TaxTMI 
TaxTMI 
2014 (1) TMI 904
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....ved by the order of the CIT(A) the assessee is in appeal before us. 8. We have heard the arguments of both the parties and perused the record as well as gone through the orders of the authorities below. We find that the issue has already been dealt with by the ITA, Hyderabad Bench in the case of Teja Constructions in ITA No. 1191/Hyd/2011 dated 17/02/2012 wherein ITAT has held as under:- "10. The first two grounds are against the order of the CIT(A) (a) directing the assessing officer to estimate the income of the assessee @ 9% on own contract works, 8% on contracts taken by assessee on subcontracts and @ 5% on contracts given by the assessee to 3rd party on subcontracts and (b) directing the assessing officer to allow remuneration, i....
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....capital and remuneration. The circumstances this year being identical as the earlier year and as Department has not brought anything on record to persuade us to take a different view, respectfully following the decision of the coordinate bench, we uphold the order of the CIT(A) regarding the rate of profits to be adopted on the gross receipts and a further allowance of remuneration, interest on capital and depreciation. The Revenue's appeal on these issues is dismissed." 2. Hence, the M.A.No.124/Hyd/2012 filed by the assessee was allowed. 3. The applicant has now filed present M.A.No.147/Hyd/2013 against the Order in M.A.No.124/Hyd/2012 and submits as follows : "The Hon'ble Tribunal has although allowed the M.A., but the Assessing ....
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....ng Officer to allow remuneration, interest on pital and depreciation out of estimated income. Therefore, we find no infirmity in the Order of the Tribunal and the miscellaneous application fails. 5. By this MA, the learned Counsel for the assessee wishes the Tribunal to review its earlier order, which the Tribunal cannot do it in view of the provisions of section 254(2), as per which, the powers of the Tribunal are limited. 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 vs. Pearl ....
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.... existence de hors the order under s. 254(1). Recalling of the order is not permissible under s. 254(2). Recalling of an order automatically necessitates rehearing and re- adjudication of the entire subject-matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms of Rule 24 of the ITAT Rules, 1963, and that too only in case where the assessee shows that it 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. 7. The words used in s. 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly,....
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....4(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 s. 254(2) of the Act and non-consideration of precedent by the Tribunal causes a prejudice to the assessee. (c) Thirdly, power to rectify a mistake is not equivalent to a power ....