TaxTMI 
TaxTMI 
2015 (2) TMI 440
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....pparent from record have crept into the same. 2. Reiterating the averments made in the present application, learned counsel for the assessee submitted that the earlier MA, viz. MA No.214/Hyd/2013, was filed as rectification was sought on the ground that no remand of the case to the file of the Assessing Officer was required, since the material on record clearly establishes that the assessee is only a Developer and not a Works Contractor, and it is trite law that ignorance of material on record constitutes a mistake apparent from the record, capable of being rectified u/s. 254(2) of the Income Tax Act, 1961, as held by the following High Courts. (i) H.H. Maharaja Martant Singh Ju Deo V/s. CIT(171 ITR 586)-MP (ii) CIT V/s Migthalal A....
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....he bounden duty of the court to undo the wrong done to the party. Reliance in this behalf is placed on the decisions of the Supreme Court in the case of Amarjeet Singh and ors. V/s. Devi Ratan and Ors; (2010) 1 SCC 417(SC) and in Kalabharati Advertising V/s. Hemant Vimaljath Narichania and Ors.(2010) 9 SCC 437. It is also submitted placing reliance on the decision of the Apex Court in the case of S. Nagaraj V/s. State of Karnataka(1993) Suppl. (4) SCC 595 that the Tribunal has an inherent power to cure any miscarriage of justice. Reliance is also placed on the decision of the Apex Court in the case of M.S. Ahlawat V.s State of Haryana (2000) 1 SCC 278, wherein setting aside the orders passed by it earlier observing that 'To perpetuate an er....
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....on petition in respect of an order passed under S.254(1) of the Act, and secondly, because when an earlier MA is rejected on the ground that no mistake as pointed out by the assessee in the order passed under S.254(1) of the Act was rejected, filing of another MA raising the very same points contained in the earlier one tantamount to seeking a review of the view taken in the order passed on the earlier MA. It is pertinent to refer to the provisions of S.254 of the Act, which to the extent relevant for our purpose, read as follows- "Orders of Appellate Tribunal. 254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate ....
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....(1) which contemplates reference of a question of law arising out fo the orders of the Tribunal passed under S.254(1) of the Act, Hon'ble A.P. High Court, besides examining the scope of rectification contemplated under S.254(2) of the Act, also examined/rejected the maintainability of an application of a reference under S.256 of the Act against an order passed under S.254(2) of the Act, and decided the matter in the following manner- "A reference lies from orders under section 254(1) or final orders made under section 254(2) of the Income-tax Act 1961. In the latter case, the order which may be subject to a reference under section 256(1) will be only be an order passed by the Tribunal amending its earlier order rectifying the mistake bro....
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.... of the order passed under S.254(1) of the Act. For these reasons, present application of the assessee for rectification of either the order dated 22.3.2013 in the appeal or the order dated 27.1.2014 in MA, is not maintainable. 7. Even on merits, the point in dispute in the appeal before the Tribunal is whether the assessee is developer or a works contractor. After elaborate consideration of the matter, the tribunal with certain directions set aside the issue to the file of the Assessing Officer for determination of the matter afresh after due verification of the material on record and the arguments of the assessee in that behalf. It is the case of the assessee that since all the material is available on record, the Tribunal itself shoul....
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.... a mistake susceptible to rectification under S.254(2) of the Act. Similarly, when the Tribunal rejected the earlier application of the assessee under S.254(2) of the Act, it again went into several aspects of the matter raised by the assessee before it, and ultimately rejected the same, holding that what the assessee is seeking is a mere review and not rectification of any mistake apparent from record. Assessee is seeking a mere review of this order of the Tribunal on its earlier application under S.254(2) of the Act. Since such a review, whether in the context of original order dated 22.3.2013 or order in MA dated 27.1.2014 is not permissible in these proceedings for rectification under S.254(2) of the Act, we find no merit in the present....