TMI Blog2017 (5) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejecting the claim of the assessee the Tribunal placed reliance on the judgement of Supreme Court and also Tribunal order. Thus, in view of our detailed discussion and applying the ratio of the decision of the Apex Court, we concluded that the CIT(A) is justified in rejecting the exemption u/s. 11 of the I.T. Act, 1961. From the order of the Tribunal dated 29.06.2016, it is evident that the Tribunal considered the arguments of the assessee’s counsel as well as the ratio of the decisions of the Supreme Court elaborately discussing the same in the order. Hence, it cannot be said that the Tribunal has not considered the case-law cited by the learned AR for the assessee as alleged in the Miscellaneous Application. On the contrary, the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business of a newspaper and that business itself was held under trust. The charitable object of the trust was the imparting of education which falls u/s.2(15) of the Act. The newspaper business was incidental to the attainment of the object of the trust, namely that of imparting education and the profits of the newspaper business are utilized by the trust for achieving the object of imparting education. In this case, there is no such nexus between the activities carried on and the objects of the assessee that can constitute an activity incidental to the attainment of the objects, namely, to promote cause of charity, mission activities, welfare, employment, diffusion of useful knowledge, upliftment and education and to create an awareness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15) of the Act. 3.4 The AR is further submitted that in Director of Income-tax (Exemptions) Vs. Khar Gymkhana (385 ITR 162 Bom), the Bombay High Court has in deciding an appeal by the Revenue for assessment year 2009-10, considered the new proviso introduced by the Finance Act, 2015 (w.e.f. April 1, 2016) changing the cut off bench mark as 20% of the total receipts instead of the fixed limit of 25 lakhs and the CBDT s Circular No.21 of 2016 dated 27th May, 2016 and held that the new proviso would apply in that case (for assessment year 2009-10), when there is no change in the nature of the activities of the assessee during the assessment year in question. 3.5 The AR submitted that in the light of the Supreme Court judgments, CBDT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolving 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. 4.1. 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 Tribunal under s. 254(1) is the effective order so far as the appeal is concerned. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, what it could not do directly could not be allowed to be done indirectly. 4.3 In the case of CIT vs. Hindustan Coca Cola Beverages (P) Ltd. (2007) 207 CTR (Del) 119; (2007) 293 ITR 163 (Del), their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as under: Under s. 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. Rectification is a species of the larger concept of review. Although it is possible that the prerequisite for exercise of either power may be similar (a mistake apparent from the record), by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground for moving an application under s. 254(2) of the Act. (g) Lastly, in the garb of an application for rectification under s. 254(2) the assessee cannot be permitted to reopen and reargue the whole matter as the same is beyond the scope of s. 254(2) of the IT Act. 4.5 .Keeping in mind the above parameters, now we proceed to consider and dispose of the Miscellaneous Application filed by the assessee as under. 5. In this regard, we would like to mention that in the order, the Tribunal first meticulously mentioned the arguments of the learned AR for the assessee, the points raised by him then the relevant case-laws relied upon by the AR of the assessee. Thereafter, the Tribunal considered the same and passed a speaking order for not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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