marine services. The latter component of the said income does not fall under the judicially interpreted term derived from , hence, the said income was not found eligible, for deduction under section 33AC of the Act. Therefore, contention of the assessee that its submission has not been considered is misplaced one. The impugned decision has been rendered by the Bench, after appreciation of rival submissions, relevant records and findings given by the ld. CIT(A). The adjudication of the issue in question, on merit, in the light of fact-situation of the present case, cannot be construed as suffering from any mistake apparent from records, as contemplated under section 254(2) of the Act, as there doesn t exist any legal or factual mistake which is patent, glaring and obvious, floating on the surface of the record which can be traced just by the glance of naked eye. In view of this, the contention raised by the assessee in the impugned Miscellaneous Application cannot be accepted as the same falls beyond the purview of the provisions of section 254(2) of the Act. 4.2 It is further conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer has not pointed out any specific defect in the working of overall profitability in the appellant s contract with OPO as submitted during the course of the assessment proceedings" and the submission that in view of this finding, the CIT(A) was not justified in relying upon a comparative case for estimating the amount of impugned income. BSecond, the Hon ble Tribunal has not dealt with and given a finding in respect of submissions made in the chart tabulated in writing and filed in the course of the proceedings containing the observations of the Assessing Officer and the statement of facts as filed with the CIT(A)." 5. The issue raised by the assessee, in ground No. 1( b ), reproduced above, has been duly adjudicated, after appreciation of the rival submissions, relevant records and the findings of the ld. CIT(A), as reproduced by the Bench, in its decision under reference. The findings of the ld. CIT(A), have been carefully perused and considered by the Bench and found no infirmity therein. Hence, the impugned order of the Tribunal based on merit of the case, doesn t suffer from any mistake apparent from record, as contemplated under section 254(2) of the Act. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and found that the same don t fall under the purview of section 254(2) of the Act, as the issues in question have been adjudicated on merit, after appreciation of the findings of the ld. CIT(A), which are well reasoned and speaking one, both factually and legally. It is, further, added that the said findings of the ld. CIT(A), have been duly incorporated in the impugned order of the Bench. The issue in question has been dealt with and adjudicated, after appreciation of the legal and factual position of the case and, hence, such decision doesn t suffer from any mistake apparent from record, within the meaning of section 254(2) of the Act. Therefore, the contention of the assessee on this issue is dismissed. 6.2 The assessee has placed reliance on the decision of the Hon ble Supreme Court, in the case of Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466 1 . We have carefully perused and considered the fact-situation and the ratio of the said decision vis-a-vis the fact of the present case and found that the ratio of the said decision is not applicable to the fact-situation of the present case, as in this case no decision of the Co-ordinate Bench was pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon ble Supreme Court relied upon by the assessee are different and distinguishable from the facts of the present case as the issue has been decided on the foundation of the decision of the Jurisdictional High Court. In the instant case no such decision of the Jurisdictional High Court was filed before the Bench. A bare perusal of the decision of the Apex Court reproduced above, clearly shows that it renders support to the impugned decision of the Tribunal and doesn t lend support to the contention raised in the Miscellaneous Application. 6.4 The factual and legal matrix of the present Miscellaneous Application falls under the ratio of the Jurisdictional High Court, in the case of CIT v. Ramesh Electric Trading Co. [1993] 203 ITR 497 1 (Bom.). Therefore, applying the ratio of the Jurisdictional High Court, on the subject-matter of instant Miscellaneous Application, it is evident that the case of the assessee is not covered under section 254(2) of the Act. The relevant and operative part of the decision is reproduced hereunder: "Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, with a view to rectifying any mistake apparent from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easoning on points where there may conceivably be two opinions can be hardly be said to be an error apparent on the fact of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." 6.6 The expression any mistake apparent from record are identical under sections 154 and 254(2) of the Act, hence, the judicial principles laid down by Supreme Court or High Courts are applicable to both the statutory situations contemplated under these sections. The provisions of section 254(2) of the Act have limited application. A glaring and obvious mistake of law or fact can be corrected under this section as held in the case(s) of M.K. Venkatachalam, ITO v. Bombay Dying Mfg. Co. Ltd. [1958] 34 ITR 143 (SC); Central Indian Insurance Co. Ltd. v. ITO [1963] 47 ITR 895 (MP); Kalooram Tirasilal v. ITO [1966] 59 ITR 308 (MP); Rasiklal Kamdar v. CIT [1977] 109 ITR 56 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds. The mistake of fact or law floating on the surface of the record falls within the meaning and ambit of this section. Such a power of rectification under section 254(2) of the Act cannot be understood to review, revise or reconsider the substantial decisions, taken after due consideration of law and facts. To recall or revise the decision is beyond the purview of the provisions of this section, as it would jeopardise the fundamental principle of finality of such order. 6.9 Right to review is a creature of statute as is right of appeal. The Income-tax Act does not confer any power on the appellate authority, to review its own order. A review is not a substitute for an appeal, as held by the Rajasthan High Court in Jaipur Finance Dairy Product (P.) Ltd. v. CIT [1980] 125 ITR 404. The Rajasthan High Court in CIT v. Globe Transport Corpn. [1992] 195 ITR 311 observed that the power of review is not inherent in a Court or Tribunal, it is a creature of the statute; a Court or Tribunal cannot review its own decision unless it is permitted to do so by statute. The Courts or Tribunals of limited jurisdiction created under special statutes have not inherent power of review. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application for rectification, the assessee cannot be allowed to re-open the whole matter, which is beyond the scope of section 254(2) of the Act, in the absence of any manifest error, which is obvious, clear and self evident. Thus, the Tribunal is not competent to recall its previous order and re-write the same again and reverse the earlier decision taken on merit. What can be rectified under the said section, is a mistake apparent from record and not the mistake which needs elaborate reason or enquiry to establish the same. Similarly, where two opinions are possible, such a situation do not fall under the provisions of section 254(2) of the Act, as held by the Hon ble Punjab Haryana High Court in the case of CIT v. Vardhaman Spgs. [1997] 226 ITR 296. Thus, it is clear that the power so conferred does not contemplate a re-hearing which would have the effect of re-writing an order, affecting the merits of the case, as sought by the assessee, in the present case. There is a difference between a power to review and a power to rectify a mistake apparent from record. In a nut-shell the scope of such power of rectification, in exercise of jurisdiction under 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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