TMI Blog2013 (8) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998-99 in the computation of the appellant's tax liability for the current assessment year is erroneous in so far as it is prejudicial to the interests of the revenue. During the course of hearing before ITAT the appellant pointed out that the view taken by Assessing Officer in this behalf is in accordance with CBDT Circular and Gujarat High Court judgment dated 23rd August 2012 in Special Civil Application No.1773 of 2012 in the case of General Motors India (P) Ltd. v. DCIT. Hence the view taken by Id. Assessing Officer is correct view The appellant further urged before hon'ble Tribunal that the Circular and judgment of hon'ble Gujarat High Court established beyond doubt that the view taken by Id. Assessing Officer in this behalf is at least one of the possible views that can be lawfully taken by the Assessing Officer. Though the decision of ITAT Special Bench in the case of Mj s.Times Guarantee Limited 131 TTJ (Mum) (SB) 257 was against the assessee, the fact that a Special Bench was constituted proves that there was more than one view possible. The appellant submitted that if Assessing Officer takes one of the two possible views in favour of the assessee and not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect has not been given shall be added to the amount of the allowance for depreciation for the following previous year and so on for the succeeding previous years. From these provisions it would be seen that unabsorbed depreciation allowance is entirely the matter of existing record of the assessee in relation to past assessment years and thereafter whenever an assessment is completed set off of unabsorbed depreciation is a matter of reference to the record already existing with the Assessing Officer. For assessment year 2007-08, under consideration, the appellant furnished complete particulars of the unabsorbed depreciation to be set off in computation of total income of assessment year 2007-08 in the Statement of Income; a copy of which was placed before hon'ble tribunal in the paper book filed by the appellant at pages 1 to 3 of Paper book II filed at the time of hearing. The amount quantified by the appellant for unabsorbed depreciation and brought forward losses was ₹ 19,35,23,894/ - whereas in the assessment order made on 29.12.2009, Ld. Assessing Officer has quantified the amount of deduction at ₹ 21,28,16,977/ - on the basis of the assessment records of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law laid down by the competent authority has to be invariably followed. It is a settled law that when a court declares the law on a subject, the declaration goes back to the date of enactment of that particular law as to state that the law from the date of its enactment itself was in the manner decided by the court subsequently. Therefore, the pronounced order of the Special Bench dates back to the date of enactment and, therefore, the superimposition made by the judicial pronouncement the assessment order has become erroneous. The appellant submits that the above observations of hon'ble tribunal constitute mistake apparent from record. In the case of Malabar Industrial Co. Ltd. v. CIT, hon'ble Supreme Court has referred to one of the courses permissible in law . Hence, the impression of hon'ble ITAT that there cannot be two views on a question of law is a mistake. Unless it can be said that the Assessing Officer has in the assessment order adopted an impermissible course in law the assessment order under consideration cannot be said to be erroneous. Secondly, the observations of hon'ble ITAT that the subsequent decision of Special Bench dates back t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rectified u/s 254(2).' 4. In the light of the errors pointed out hereinabove the learned AR of the assessee submitted that Hon'ble Tribunal may be pleased to suitably amend this order dated 16.11.2012 in the case of the appellant in order to rectify aforesaid mistakes, which are apparent from record. 5. The DR submitted that there is no mistake apparent on record which warrants recall of Tribunal order and relied on the impugned order of the Tribunal. 6. We have heard both the parties and perused the material on record. The argument of the AR is totally misconceived. The Tribunal considered the issue in dispute in its order and given categorical findings. Now, the assessee's counsel wants to re-argue the case for which the Tribunal has no power to review its own order. 7. It is well settled that statutory authority cannot exercise power of review unless such power is expressly conferred. There is no express power of review conferred on this Tribunal. Even otherwise, the scope of review does not extent to re-hearing of the case on merit. It is held in the case of CIT v. Pearl Woolen Mills [2011] 330 ITR 164/[2010] 191 Taxman 286 (Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 s. 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. 10. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163/159 Taxman 122 (Delhi), 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 pre-requisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall and review of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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