TMI Blog1979 (1) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... f rectifying the mistake of law committed in the appeal order dated January 5, 1968? 2. Whether the Appellate Tribunal having concluded in the appeal order dated January 5, 1968, that on merits the levy of penalty was justified was right in reopening that issue while rectifying the mistake of law based on the department's miscellaneous application ? " The assessee is a proprietor of a Tamil magazine and a press. For the assessment year 1959-60, he filed a return some time prior to January 9, 1962. On January 9, 1962, as against a return of income of Rs. 17,606, he was assessed on a total income of Rs. 30,210. In the assessment a sum of Rs. 12,000 which represents the aggregate of certain credits in the name of one Ratnaguruswamy was fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In the course of the order dated January 5, 1968, by which the appeal of the assessee was disposed of in the above manner, the Tribunal stated in para. 4 of its order thus : " On merits, we are satisfied that the levy of penalty was fully justified. The credits in the name of Rathnaguruswamy were found to be bogus both by the Appellate Assistant Commissioner and the Appellate Tribunal. There is, therefore, a clear case of concealment of income attracting the provisions of section 27(1)(c). " In the grounds of appeal by the assessee before the Tribunal, two points were taken relating to (1) the validity of the penalty order made under the provisions of the 1961 Act ; and (2) the leviability of penalty and also the quantum thereof. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was liable to be rectified under s. 254(2). The application filed by the ITO was, therefore, allowed. In doing so, the Tribunal stated as follows : " The last sentence of paragraph 4 and entire paragraph 5 of the order of the Tribunal dated January 5, 1968, should be deleted and the following should be substituted in its place : 4. In view of the decision of the Supreme Court in Jain Brothers[1970] 77 ITR 107 and Singh Engineering Works [1970] 78 ITR 90, the contention of the assessee is rejected. The penalty levied is restricted to 30% of the tax sought to be evaded. 5. In the result the appeal is allowed in part to the extent referred to above. Excess penalty recovered is ordered to be refunded. " The tax sought to be evaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even s. 254(2) does not confer on the Tribunal the power to review its own order. That the Tribunal has actually reviewed its own order is clear from the passage in the statement of the case. However, the Tribunal, while passing the original order dated January 5, 1968, failed, to consider whether the penalty levied was arbitrary and excessive, as mentioned in para. 6 of the grounds of appeal. A power to rectify a mistake does not include a power to review. As the Tribunal has no power of review and as the power of review can only be granted by the statute, which has not been done in the present case, the order of the Tribunal, in so far as it went into the question of quantum of penalty is plainly without jurisdiction. In exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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