TMI Blog2021 (10) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... l u/s. 254(2) of the Act. It is a settled legal proposition that in the garb of Miscellaneous Application for rectification, the assessee cannot be allowed to re-open the whole matter, which is beyond the scope of section 254(2) of the Act, in the absence of any manifest error, which is obvious, clear and self evident. Tribunal is not competent to recall its previous order and re-write the same again and reverse the earlier decision taken on merit what can be rectified under the said section is a mistake apparent from record and not the mistake which needs elaborate reason or inquiry to establish the same. There is e difference between a power to review and a power to rectify a mistake apparent from record. In a nut-shell the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Complex, Power House Road, Banipark, Jaipur, A.Y 2010-11 and on perusal of the record, accordingly to the ld. DR it was observed that the ITAT has not appreciated the facts regarding issuance and service of the notice u/s 148 of the Income Tax Act, 1961 (in short, the Act) and the time limit prescribed u/s 149 of the Act is for issuance of notice and not the service thereof. As per the ld. DR, the ITAT has wrongly recorded a finding that the department has failed to bring on record that the notice u/s 148 was ever served upon the assessee as is apparent that the notice was issued in time and dispatched through speed post on 31.03.2017 and the said notice, according to the ld. DR, was also served upon one Shri Gopal . Thus, this way, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so served upon one Shri Gopal but said facts have not been correctly appreciated by the bench while deciding the main appeal on merits, therefore, according to the ld. DR, there is apparent error in the order passed by the ITAT. As far as the above arguments as raised by the ld. DR while supporting his Misc. application is concerned, in this regard, after evaluating the records, we found that the aspect with regard to issuance of notice and service thereof has been meticulously dealt with by the Tribunal in its order and the operative portion of the said order starts from para No. 7 to 14 of the order. In the said order, the issue, now raised by the Revenue has already been discussed in detailed and after considering all the rival judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The main issue now raised by the Revenue in the impugned Misc. application has already been dealt with after appreciation of legal and factual position of case and adjudicated upon merits, therefore, this ground mentioned in the Misc. application do not fall under the purview of provisions of Section 254(2) of the Act. The provisions of Section contemplate to rectify any mistake apparent from record and non-consideration of any argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgment and the same cannot be rectified u/s. 254(2) of the Act, as held by the Hon ble Bombay High Court in the case of CIT vs. Ramesh Electric Trading Co. (1993) 203 ITR 497,502 (Bom) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s obvious, clear and self evident. Thus, the Tribunal is not competent to recall its previous order and re-write the same again and reverse the earlier decision taken on merit what can be rectified under the said section is a mistake apparent from record and not the mistake which needs elaborate reason or inquiry to establish the same. Similarly, where two opinions are possible, such a situation do not fall under the provisions of section 254(2) of the Act, as held by the Hon ble Punjab Haryana High Court in the case of CIT vs. Vardhman Spinnings 226 ITR 296 (P H). Thus, it is clear that the power so conferred does not contemplate a re-hearing which would have the effect of re-writing an order, affecting the merits of the case, as sought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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