Partha Sarathi Chaudhury, J.M:
1. This Miscellaneous Application is preferred by the assessee against the order of the Tribunal dated 2/5/2018 in I.T.A. No.236/LKW/2017.
2. The submission of the assessee was that the observation of the Tribunal that assessee has furnished before the ld. CIT(A) audit reports, etc. in violation of rule 46A, which were not furnished before the Assessing Officer, is totally wrong. It was further submitted that the Tribunal has enhanced its scope envisaged under section 254 of the Act by observing that ld. CIT(A) should either conduct independent enquiry or call for remand report and allow the assessee to counter it. Therefore, there is an apparent mistake in the order of the Tribunal, which needs rectification and, therefore, the order of the Tribunal may be recalled and the matter may be decided afresh after providing an opportunity of hearing to the assessee.
3. The ld. D.R., on the other hand, submitted that there is no mistake in the order of the Tribunal, as the Tribunal has decided the issues involved in the appeal filed by the Revenue in right perspective, therefore, no interference is called for in the order of the Tribunal. Moreover, the Tribunal has restored the matter to the file of the ld. CIT(A) and therefore the assessee should not have any grievance.
4. We have perused the case record, heard the rival contentions and considered the order of the Tribunal dated 2/5/2018 vis--vis the Miscellaneous Application. The facts of the case was that the Department was aggrieved against deletion of disallowance made out of repairs and maintenance of Rs.35,96,813/- on the basis of fresh submissions and additional evidences submitted by the assessee without calling remand report from the Assessing Officer, irrespective of the fact that the assessment order was completed by the Assessing Officer made under section 143(3) of the Act and that the assessee failed to substantiate before the Assessing Officer business expediency of those expenses related to assessee's business, and also that those disallowances were made by the Assessing Officer on the basis of enquiry made on premises on which the said expenses were claimed to have been made by the assessee for its business. The other grievance of the Department relates to the deletion of disallowance made out of business promotion of Rs.2 lakhs and moreover whether the assessee did not offer any justified explanation to prove commercial expediency of those expenses with the business of the assessee. After considering the submissions of the parties and materials available on record, the Tribunal set aside the matter to the ld. CIT(A) with a direction that the ld. CIT(A) should bring out in his order specially as to why he is holding the submissions of the assessee to be correct and that how all these expenses could be covered under section 37(1) of the Act. The ld. CIT(A) should either conduct independent enquiry or call for remand report and allow the assessee to counter it. With regard to deletion of disallowance made out of business promotion for Rs.2 lakhs also, the Tribunal restored the matter to the file of the ld. CIT(A) to decide the same afresh. We are of the considered view that since the Tribunal has taken a particular view in the light of assessee's contentions, the findings of the Tribunal cannot be reviewed under the garb of rectification.
5. The scope of provisions of section 254(2) of the Act has been repeatedly examined by the Hon'ble Apex Court and various High Courts and it was held that the Tribunal can rectify only those mistakes which are arithmetical or clerical or apparent in its order. The Tribunal has no jurisdiction to review its own order in the grab of rectification. It was also held that if the Tribunal commits an error of judgement, that error cannot be rectified under the provisions of section 254(2) of the Act as the Tribunal is not empowered by the statute to review its own order. In the case of CIT Vs. Vardhman Spinning; 226 ITR 296 their Lordships of the Punjab and Haryana High Court have held in specific terms that "the Appellate Tribunal is creation of statutes and it can exercise only those powers which have been conferred upon it. The only power conferred on the Tribunal u/s 254(2) of the I.T. Act, 1961 is to rectify any mistake apparent from record. The jurisdiction to review or modify orders passed by the authorities under the Act cannot be interfered with on the basis of supposed inherent rights. U/s 254(1) of the Act, the Appellate Tribunal, after hearing the contesting parties, can pass such order as it deems fit. Sec. 254(2) of the Act specifically empowers the Appellate Tribunal at any time within four years of the date of an order to amend any order passed by it u/s 254(1) of the Act with a view to rectify any mistake apparent from record either suo moto or on an application made. What can be rectified under this section is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or inquiry is necessary. Where two opinions are possible, then it cannot be said to be an error apparent on the face of the record".
6. In the case of CIT Vs. Suman Tea and Plywood Industries (P) Ltd., 226 ITR 34 their Lordships of Calcutta High Court have expressed similar observations after holding that "under section 254(2) of the Income-tax Act, an order, which has been passed by the Tribunal reaches finality the moment the same is passed; cannot be touched thereafter. By section 254(2) of the Act, the Tribunal, however, has been authorized to rectify mistakes in its orders, which are apparent on the face of the records. The expression `mistake apparent on the record' means a mistake either clerical or grammatical or arithmetical or of like nature, which can be detected without there being any necessity to re-argue the matter or to re-appraise the fact as appearing from the records." In another case CIT Vs. Golal Chand Agarwal; 202 ITR 14 their Lordships of Calcutta High Court have also held that section 254(2) of the Income-tax Act, 1961 empowers the Tribunal to amend its order passed u/s 254(1) to rectify any mistake apparent from the record either suo moto or on an application. 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 u/s 254(2) will be illegal and improper. An oversight of the 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 proceedings u/s 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.
