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TMI Blog2013 (1) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... there on the record in the paper book. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of CIT v. Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710 and Kerala High Court decision in the case of Kerala Chemicals & Proteins Ltd. v. CIT [1999] 235 ITR 467, it was pleaded for recalling of the order of the Tribunal and deciding the same afresh. 2. Ld.DR strongly opposed the move of the assessee and pleaded that since each and every aspect of the matter has been considered by this bench of the tribunal while deciding the appeal and by making reference to para.7 of the order dated 29.2.2012, it was pleaded for dismissal of the application of the assessee. It was also pleaded that in case application of the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution by a new order which is not permissible under the provisions of section 254(2). Further, where an error is far from self evident, it ceases to be an apparent error. It is no doubt true that a mistake capable of being rectified under section 254(2) is not confined to clerical or arithmetical mistakes. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by the Supreme Court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. A similar view was also e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie and it is in capable of argument or debate. It is therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. 4. As is apparent from the discussion held in the preceding paragraphs, that a rectification application can lie only with regard to an error on the face of the record which has not emerged from the material on record and moreover, the assessee has not been able to point out any apparent mistake in the order passed by the Tribunal and in case application of the assessee is accepted, it would tantamount to review of the order of the Tribunal, as has rightly been pleaded by the ld. DR, that revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proceedings before the Tribunal." 4.2 In similar situation, while dealing with the rectification, the Hon'ble Andhra Pradesh High Court in the case of CIT v. I.T.A.T [1994] 206 ITR 126 has held as under: "The appellate Tribunal, being a creature of the statute, has to confine itself in the exercise of its jurisdiction to the enabling or empowering terms of the statute. It has no inherent power. Even otherwise, in cases where specific provision delineates the powers of the court or Tribunal, it cannot draw upon its assumed inherent jurisdiction and pass orders as it pleases. The power of rectification which is specifically conferred on the Tribunal has to be exercised in terms of that provision. It cannot be enlarged on any assumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgement specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. Similarly the Bombay High Court in the case of CIT v. Ramesh Electric and Trading Co. (203 ITR 497) .............It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its jurisdiction to allow a Miscellaneous Petition in the name of reviewing its own order". "In the present case, in the guise of rectification, the Tribunal reviewed its earlier order and allowed the Miscellaneous Petition which is not in accordance with law. Section 254(2) of the Act does not contemplate rehearing of the appeal for a fresh disposal and doing so, would obliterate the distinction between the power to rectify mistakes and power to review the order made by the Tribunal. The scope and ambit of the application of Section 254(2) is limited and narrow. It is restricted to rectification of mistakes apparent from the record. Recalling the order obviously would mean passing of a fresh order. Recalling of the order is not permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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