TMI Blog2019 (12) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercising power rectification, the court can not exercise the power of review or revision - The scope and ambit of the power which could be exercised under section 254(2) of the Income Tax Act 1961 is circumscribed and restricted within the ambit of the power vested by the said section. Such a power is neither a power of review nor is akin to the power of revision but is only a power to rectify a mistake apparent on the face of the record. Rectification implies the correction of an error or a removal of defects or imperfections. It implies an error, mistake or defect which after rectification is made right. Error apparent on the face of record exists or not - HELD THAT:- In the present case, there are no infirmity, impropriety and illegality in the order passed by the Ld. CIT(A), therefore, it does not require to be interfered with. It is trite to say that mistake must be apparent from record, which in the instant case does not appear - Appeal of Revenue dismissed. - M.A No.05(Asr)/2019 (Arising out of I.T.A No.533(Asr)/2016) - - - Dated:- 11-9-2019 - Vikram Singh Yadav, Accountant Member And N.K. Choudhry, Judicial Member Dheeraj Garg, (Ld. DR) for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble ITAT has dismissed the appeal of Revenue by relying upon its own judgment in ITA No.475(ASR)/2014 in the case of the assessee. While relying upon its own judgment Hon'ble ITAT has not appreciated that the Misc. Application filed by the Revenue is yet to be decided. Since a Miscellaneous Application was filed before the Hon'ble ITAT against the order in ITA NO. 475(ASR)/2014 the department is filing Miscellaneous application for the A.Y.2011-12 too before the Hon'ble Tribunal on the following grounds:- (1) The Department filed appeal before Hon'ble ITAT as the Ld. CIT(A)-II, Amritsar in appeal No 34 of 2014 dated 26.07.2016 had deleted the total disallowance of ₹ 1,56,87,500/- made by the A.O u/s 40A(3) of the Income Tax Act, 1961. The Hon'ble Tribunal vide the order mentioned above has confirmed the relief by relying upon it's own judgment in case of the assessee for A.Y 2010-11 in ITA no. 475 of 2014 dated 27.05.2016. It is to bring to your kind notice that the order of Hon'ble Tribunal was based on the decision of the Hon'ble Punjab Haryana High Court in the case of Gurdas Garg v. CIT Bathinda in ITA No. 413 of 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying upon the Co-ordinate Bench Judgment in the case of the assessee for Asst. Year 2010-11 Dy. CIT v. Sakun Aggarwal [IT Appeal No.475 (Asr) of 2014, dated 27.05.2016], which was based upon the decision of the jurisdictional High Court in the case of Gurdas Garg v. CIT [2015] 63 taxmann.com 289 (Punj. - Har.) wherein it was held that where identity of the payees were established and sale deeds were executed and genuineness thereof was accepted and the amount of payment in respect of each sale deed was certified by Revenue Authorities, the disallowance u/s 40A(3) of the Act cannot be made. 2.2 The Ld. DR has submitted that the order Sakun Aggarwal (supra) which was relied upon by the Co-ordinate Bench in the instant case has been challenged by the Department by filing the Misc. Application which is yet to be decided, therefore, prayed for recalling of its order for the year under consideration i.e. Asst. Year 2011-12 till the Miscellaneous Application for the Asst. Year:2010-11 is decided. It was further submitted by the Ld. DR that even the jurisdictional High Court has recalled its judgment passed in case of Gurdas Garg (supra) relevant to the. 3. On the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by it and shall make such amendment in appropriate cases. Further, makes it amply clear that a 'mistake apparent from the record' is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record. 4.2 The Apex Court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360, held that: 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 . 4.3 The Hon'ble Supreme Court in the case of CIT v. Karam Chand Thapar Bros. (P.) Ltd. [1989] 43 Taxman 45/176 ITR 535 has held as under: It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ambit of the power which could be exercised under section 254(2) of the Income Tax Act 1961 is circumscribed and restricted within the ambit of the power vested by the said section. Such a power is neither a power of review nor is akin to the power of revision but is only a power to rectify a mistake apparent on the face of the record. Rectification implies the correction of an error or a removal of defects or imperfections. It implies an error, mistake or defect which after rectification is made right. Therefore on the aforesaid analyzation, the inference can be drawn that the mistake apparent from record can be rectified but not otherwise. 4.6 Let us to peruse the order under consideration as to whether any mistake is apparent from the record or not. For the sake of brevity and convenience, the concluding part of the order dated 31.07.2017 passed by the Co-ordinate Bench in ITA No.533/Asr/2016 relevant to the Asst. Year: 2011-12, which is subject matter of the instant Misc. Application is reproduced herein below: 5. We have gone through the facts and circumstances of the case as it is clear from the facts of the case that the assessee had not made any cash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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