TaxTMI 
TaxTMI 
2012 (11) TMI 468
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsel thus do not lead any assistance to the assessee's contention." Further he submitted that the Tribunal also observed as follows: "The irregularity cannot be said to go to the root of the matter but mere irregularity which can always be waived by the parties." 3. He submitted that there is a mistake in the order of the Tribunal and the general observation of the Tribunal that the various decisions relied upon by the assessee do not lead support to the contention of the assessee is a factual error. He submitted that the decision in the case of Arun Lal v. Asstt. CIT [2010] 124 ITD 85 (Agra) (TM) was not properly considered. According to the learned AR not following the above decision is mistake apparent on record. Further he drew our attention to the following sentence in para 15: "Though it may be true that GPA holder had not had any authority to accept the notice on behalf of the assessee, but the facts remains that the GPA holder did receive the notice and had hired the chartered accountant to represent the case before the ITO." 4. He also submitted that the following observation in Tribunal order in para 17 is also an error: "In such situation, the service on the agent ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n stated by the Tribunal that the facts of this case as well as the arguments put forth by the rival parties were examined. These observations clearly indicated the application of mind by the Tribunal and consideration of the relevant material including the case laws cited during the course of hearing of the appeals. For the simple reason that each and every document or each and every sentence or paragraph from such documents had not been threadbared and elaborately discussed in the appeal order did not mean that there had been non-application of mind or non-consideration of the relevant material for arriving at the decision by the Tribunal. It was sufficient if the Tribunal stated that there had been examination of the facts of this case as well as arguments put forth by the rival parties. It is not necessary or imperative on the part of the appellate authority that it should give additional or separate reasons if the Tribunal is in agreement with the reasons given by the lower tax authorities. In the instant case, the Tribunal did not deem it fit and proper to give elaborate additional reasons to uphold the impugned order of the Appellate Commissioner and merely endorsed the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ties. But such a remedy is available only if provided by the statute. Even assuming that the statute does confer power of review then such a power of review can only be exercised within the parameters fixed by the statute itself. Therefore, the Tribunal having already delivered a judgment which by operation of law had become final, it was not eligible, authorised or empowered to review its own decision in a subsequent proceeding brought either in the guise of rectification proceedings under section 254(2) or in any other manner. Therefore, the miscellaneous petitions were dismissed" 7. We have heard both the parties and perused the material on record. In this case the Tribunal after considering the entire facts and circumstances of the case held that there is valid service of notice u/s. 148 of the Act. The order of the Tribunal may not be drafted in a manner as the assessee wanted. Because the order is not in favour of the assessee that cannot be said to be an error having mistake apparent on record. The Tribunal cannot be said to be committed an error as the Tribunal not elaborately given the finding that the order of the Tribunal relied upon by the assessee's counsel is not an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex-parte. Judged in the above background the order passed by the Tribunal is indefensible. 10. The words used in s. 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake under s. 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be allowed to be done indirectly. 11. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163, their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as under: "Under s. 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain th....