TMI Blog2011 (7) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... t review the same on the basis of fresh arguments advanced by assessee - Petition dismissed. - 191 (HYD.) OF 2010 - - - Dated:- 15-7-2011 - G.C. GUPTA, CHANDRA POOJARI, JJ. K.L. Rathi for the Appellant. Nivedita Biswas for the Respondent. ORDER Chandra Poojari, Accountant Member ‑ This is a second Miscellaneous Application by the assessee through which the assessee seeks rectification/review of the order of this Tribunal dated 23rd July, 2010 in M.A. No. 74/Hyd./2010 arising out of order of in I.T.A. No. 1067/Hyd./2009 dated 26th March, 2010. 2. The learned counsel for the assessee submitted that the Hon'ble Tribunal has dismissed the assessee's petition in M.A. No. 74/Hyd./2010 on the ground that all material facts have been taken into consideration in disposing of the appeal referred above, but question of taking into consideration of material facts as such does not arise as there is no dispute so far material facts are concerned, but the fundamental and vital issue agitated by the assessee is assessee's bone of contention was that if the DIT (E) did not withdraw the registration under section 12AA, question of denying approval for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. To do so would be to ignore the binding nature of a judgment of the Supreme Court under Article 141 of the Constitution of India. To contend that the conclusion reached by the Supreme Court in a case relating to the validity of a levy would apply only to the parties before the court is to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory." 5. The learned counsel for the assessee also relied on the decision of ITAT v. V.K. Agarwal [1999] 235 ITR 175/[1998] 101 Taxman 382 (SC) wherein the head-note reads as follows: "Article 129 of the Constitution provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including". ....." It further held in the same in para 3, which reads as follows: " .... The case of contempt is not strict sensual cause or a matter between the parties, inter se. It is a matter between the court and the contender. Whenev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 12A. Therefore, it is not necessary that having registration under section 12A automatically qualifies or entitles for approval under section 80G. Accordingly, it is not necessary that rejecting the approval under section 80G has to be followed by rejection of registration under section 12AA. 8. We have heard both the parties and perused the material available on record. Admittedly this is the second Miscellaneous Application which cannot be entertained under section 254(2) of the Income-tax Act, 1961. The Tribunal has rejected the first Miscellaneous Application filed under section 254(2) of the Act on the ground that there was no mistake apparent on the face of the record in the order of the Tribunal. It was not open to the Tribunal to entertain the second application which was filed on the same set of facts and to recall its appellate order on the alleged premise that there was an error apparent in the order of the Tribunal. We place reliance on the judgment of Allahabad High Court in the case of CIT v. Chemical Allied Products [2008] 296 ITR 297/[2007] 161 Taxman 16. 9. Further it is well settled that statutory authority cannot exercise power of review unless such po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is indefensible. 11. The words used in section 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake under section 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be allowed to be done indirectly. 12. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163/159 Taxman 127 (Delhi), their Lordships while considering the powers of the Tribunal under section 254(2) of the IT Act, 1961 observed as under: "Under section 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain that the power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. Rectif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also took into consideration the written synopsis filed by the AR for assessee before it. Generally the main purpose of the Tribunal for calling for written synopsis from the parties is that nothing is ignored or any point in issue which was raised during the course of arguments or which could not properly be noted by the Members in the log book while hearing the arguments of the parties, is left unconsidered. It means that it is always the endeavour of the Tribunal that while passing the order it considers all the arguments as well as the written synopsis submitted by the parties. Now reverting to the order passed by the Tribunal dated 26th March, 2010, as well as the order dated 23rd July, 2010 in the earlier Miscellaneous Application No. 74/Hyd./2010 and along with the arguments of the assessee for the present Miscellaneous Application under consideration, we find that the Tribunal has reproduced and considered the case-law submitted by the assessee in its arguments to support the contention. Now the assessee's contention raised in the Miscellaneous Application is that the case-law cited by the assessee in support of its contention has not been considered by the Tribunal while p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urview of the act of 'general public utility' under section 2(15) of the Income-tax Act constituting as a section of public and not a body of individuals? (b) Whether on the facts and circumstances of the case, the Income-tax Appellate Tribunal was justified in law in holding that registration under section 12A was a fait accompli to hold the Assessing Officer back from further probe into the objects of the trust? 20. Going through the above judgment, we find that since the Department had not challenged the decision of the High Court in the case of Hiralal Bhagwati (supra) which attained finality on this point raised by the Department and as such the Supreme Court decided the issue in favour of the assessee. Further, the ratio laid down in this case is that a lower authority cannot raise objections on the issue which a Commissioner has already decided. Because in that case, the CIT(A) has passed orders under section 12A and subsequently an Income-tax Officer has raised objection to the objects of the Trust. Being so, we are not able to appreciate the arguments of the learned counsel for the assessee, how this judgment helps the assessee, more so to be treated as a binding pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re binding upon the Tribunal and if not followed it amounts to contempt of court. As regards to legal position to the binding nature of the decisions of Supreme Court on courts and Tribunal in the country there is no ambiguity to it. But in our considered judicial view the above judgments cited by the learned counsel for the assessee are not applicable to the facts of the present case for the reasons already stated in earlier paras and also in the order of the M.A. dated 23rd July, 2010, filed by the assessee. 23. In the case of Kunhayammed v. State of Kerala [2000] 245 ITR 360/113 Taxman 470 the Supreme Court held that it is well settled principles of law that when an SLP is summarily dismissed under Article 136 of Constitution of India, such dismissal does not lay down any law. Rather it shall be deemed that the Supreme Court simply held that it is not a fit case where SLP should be granted. The same principle will not apply in a case where civil appeal is dismissed by the Supreme Court holding that the appeal has no merit. When civil appeal is dismissed after hearing both the parties by the Supreme Court holding that the appeal has no merit then such order becomes the one whic ..... 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