Income Tax Appellate Tribunal - Chennai
M.Alagesan, Tiruvannamalai vs Assessee on 23 October, 2008
IN THE INCOME-TAX APPELLATE TRIBUNAL
CHENNAI 'C' BENCH, CHENNAI.
Before Shri.U.B.S. Bedi J.M. & Shri.Abraham P. George, A.M.
M.P. No.153/Mds/2010
[In ITA No. 338/Mds/2008]
Assessment Year: 2003-04
Shri M. Alagesan, The Income Tax Officer,
Prop: Manikandan Rice Mill, Ward I (4),
Palvarthuvendan Village, Polur Taluk, Vs. Vellore.
Thiruvannamalai District.
[PAN:AGITA7815G]
(Appellant) (Respondent)
Assessee by : Shri S. Sridhar
Revenue by : Shri P.B. Sekharan
ORDER
PER U.B.S. BEDI, J.M.
By means of present miscellaneous petition, the assessee seeks to get recalled the order of the Tribunal in ITA No. 338/Mds/2008 dated 23.10.2008 mainly on the ground that the assessee had sent adjournment request which reached the Registry of the Bench belatedly i.e. beyond the hearing date and passing of the ex-parte order overlooking such request would be violative of principles of legitimate expectation as well as doctrine of fair procedure. It was thus submitted that Rule 25 though envisages the disposal of the Departmental appeal ex-parte, the proviso to the said rule gives discretion to the Bench to recall the ex-parte order if the petitioner/applicant shows sufficient cause for his non-appearance later. Since there is sufficient cause for the petitioner for non-appearance before the Bench on the last date of hearing and fault of non-delivery of adjournment petition at the time of hearing of the appeal is beyond the control of the petitioner, which is neither willful nor deliberate, therefore, it was prayed 2 MP No.153/Mds/10 for recalling the order in the interest of justice with a view to give an opportunity of hearing to the assessee.
2. The ld. DR strongly opposed the plea of the assessee and submitted that the plea raised by the assessee is untenable in as much as no material or evidence has been produced, whether any request for adjournment was sent and what was the date of the request, through which mode the same has been submitted and since none of the particulars has been placed on record and otherwise, ex-parte order has been passed on merits after discussing each and every points raised in the appeal of the Department and the assessee has not been able to point out any mistake in the order in his petition or demonstrated by the ld. Counsel for the assessee at the time of hearing of the petition, therefore, no case has been made out by the assessee even in terms of proviso to Rule 25 or otherwise reliance was placed on 'B' Bench in MP No. 310/Mds/2009, etc. dated 09.11.2010 (copy of the order filed). It was further submitted that if the application of the assessee is accepted that would amount to review of the order, which is not permissible under law, therefore, the petition of the assessee should be dismissed.
3. We have heard both the sides, considered the material on record and find that despite receiving the notice (as admitted), the assessee has not appeared on the date of hearing nor any request for adjournment has been received. The plea raised that the assessee has sent some adjournment request, the assessee has not been able to substantiate such claim by furnishing any material or evidence in this regard and otherwise appeal of the Department has been decided on merit while discussing and considering each and every points raised by the Department and the assessee has not 3 MP No.153/Mds/10 been able to point out any apparent mistake in the said order. Therefore, we are of the view that the assessee has not been able to make out a case to invoke the proviso to Rule 25 of ITAT Rules, otherwise no mistake has been pointed or found in the order passed by the Bench and in case petition of the assessee is accepted, it would amount to review of the order, which is not permissible and the Tribunal is not empowered to review the order passed either and support can be taken from the decision of the Hon'ble Calcutta High Court in the case of CIT vs Gokul Chand Agarwal (202 ITR 14), which has dealt with the similar point and opined 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 mistake apparent from the record. If, in its order, there is no mistake which is patent and obvious on the basis of the record, the exercise of the jurisdiction by the Tribunal under section 254(2) will be illegal and improper. An oversight of a fact cannot constitute an apparent mistake rectifiable under section 254(2). This might, at the worst, lead to perversity of the order for which the remedy available to the assessee is not under section 254(2) but a reference proceeding under section 256. The normal rule is that the remedy by way of review is a creature of the statute and, unless clothed with such power by the statute, no authority can exercise the power. Review proceedings imply proceedings where a party, as of right, can apply for reconsideration of the matter, already decided upon, after a fresh hearing on the merits o the controversy between the parties. Such remedy is certainly not provided by the Income Tax Act, 1961, in respect of proceedings before the Tribunal."
