TMI Blog2020 (3) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... the record. As already pointed out above, there was no averment in the miscellaneous application by the respondent / assessee that it had pointed out or argued the Co-ordinate Bench decision relating to the block assessment during hearing of the appeal and that the Tribunal did not consider the same. Thirdly, we are of the view that having regard to the order passed by the Tribunal in the quantum appeal, no prejudice has been caused to the respondent / assessee. All that the Tribunal had done was to restore the matter to the file of the assessing officer for a fresh decision in accordance with law in which the respondent / assessee would have ample opportunity to place all the materials at its command before the assessing officer for consideration. Tribunal was not justified in passing the impugned order dated 05.01.2009. Accordingly, the said order is hereby set aside and quashed. - WRIT PETITION NO.1813 OF 2009 - - - Dated:- 2-3-2020 - UJJAL BHUYAN, MILIND N. JADHAV, JJ. Mr. P. C. Chhotaray for Petitioner. Mr. B. V. Jhaveri for Respondent. ORAL JUDGMENT : Heard Mr. Chhotaray, learned standing counsel Revenue for the petitioner and Mr. Jhaveri, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the said order passed by the first appellate authority, Revenue carried the matter in appeal before the Tribunal. By the order dated 30.04.2008, Tribunal held that the first appellate authority had accepted the explanation given by the respondent / assessee without subjecting them to thorough verification. First appellate authority had erred in accepting the explanation of the respondent / assessee without any supporting evidence or document. However, Tribunal took the view that in the interest of justice, the matter should be restored back to the assessing officer to examine the issue afresh. Respondent / assessee was directed to furnish necessary evidence to prove the genuineness of cash credit to the satisfaction of the assessing officer. Consequently, order of the first appellate authority was set aside and the matter was restored to the file of the assessing officer for fresh consideration. 8. However, respondent - assessee filed an application dated 12.06.2008 before the Tribunal for recall of the order dated 30.04.2008. In the said application, it was contended that the addition made by the assessing officer in the block assessment was deleted by the first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 466 to contend that power of rectification under Section 254(2) of the Act is not to be confused with the power of review. This is a power vested with the Tribunal to ensure that no prejudice is caused to either of the parties appearing before the Tribunal by its decision passed on a mistake apparent from the record. 12.2. He has also referred to the decision of the Supreme Court in ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., 305 ITR 227 to contend that in an appropriate case it is open to the Tribunal to recall its order in entirety in exercise of its power under Section 254(2) of the Act. Referring to the Full Bench decision of the Delhi High Court, he submits that after an exhaustive analysis of the entire spectrum of the law on this aspect, the Full Bench had culled out 5 principles which clearly stipulates that decision of the Supreme Court in Honda Siel Power Products Ltd. (supra) is an authority for the proposition that Tribunal can recall its own order under certain circumstances and that there is no absolute prohibition to such recalling of order in entirety. 13. At this stage, we may also mention that learned counsel for the respondent had raised an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the period prescribed in sub-section (2) that there was a mistake in the order passed by the Tribunal which is apparent from the record then the Tribunal may amend any order passed by it under subsection (1) by making such amendment with a view to rectifying a mistake apparent from the record. The key expressions in sub-section (2) are rectifying any mistake apparent from the record and amend any order passed by it . 18.1. In so far the expression any mistake apparent from the record is concerned, it has been judicially held that for a mistake to be a mistake apparent from the record, no long-drawn hearing or argument is required. It is a mistake which is apparent from the face of the record. 18.2. A similar expression i.e., error apparent on the face of the record appears in Order XLVII, Rule 1 of the Civil Procedure Code, 1908 dealing with application for review of judgment. This expression error apparent on the face of the record has received considerable judicial attention. It has been held that an error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake which does not need a long dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, as per the the proviso, if the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for non-appearance when the appeal was called for hearing, the Tribunal may set aside the ex-parte order and restore the appeal for hearing afresh. 21. The provisions contained in Rule 24 as discussed above and that in Section 254(2) which we have also discussed in extensio operate in different fields. While Rule 24 makes a provision for setting aside of an ex-parte order and for rehearing of the appeal, it is not so under Section 254(2) which only deals with a situation for rectification of a mistake which is apparent from the record. 22. In Kamal Bhai Ismailji (supra), Allahabad High Court took the view that even though the Tribunal has inherent power to recall an ex-parte order on sufficient cause being shown, it has no power to review its order; it is well settled that Tribunal has no inherent power to review. Power of review has to be expressly conferred by the statute. Only a power to rectify a mistake apparent from the record has been conferred on the Tribunal under Section 254(2) of the Act. 23. The Division Bench decision of the Delhi H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54(2) of the Act can recall its order in entirety if it is satisfied that prejudice has resulted to the parties by its order passed under Section 254(1) which is attributable to the Tribunal s mistake, error or omission and which error is a manifest error and it has nothing to do with the doctrine or concept of inherent power of review. 25. Having noticed the legal provisions as above, we may now revert back to the relevant facts of the present case. 26. Referring to the order passed by the Tribunal dated 30.04.2008, we find that while the Tribunal had set aside the order passed by the first appellate authority, Tribunal restored the matter back to the assessing officer to examine the issue afresh. Respondent / assessee has been directed to furnish evidence to prove genuineness of cash credit to the satisfaction of the assessing officer. Paragraph 9 of the order reads as under: 9. In view of these findings of the ACIT in the remand report it is not possible to understand how the CIT(A) has accepted the genuineness of the transactions. The burden lies on the assessee to prove that the deposits in the bank accounts are from real people and these transactions are genuine. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority as well as by the Tribunal in the block assessment, there is no specific averment that the said orders were brought to the notice of the Tribunal or argued before the Tribunal and that the Tribunal did not consider such argument of the respondent / assessee. All that is stated in the application is that the Tribunal did not refer to the order of its Co-ordinate Bench regarding the block assessment. 28.2. Moreover, we find that in paragraph 13 of the application, respondent / assessee had merely stated that a mistake had crept in the order of the Tribunal for not considering its own order passed by the Coordinate Bench. It was not the case of the respondent - assessee that it was a mistake apparent from the record which was required to be rectified. As discussed above, all mistakes cannot be rectified under Section 254(2) of the Act. Only a mistake which is apparent from the record can be rectified under the said provision. 29. We may now refer to the impugned order dated 05.01.2009 passed by the Tribunal, relevant portion of which is extracted hereunder: 4. We have heard both the counsel of assessee and Revenue and considered the issue. It is true that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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