TMI Blog2021 (1) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... uch remedy is certainly not provided by section 254(2) . In the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section 254(2) of the Act. We note that in assessee`s case under consideration, the Tribunal has considered the decision of ACIT vs. Goldmine Shares Stock Finance Pvt. Ltd(supra) cited by the assessee during the hearing and also considered the entire facts of the assessee`s case, and reached on the conclusion/decision. The said conclusion, that is, the ratio of the decision of the Tribunal, cannot be reviewed or rectified by the Tribunal under section 254(2) of the Act, therefore we dismiss all the miscellaneous application filed by the assessee. - MA Nos.47, 48 and 49/SRT/2018 [in ITA Nos.2196/AHD/2015, 2197/AHD/2015 & 339/ AHD/2016/SRT] - - - Dated:- 21-12-2020 - Shri Pawan Singh, JM And Dr. A. L. Saini, AM For the Assessee : Shri S D Chheda - AR For the Revenue : Ms Anupama Singla - Sr. DR ORDER PER DR. A. L. SAINI, ACCOUNTANT MEMBER: By way of the these miscellaneous applications, the assessee has sought to point out that a mistake ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we are of the view that the CIT (A) has justified in refusing the claim of the assessee. Thus, ld Counsel argued that above observations of the Tribunal and decision of the Tribunal is in variance with the binding judgement of ACIT V. Goldmine Shares Stock Finance Pvt. Ltd. [2008] 113 ITD 209 (Ahd) (SB ) and therefore this constitutes mistake apparent from record which requires rectification. 5. Ms Anupama Singla, ld. Departmental Representative for the Revenue submitted before us that Tribunal has discussed in its order, the decision of ACIT vs. Goldmine Shares Stock Finance Pvt. Ltd. [2008] 113 ITD 209 (Ahd) (SB) and has also considered the other facts of the assessee and then adjudicated the assessee s issue under consideration, therefore there is no mistake apparent in the order of the Tribunal. It is not the case of the assessee that decision cited by the assessee has not been considered by the Tribunal, that is, the Tribunal did consider the decision cited by the assessee during the hearing in the light of the assessee`s facts. Therefore, to rectify the order of the Tribunal in this scenario would be tantamount to review the order of the Tribunal, which is again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question before us is that whether in this scenario the Tribunal order dated 10.08.2018 contained a mistake apparent which can be rectified under section 254(2) of the Act? Before we proceed to adjudicate this issue, let us first consult the provisions of section 254(2) of the Act, which reads as follows: Orders of Appellate Tribunal. 254. (2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer. Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard : [Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard both the sides, considered the material on record and before reverting to facts, it would be apt to consider the relevant provisions of law relating to section 254(2). A bare look at section 254(2) of the Act, which deals with rectification, 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. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. Mistake means to take or understand wrongly or inaccurately; to make an error in interpreting, it is an error; a fault, a misunderstanding, a misconception. Apparent means visible; capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) is permissible where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. Accordingly, the amendment of an order does not mean obliteration of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. 4. As is apparent from the discussion held in the preceding paragraphs, that a rectification application can lie only with regard to an error on the face of the record which has not emerged from the material on record and moreover, the assessee has not been able to point out any apparent mistake in the order passed by the Tribunal and in case application of the assessee is accepted, it would tantamount to review of the order of the Tribunal, as has rightly been pleaded by the ld. DR, that reviewing of the order of the Tribunal is not permissible and for that purpose useful reference can be made to the following decisions. 4.1 The Hon ble Calcutta High Court in the case of CIT vs Gokul Chand Agarwal (202 ITR 14), has held as under: Section 254(2) of the Income Tax Act, 1961, empowers the Tribunal to amend its order passed under section 254(1) to rectify any mistake apparent from the record either suo moto or on an application. The jurisdiction of the Tribunal to amend its order thus depends on whether or not there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: APPELLATE TRIBUNAL DUTY TO CONSIDER CUMULATIVE EFFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS NO NEED TO STATE SO IN APPELLATE ORDER SPECIFICALLY INCOME TAX ACT, 1961, SEC. 254,Further it was 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 any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgement specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the tribunal shows that it has, in fact, done so, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of Section 254(2) is limited and narrow. It is restricted to rectification of mistakes apparent from the record. Recalling the order obviously would mean passing of a fresh order. Recalling of the order is not permissible under Section 254(2) of the Act. Only glaring and any mistake apparent on the face of the record alone can be rectified and hence anything debatable cannot be a subject matter of rectification. 4.5 Further, we place reliance upon Hon ble Delhi High Court exposition on the scope of rectification u/s 254(2) as reported in the case of Ras Bihari Bansal Vs. Commissioner of Income Tax (2007) 293 ITR 365: Section 254 of the Income Tax Act, 1961, enables the concerned authority to rectify any mistake apparent from the record . It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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