TMI Blog2019 (4) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... ower. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2) of the Act - M.A. No. 131/Mum/2018, (ITA No. 1403/MUM/2015) - - - Dated:- 23-10-2018 - Shri Mahavir Singh (Judicial Member) And Shri N.K. Pradhan (Accountant Member) For the Assessee : Mr. K. Gopal, AR For the Revenue : Mr. V. Jenardhanan, DR ORDER PER N.K. PRADHAN, AM By means of this Miscellaneous Application (MA), the applicant seeks recall of the order dated 30.11.2017 passed by the ITAT A Bench Mumbai (ITA No. 1403/Mum/2015) for the assessment year (AY) 2008-09. In Part-I, here-in-below, we mention the contentions of the Ld. counsel of the applicant, in Part-II, the submissions of the Ld. DR and in Part-III, the reasons for our decision. I 2. The contentions of the Ld. counsel follow the written submission filed by the applicant before the Tribunal, which was received on 20.02.2018. Therefore, we refer below the said written submission. It is stated that the said appeal filed by the assessee has been dismissed on the legal grounds as well as on merits wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated that in the order dated 30.11.2017, the Bench has proceeded to decide the case on merits without giving an opportunity to the applicant to make its submission. Thus it is stated by the applicant that the action of the Tribunal in deciding the appeal on merits without giving an opportunity to the applicant to make its submission on the same is nothing but the mistake apparent from record and the same may be rectified. Finally, the applicant submits that the Tribunal may (a) set aside the order dated 30.11.2017 passed in the appeal numbered as ITA No. 1403/Mum/2015 for the AY 2008-09 and fix for hearing as per the provisions of section 254(1) of the Act, (b) decide the appeal after providing an opportunity to the applicant to argue the case on merits, (c) any other relief which the Bench deems fit. II 3. On the other hand, the Ld. DR submits that there is no mistake apparent from record in the impugned order passed by the Tribunal and therefore, the same cannot be rectified u/s 254(2) of the Act. III 4. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decision are given below. We first deal with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach. This is more so, as an Assessee would respond to the ground on which the penalty has been initiated/notice issued. It must, therefore, follow that the order imposing penalty has to be made only on the ground of which the penalty proceedings has been initiated, and it cannot be on a fresh ground of which the assessee has no notice. In view of the above decisions, the additional ground raised by the assessee was dismissed by us. 4.1 Then we come to the other grievance for the applicant that the appeal was decided by the Bench on merits without giving an opportunity to the applicant to make its submission and the Tribunal, while deciding the appeal has considered certain case laws which were never brought to its notice during the course of hearing. We mention here that during the course of hearing on 27.09.2017, the Ld. counsel of the assessee had also argued on merits of the case and referred to page 5 and 18 of the Paper Book (P/B) filed by him. Page 5 of P/B refers to the reply submitted by the assessee before the AO containing inter alia (i) Copy of resolution passed by Board of Directors of TIL. (PAN No. AAACL3305J), (ii) Share application money letter and App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent on the record must be an obvious mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. This view is supported by the decision of the Hon ble Supreme Court in T.S. Balaram, ITO v. Volkart Bros., (1971) 82 ITR 50 (SC), Master Construction Co. P. Ltd. v. State of Orissa, AIR 1966 SC 1047, Karam Chand Thapar Bros. (Coal Sales) Ltd. v. State of U.P. (1976) Tax LR 1921, 1927 (SC) and CCE v. ASCU Ltd., (2003) 9 SCC 230, 232. In fact, not a single error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. The Hon ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [AIR 1970 SC 1273] that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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