TaxTMI 
TaxTMI 
TaxTMI 
2011 (7) TMI 585
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....at if the DIT (E) did not withdraw the registration under section 12AA, question of denying approval for the purpose of section 80G(5) does not at all arise. Therefore, the trust is a charitable institution and in such case the grant of approval under section 80G(5) cannot be denied. In support of this contention, the learned counsel for the assessee relied on the decisions of Supreme Court i.e., Asstt. CIT v. Surat City Gymkhana [2008] 300 ITR 214/170 Taxman 612 and Radhasoami Satsang v. CIT [1992] 193 ITR 321/60 Taxman 248 (SC) and the assessee's case is totally and squarely governed by these decisions. The learned counsel for the assessee contended that when the assessee's issue is covered by the Supreme Court decisions, all authorities are supposed to follow the Supreme Court decision as is provided in Article 141 of Constitution of India. But in assessee's case these two cases although mentioned in paras 3 and 4 of the M.A. order, the Tribunal did not adjudicate on this issue with reference to the Supreme Court orders cited above. If the Tribunal was of the view that the above Supreme Court decisions are not applicable to the facts of the assessee's case then the same fact sho....
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....al cause or a matter between the parties, inter se. It is a matter between the court and the contender. Whenever an act adversely affects the administration of justice or tends to impede its course, or shakes public confidence in a judicial institution, the power can be exercised to uphold the dignity of the court of law and protect its proper functioning." 6. Accordingly, the learned counsel for the assessee requested the Tribunal to rectify the mistake by following the judgment of Supreme Court in case of Surat City Gymkhana (supra) and in case of Radhasoami Satsang (supra) and contended that omission to follow the above SC decisions is mistake apparent from the record and hence requires rectification under section 254(2). 7. The learned DR submitted that there is no force in the argument of the learned counsel for the assessee and this second Miscellaneous Application cannot be entertained. She submitted that the ratio of judgment in the case of Radhasaomi Satsang (supra) does not apply to the facts of the present case. The learned DR drew our attention to the last para of the judgment in the case of Radhasaomi Satsang (supra) wherein it is specifically mentioned that the deci....
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....16. 9. Further it is well settled that statutory authority cannot exercise power of review unless such power is expressly conferred. There is no express power of review conferred on this Tribunal. Even otherwise, the scope of review does not extent to re-hearing of the case on merit. It is held in the case of CIT v. Pearl Woollen Mills [2011] 330 ITR 164/[2010] 191 Taxman 286 (Puinj. & Har.). "Held, that the Tribunal could not readjudicate the matter under section 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 10. The scope and ambit of application of section 254(2) is very limited. The same i....
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....y a mistake is not equivalent to a power to review or recall the order sought to be rectified. Rectification is a species of the larger concept of review. Although it is possible that the pre-requisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall and review of the order sought to be rectified." 13. Thus the scope and ambit of application under section 254(2) is as follows: (a) Firstly, the scope and ambit of application of section 254(2) of IT Act is restricted to rectification of the mistakes apparent from the record. (b) Secondly, that no party appearing before the Tribunal should suffer on account of any mistake committed by the Tribunal and if the prejudice has resulted to the party, which prejudice is attributable to the Tribunal's mistake/error or omission, and which an error is a manifest error, then the Tribunal would be justified in rectifying its mistake. The "rule of precedent" is an important aspect of legal certainty in the rule of law and that principle is not obliterated by section 254(2) of the Act and non-consideration of pre....
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....n raised in the Miscellaneous Application is that the case-law cited by the assessee in support of its contention has not been considered by the Tribunal while passing the order and also reason for not consideration is also not given by the Tribunal while passing the order, hence, there is mistake apparent in the order of the Tribunal which calls for rectification. 16. In this regard, we would like to mention that in the order, the Tribunal first meticulously mentioned the arguments of the learned AR for the assessee, the points raised by him then the relevant case-laws relied upon by the AR of the assessee. Thereafter, the Tribunal considered the same and passed a speaking order for not entertaining the claim of the assessee. While rejecting the claim of the assessee the Tribunal placed reliance on the judgment of Supreme Court in the case of Gangabai Charities v. CIT [1992] 197 ITR 416/63 Taxman 501 which is directly on the issue raised by the assessee. Thus, in view of our detailed discussion and applying the ratio of the decision of the Apex Court in the case of Gangabai Charities cited (supra), we concluded that the DIT (Exemptions) is justified in rejecting the approval unde....
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..... Being so, we are not able to appreciate the arguments of the learned counsel for the assessee, how this judgment helps the assessee, more so to be treated as a binding precedent under Article 141 of the Constitution of India. 21. Further from the order of the Tribunal dated 26th March, 2010 it is evident that the Tribunal considered the arguments of the assessee's counsel as well as the ratio of the decisions of the Supreme Court elaborately discussing the same in the order. Hence, it cannot be said that the Tribunal has not considered the case-law cited by the learned AR for the assessee as alleged in the Miscellaneous Application. On the contrary, the Tribunal in the order, after taking note of the case-law relied upon by the learned AR for the assessee, gave reasoning why it was not relevant to consider the same. The averment of the assessee is that the decision of the Apex Court relied on by him has not been applied by the Tribunal while coming to the conclusion in paras 12 and 13 of the Tribunal order, is not a mistake apparent on record falling within the scope of section 254(2) of the I.T. Act in view of our discussion hereinabove in this order as reconsidering the same w....