TMI Blog2014 (1) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon CIT vs. Steal Cast Corporation [1975 (12) TMI 43 - GUJARAT High Court] - in the order of appellate authority, the ground might not have been dealt with that point and thereby it means that it was impliedly rejected - 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 judgement of the Tribunal shows that it has done so, there is no reason to interfere with the decision of the Tribunal – Decided against Assessee. - MA No. 190/Hyd/2012 In MA No. 7/Hyd/2010 - In IT(SS)A No. 104/Hyd/2005 - - - Dated:- 4-7-2013 - Shri Chandra Poojari And Shri Saktijit Dey,JJ. For the Appellant : Sri P. Murali Mohan Rao For the Respondent : Sri Phani Raju ORDER Per Chandra Poojari, AM:- This Miscellaneous Application (MA) by the assessee is seeking rectification in the order of the Tribunal dated 30th January, 2009 in IT(SS)A No. 104/Hyd/2005. 2. This is the second MA by the assessee. Earlier the assessee filed MA in MA No. 7/Hyd/2010 which was dismissed by the Tribunal vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer for further verification as the earlier assessment order dated 30.7.2004 was passed by the Assessing Officer u/s. 144 of the Act. According to the AR, the Tribunal not adjudicated this ground and decided the issue on merit. The AR submitted that if one more opportunity is not given to the assessee, it amounts to violation of principles of natural justice and he prayed to give one more opportunity to the assessee. According to him, the assessee is having all documents and papers to support the case and, he prayed that earlier order of the Tribunal is to be recalled. 4. The learned DR submitted that there is no mistake apparent on record which warrants rectification of earlier order of the Tribunal. The Tribunal considered all the arguments of the assessee's counsel on earlier occasion and given a finding. Further he submitted that even in earlier MA order in MA No. 7/Hyd/2010 dated 17.2.2012 the Tribunal categorically held that the assessment order was passed u/s. 144 of the Act and there is no mistake apparent on record which warrants recall of the order and accordingly dismissed appeal of the assessee. The learned DR relied on CIT vs. Ramesh Electric and Trading Co. (203 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit. It is held in the case of CIT vs. Pearl Woollen Mills (330 ITR 164): "Held, that the Tribunal could not readjudicate the matter under section 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 8. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recall and review of the order sought to be rectified." 11. Thus the scope and ambit of application u/s. 254(2) is as follows: (a) Firstly, the scope and ambit of application of s. 254(2) of IT Act is restricted to rectification of the mistakes apparent from the record. (b) Secondly, that no party appearing before the Tribunal should suffer on account of any mistake committed by the Tribunal and if the prejudice has resulted to the party, which prejudice is attributable to the Tribunal's mistake/error or omission, and which an error is a manifest error, then the Tribunal would be justified in rectifying its mistake. The "rule of precedent" is an important aspect of legal certainty in the rule of law and that principle is not obliterated by s. 254(2) of the Act and non-consideration of precedent by the Tribunal causes a prejudice to the assessee. (c) Thirdly, power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified. (d) Fourthly, under s. 254(2) an oversight of a fact cannot constitute an apparent mistake rectifiable under the section. (e) Fifthly, failure on the part of the Tribunal to consider an argument advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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