TaxTMI 
TaxTMI 
2023 (5) TMI 780
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.... dated 21.06.2019. The revenue has filed a petition against the ITA order with the following grievances. "5. From the perusal of the records it is noticed that some miscalculation has arisen in this case which needs attention of the Hon'ble Bench; a) The Hon'ble bench followed its own composite order in the case of the assessee for the A.Y. 2008-09 to 2010-11 which itself had some infirmities in calculation which resulted in revenue loss to the department for the A.Y. 2008-09 and 2012-13 and again in the present year under consideration i.e. 2013-14. b) In the said order the Hon'ble Bench applied the profit rate of 38.23 % to gross purchase (following the working of Ld. CIT (A) while the Ld. CIT(A) vid....
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.... f) The profit rate applied by the Ld. CIT(A) in his order date 03.03.2014 vide para 6.9 to net purchase ; -on higher side as the profit when calculated as percentage of gross amount of sale will be substantially low. In view of the apparent errors and omission as discussed above it is humbly requested that the order passed by the Hon'ble Bench may kindly be suitably amended." 2. The ld. Counsel for assessee placed that the bench already discussed the issue in the ITA 513/Asr/2017 para no. 3 which is extracted as below: "3. Having heard the parties and perused the material available on record. We have realized from the impugned order that the Ld. CIT(A) not only considered and respectfully followed the judgment of....
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....jab & Haryana High Court in the case of Popular Engg. Co Vs. Income-tax Appellate Tribunal reported in 119 Taxmann 51 has held as under: "Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of - Assessment year 1992-93 - Tribunal approved speaking order of first appellate authority allowing petitioner's appeal against Assessing Officer's disallowance of petitioner's claim for deduction under section 80HHC - Subsequently, it recalled its order under section 254(2) on ground that department's plea had not been considered on merits - Whether under section 254(2), Appellate Tribunal is empowered to amend any order passed by it under section 254(1) in order to rectify any mistake apparent from record but it has no powe....
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....d that it had, in fact, done so. Thus, there was no reason to interfere with the decision of the Tribunal. Accordingly, the appeal was to be dismissed, (please refer page no 20-28 of judgement set" 4. We respectfully relied on the order of Apex Court, CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC). The observation is extracted as below:- "4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either ....
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....er and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erro....