4.1 In similar situation, while dealing with the rectification, the Hon'ble Andhra Pradesh High Court in the case of CIT and Anor vs. I.T.A.T and Anor (206 ITR 126 has held as under:
"The appellate Tribunal, being a creature of the statute, has to confine itself in the exercise of its jurisdiction to the enabling or empowering terms of the statute. It has no inherent power. Even otherwise, in cases where specific provision delineates the powers of the court or Tribunal, it cannot draw upon its assumed inherent jurisdiction and pass orders as it pleases. The power of rectification which is specifically conferred on the Tribunal has to be exercised in terms of that 4 MP No.153/Mds/10 provision. It cannot be enlarged on any assumption that the Tribunal has got an inherent power of rectification or review or revision. It is axiomatic that such power of review or revision has to be specifically conferred, it cannot be inferred. Unless there is a mistake apparent from the record in the sense of patent, obvious and clear error or mistake, the Tribunal cannot recall its previous order. If the error or mistake is one which could be established only by long drawn arguments or by a process of investigation and research, it is not a mistake apparent from the record."
4.2 Further, the Hon'ble Supreme Court in the case of CIT vs Karam Chand Thapar and Br.P.Ltd. (176 ITR 535) has held as 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, there is no reason to interfere with the decision of the Tribunal.
Similarly the Bombay High Court in the case of CIT-vs- Ramesh Electric and Trading Co. (203 ITR 497) .............It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record........ The power of rectification under section 254(2) can be exercised only when the mistake which is sought to be rectified s an obvious and patent mistake which is apparent from the record and not a mistake which required to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinion. Failure of 5 MP No.153/Mds/10 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 judgments........................"
4.3 We also draw support here from Hon'ble Madras High Court decision in T.C.(A) No. 156 of 2006 dated 21.08.2007 in the case of CIT Vs. Tamil Nadu Small Industries Development Corporation Ltd. wherein the Hon'ble High Court held as under:-
"The Tribunal has no power to review its order. When the Tribunal has already decided an issue by applying its mind against the assessee, the same cannot be rectified under Section 254 (2) of the Act. There was no necessity whatsoever on the part of the Tribunal to review its own order. Even after the examination of the judgments of the Tribunal, we could not find a single reason in the whole order as to how the Tribunal is justified and for what reasons. There is no apparent error on the face of the record and thereby the Tribunal sat as an appellate authority over its own order. It is completely impermissible and the Tribunal has traveled out of its jurisdiction to allow a Miscellaneous Petition in the name of reviewing its own order".
"In the present case, in the guise of rectification, the Tribunal reviewed its earlier order and allowed the Miscellaneous Petition which is not in accordance with law. Section 254(2) of the Act does not contemplate rehearing of the appeal for a fresh disposal and doing so, would obliterate the distinction between the power to rectify mistakes and power to review the order made by the Tribunal. The scope and ambit of the application 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."
4.4 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 6 MP No.153/Mds/10 moving an application under section 254(2) of the Act. Further, 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."
5. Therefore, in view of the facts, circumstances, in the light of ratio of decisions cited and discussion as held above, we do not find any substance in the petition of the assessee and dismiss the same being devoid of any merits.
6. In the result, the Miscellaneous Petition of the assessee gets dismissed.
Order pronounced on 11.02.2011.
Sd/- Sd/- (ABRAHAM P. GEORGE) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER Chennai, Dated, the 11.02.2011 Vm/- To:The assessee//A.O./CIT(A)/CIT/D.R.