7. The Hon'ble High Court of Allahabad in the case of CIT Vs. ITAT; 143 CTR 446 has held that "sub-section (1) of section 254 confers ample powers on the Tribunal to pass such orders in any appeal filed before it as it thinks fit. Sub-section (2) of section 254 postulates that the Tribunal may amend any order passed by it under sub-sec. (1) of section 254 with a view to rectifying any mistake apparent from the record. The power of the Tribunal conferred by sub-section (2) of section 254 for rectifying any mistake apparent from the record cannot be exercised by the Tribunal to recall any order passed by it under section 254(2). Further, reviewing and recalling an order is one thing and rectifying a mistake in the order which is apparent from the record is quite another. In the absence of any statutory provision for review by Tribunal, the order passed by the Tribunal cannot be recalled or reviewed under section 254(2) of the Act." The provisions of section 254 were also examined by the Hon'ble High Court of M.P. in the case of Prakash Chand Mehta Vs. CIT; 220 ITR 277 in which their Lordship have held that scope of section 254(2) of the Income-tax Act is very limited and it is only the apparent error which can be rectified.
8. Their Lordships of the Apex court in the case of T.S. Balaram ITO Vs. Volkart Brothers; 82 ITR 50 (SC) have held that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from record. Their Lordships have further held that if a statement of any person has been recorded without producing him in the witness box, the authorities should not act upon that statement without affording the assessee an opportunity to cross-examine the witness, but that is a matter not for rectification but it is a matter relating to the merits of the case as to whether the Tribunal has gone wrong in not considering the affidavit of a particular person and has acted upon the statement of the same person which was recorded by the ITO without being permitted to cross examine by the assessee. This is not a matter in which the apparent error is involved but it is a matter more of merit and cannot be rectified within the scope of rectification. The powers of the Tribunal while making a rectification were again examined by the Apex Court in the case of CIT Vs. Hero Cycles Pvt. Ltd.; 228 ITR 463 in which their Lordships have held that rectification can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from record. Rectification is not possible if the question is debatable. Moreover, a point which was not examined on facts or in law cannot be dealt with as mistake apparent from record. In the case of ITO Vs. ITAT; 229 ITR 651 their Lordships of Patna High Court have also expressed a similar observation after holding that section 254(2) of the Act empowers the Tribunal to amend any order passed by it under sub-section (1) with a view to rectifying a mistake from record. However, section 254(2) does not authorize the Tribunal to review its order or to sit in appeal over its earlier order. If it is done, it would amount to an amendment of an earlier order with a view to rectify a mistake apparent from record, but it would be an order passed on reappraisal of the material facts and circumstances and on a fresh application of the legal position which is not permissible within the scope of section 254(2) of the Act.
9. In the case of Ms. Deeksha Suri Vs. ITAT; 232 ITR 395 their Lordships of Delhi High Court have held in specific terms that "the Income-tax Appellate Tribunal is a creature of the statute. It has not been vested with the review jurisdiction by the statute creating it. The Tribunal does not have any power to review its own judgements or orders. The grounds on which the courts may open or vacate their judgements are generally matters which render the judgement void or which are specified in the statutes authorizing such sections. The language of section 254(2) of the Income-tax Act, 1961 is clear. The foundation for the exercising the jurisdiction is "with a view to rectify any mistake apparent on the record" and the object is achieved by "amending any order passed by it". A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent on the record".
10. Similar views have also been expressed by the Guwahati High Court in the case of CIT Vs. Prahlad Rai Todi 251
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ITR 833 by holding that "A bare look at section 254(2) will show that this section gives the power to rectify any mistake apparent from the record and not to amend any order passed by it and to make such amendment if the mistake is brought to its notice by the Assessing Officer or the assessee. So, when we speak of amendment or rectifying the mistake the earlier order can never be recalled by the Tribunal. The earlier order must hold the field and the mistake can be rectified or amended can be made to the order. The Tribunal cannot, in law and facts, recall and destroy its final order as a whole with a view to rectify the same order under section 254(2) of the Act. The action of the Tribunal actually amounts to review of its earlier order and that power to review is not available to the Tribunal." 11. We, therefore, find no merit in this Miscellaneous Application of the assessee, as no error apparent in the order of the Tribunal is pointed out. The ld. counsel for the assessee has tried to dispute the findings of the Tribunal and seeking a review of the order of the Tribunal which is not permissible under section 254(2) of the Act and we accordingly reject this Miscellaneous Application. 12. In the result, Miscellaneous Application of the assessee stands dismissed.