TaxTMI 
TaxTMI 
2014 (1) TMI 1535
X X X X Extracts X X X X
X X X X Extracts X X X X
....in para 16 of its order by remitting the issue back to the file of the AO though the Development Agreement is available on record which clearly demonstrates that the housing project being developed by the assessee is at its own risk and cost and, therefore, the assessee is undoubtedly a developer and not a work contractor and is entitled for deduction u/s. 80IB(10) of Income tax Act, 1961. According to the AR the Tribunal ought not have remitted the issue back to the file of the AO for such consideration. 3. The learned DR submitted that there is no mistake apparent in the order of the Tribunal which needs to be rectified and consideration of the plea of the AR would amount to reviewing of its own order by Tribunal which is not permissib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ial to substantiate its claim for deduction under s. 80IB(10) of the Act. The Assessing Officer shall accordingly pass appropriate speaking orders re-deciding this issue in accordance with law and after giving reasonable opportunity of hearing to the assessee." 5. In our opinion, the above finding of the Tribunal is a conscious decision and if the assessee has any grievance with the findings of the Tribunal, the remedy lies elsewhere. Consideration of argument of the assessee's counsel at this stage will amount to review of its own order by the Tribunal. The order of the Tribunal should be read as a whole and not in a piecemeal manner. The Tribunal had considered the cumulative effect of all the facts and circumstances of the case and gi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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." 8. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under s. 254(1) is the effective order so far as the appeal is concerned. Any order passed under s. 254(2) either allowing the amendment or ref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne indirectly. 10. In the case of CIT vs. Hindustan Coca Cola Beverages (P) Ltd. (2007) 207 CTR (Del) 119; (2007) 293 ITR 163 (Del), 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 that the power to rectify 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....