TaxTMI 
TaxTMI 
2021 (1) TMI 400
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....idered for deciding these Miscellaneous Applications en masse. 3. The cases of the assessee in this Miscellaneous Applications is that assessee has claimed deduction under section 80IB(10) of the Act, however the Tribunal observed that deduction under section 80IB shall be calculated on the gains derived for such undertaking and same cannot exceed the profit derived for said undertaking. The said observation of the Tribunal is at variance with decision of ACIT V. Goldmine Shares & Stock Finance Pvt. Ltd. [2008] 113 ITD 209 (Ahd) (SB] wherein was held that the deduction would be limited to gross total income and not to profit. The Tribunal, while adjudicating the assessee`s appeal, has not considered the decision in the case of Goldmine Shares & Stock Finance Pvt. Ltd.(supra), hence this is a mistake apparent in the order of the Tribunal which needs rectification. 4. Shri S.D. Chheda, Learned Counsel for the assessee submitted before the Bench that the issue in the miscellaneous application is deduction u/s 80IB(10) of the Act, being notional carried forward unabsorbed deduction, as eligible unit was having a profit and ineligible unit having a loss in earlier year and w....
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....nished and the case laws relied upon. We find merit in the submissions of Ms Anupama Singla, ld DR for the Revenue, as she has rightly pointed out that Tribunal in its order dated 10.08.2018 has considered the judgement of ACIT vs. Goldmine Shares & Stock Finance Pvt. Ltd. [2008] 113 ITD 209 (Ahd) (SB) vide para no.4 and para 10 of the Tribunal order. At the cost of repetition, we reproduce an important part of para 10 of the Tribunal order, which reads as follows: "We find that the deduction under section 80IB shall be calculated on the gains derived for such undertaking and same cannot exceed the profit derived for said undertaking. We also observe that in the case of decision of ACIT V. Goldmine Shares & Stock Finance Pvt. Ltd. [2008] 113 ITD 209 (Ahd) (SB ) it has been held that deduction will be limited to gross total income. In our humble understanding of provisions of the Act and considering the provision of section 72 of the Act, we are of the view that the CIT (A) has justified in refusing the claim of the assessee." Thus, it is not the case of the assessee in this miscellaneous application that Tribunal has not considered the judgment cited by the assessee dur....
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....ection 254(2) of the Act, does not mean entire obliteration of order originally passed by the Tribunal and its substitution by a new order of Tribunal, this is not permissible under section 254(2) of the Act. Power to rectify an order, under section 254(2) of the Act is extremely limited and it does not extend to correcting errors of law, or reappreciating factual findings. Shri S.D. Chheda, Learned Counsel, argued and did a lot of debate before the Bench stating that although the Tribunal has considered the facts of the assessee`s case and also considered the binding judgement in the case of ACIT V. Goldmine Shares & Stock Finance Pvt. Ltd(supra), but reached on wrong conclusion which is against the assessee. Had the Tribunal considered the binding judgement in the case of ACIT V. Goldmine Shares & Stock Finance Pvt. Ltd(supra), in right perspective, the conclusion/decision reached by the Tribunal would have been in favour of assessee. 8. We do not agree with the ld Counsel, as the Tribunal has considered the decision of ACIT vs. Goldmine Shares & Stock Finance Pvt. Ltd(supra) cited by the assessee during the hearing and also considered the entire facts of the assessee`s ....
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....ster Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. A similar view was also expressed in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137. It is to be noted that the language used in Order 47, Rule 1 of the Code of Civil Procedure, 1908 is different from the language used in section 254(2) of the Act. Power is given to various authorities to rectify any 'mistake apparent from the record' is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of 'an error apparent on the face of the record'. Mistake is an ordinary word, but in taxation laws, it has a special significance. It is not an arithmetical or clerical error alone that comes within its purview. It comprehends errors which, after a judicious probe into the record from which it is supposed to emanate, are discerned. The word 'mistake' is inherently indefinite in scope, as what may be a mistake for one may not be one for another. It is mostly subjective and the....
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....he normal rule is that the remedy by way of review is a creature of the statute and, unless clothed with such power by the statute, no authority can exercise the power. Review proceedings imply proceedings where a party, as of right, can apply for reconsideration of the matter, already decided upon, after a fresh hearing on the merits of the controversy between the parties. Such remedy is certainly not provided by the Income Tax Act, 1961, in respect of proceedings before the Tribunal." 4.2 In similar situation, while dealing with the rectification, the Hon'ble Andhra Pradesh High Court in the case of CIT and Anor vs. I.T.A.T and Anor (206 ITR 126 has held as under: "The appellate Tribunal, being a creature of the statute, has to confine itself in the exercise of its jurisdiction to the enabling or empowering terms of the statute. It has no inherent power. Even otherwise, in cases where specific provision delineates the powers of the court or Tribunal, it cannot draw upon its assumed inherent jurisdiction and pass orders as it pleases. The power of rectification which is specifically conferred on the Tribunal has to be exercised in terms of that provision. ....
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....on under section 254(2) can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record and not a mistake which required to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinion. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgments........................" 4.4 We also draw support here from Hon'ble Madras High Court decision in T.C.(A) No. 156 of 2006 dated 21.08.2007 in the case of CIT Vs. Tamil Nadu Small Industries Development Corporation Ltd. wherein the Hon'ble High Court held as under:- "The Tribunal has no power to review its order. When the Tribunal has already decided an issue by applying its mind against the assessee, the same cannot be rectified under Section 254 (2) of the Act. There was no necessity whatsoever on the part of the Tribunal to review its own order. Even after the examination of the judgments of the Tribunal, we could not find a single reason in the whole order as to how ....