Hinduja Ventures Ltd , vs Assessee

INCOME TAX APPELLATE TRIBUNAL,MUMBAI - 'H' BENCH सव[ौी राजेÛि, लेखा सदःय एवं अिमत शुÈला, Ûयाियक सदःय Before S/Sh. Rajendra,Accountant Member & Shri Amit Shukla, Judicial Member MA No.277/Mum/2014 (Arising out of ITA No.1534/Mum/2012)-Assessment Year 2008-09 Hinduja Ventures Ltd., Add.CIT Range 8(2), 49/50, In Centre, MIDC, 12th Road, Aayakar Bhavan, M.M.Road, Marol, Andheri (East), Vs. Mumbai-400020 Mumbai-400093 PAN:AAACH2058N

(अपीलाथȸ /Appellant) (ू×यथȸ / Respondent) Appellant by : Shri Pradip Kedia (AR) Respondent by : Shri Vivek A. Perampurna सुनवाई कȧ तारȣख / Date of Hearing : 12-12-2014 घोषणा कȧ तारȣख / Date of Pronouncement : 16-01-2015 आदे श / O R D E R Per Rajendra, A.M.लेखा सदःय राजेÛि के अनुसार:

Vide its application, dated 08.05.2014, the assessee has stated that mistakes were apparent from the order of the Tribunal dated 26.03.2014 (ITA No. 1534/M/12 -AY 2008-09), that mistakes had crept in appellate order and same were to be rectified,that the Tribunal had not disposed ground no. 1.5 and ground no. 1.6,that in the assessment order satisfaction about invoking the provisions found to be pre-requisite of section 14A(2) was sweeping, that the satisfaction was not recorded by the Assessing Officer (AO), that primary requisition of Rule 8D was not fulfilled,that,the Tribunal had committed manifest error in converting the general and conjectural observations of the AO as 'specific' and germane to the Company,that the Tribunal had based its finding on a wrong assumption of facts.In its application the assessee has also referred to the decision of REI Agro Ltd.(ITA No.1811/Kol./2012)of Kolkata Bench.It was also mentioned in the application that the accounts/books of the Assessee were never called and verified to support the observations made in the assessment order.,that the ITAT in Para 6.1 of its order observed that that case relied upon by the Assessee are distinguishable on facts and hence not applicable to the facts of the case under appeal.

During the course of hearing the Authorised Representative(AR)of the assessee reiterated the same arguments that are part of the application filed u/s.254(2) of the Act.He further contended that without recording the satisfaction Rule 8D of the Income-tax Rules,1962(Rule) could not be applied. Departmental Representative(DR)stated that the assessee wanted review of the order in the name of rectification of the impugned order,that same was not permissible under the provisions of section 254(2)of the Act.

We have heard the rival submissions and perused the material before us.We find that the assessee had raised 1.1. to 1.9 grounds of appeal,while filing the appeal.In fact same were the different arguments of the same issue i.e.non recording of satisfaction by the AO before invoking the provisions of Rule 8D of the Rules.While deciding the appeal,the Tribunal has held that for recording satisfaction it was not necessary for the AO to use the words that he was not satisfied, that it should be apparent that he had applied his mind before rejecting the submission made by the assessee,that in the case under consideration the AO had given reasons as to why the 2 M.A.No.277/Mum/2014 Hinduja Ventures Ltd

explanation filed by the assessee was not acceptable.Considering these facts the Tribunal has remitted back the matter to the file of the AO for fresh adjudication. The provisions of section 254(2)have been incorporated in the statute for rectifying the mistakes that are apparent from the record.We are of the opinion under the provisions of the said section it is not permissible for an assessee to contend that the appellate order was vitiated on the ground that the Tribunal failed to discuss all the contentions raised by counsel before it and to give reasons for coming to the conclusion which it did. If assessee finds an order defective on this ground, the remedy lay elsewhere, and not by way of a Miscellaneous Application. It is said that the Income-tax Appellate Tribunal is a creature of the statute and it is not been vested with the review jurisdiction by the statute creating it. The Tribunal does not have any power to review its own judgments or orders.What assessee desires, in the case under consideration, is review of the order passed on in the grab of rectification application filed by it. The language of section 254(2) of the Act is very clear. The foundation for exercising the jurisdiction is 'with a view to rectify any mistake apparent on the record' and the object is achieved by 'amending any order passed by it'. In the case under consideration assessee wants reappraisal of the entire case. It is not possible under the provisions of Sec. 254(2) of the Act. As per the Hon'ble jurisdictional High Court, the power of rectification available to the Tribunal u/s. 254(2) of the Act, cannot be exercised on failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion because it is an error of judgment and not an error apparent on the record.(203 ITR 497 and 323 ITR 577).Here.we would like to reproduce the relevant part of the judgment of Ramesh Electricals(203ITR497)and same reads as under:

"Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, "with a view to rectifying any mistake apparent from the record", amend any order passed by it under sub-section (1) within the time prescribed therein. It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record.

This is merely a power of amending its order. The power of rectification 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 requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. 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 judgment. The Tribunal cannot, in the exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion." The remedy available to the assessee was to approach the Hon'ble jurisdictional High Court. But,it preferred to file an application 254(2)of the Act.As there is no mistake apparent in the order of the Tribunal and it cannot review its own order,so,we are rejecting the application filed by the assessee.

As a result,MA filed by the assessee stands dismissed.

पǐरणामतः िनधा[ǐरती Ʈारा दाǔखल Ǒकया गया ǒवǒवध आवदे न पऽ अःवीकृ त Ǒकया जाता है . Order pronounced in the open court on 16th, January,2015.

आदे श कȧ घोषणा खुले Ûयायालय मɅ Ǒदनांक 16 tuojh 2015 को कȧ गई ।

Sd/- Sd/- (अिमत शुÈला / AMIT SHUKLA) (राजेÛि / RAJENDRA) Ûयाियक सदःय / JUDICIAL MEMBER लेखा सदःय / ACCOUNTANT MEMBER मुंबई/Mumbai,Ǒदनांक/Date: 16.01.2015 SK आदे श कȧ ूितिलǒप अमेǒषत/ षत Copy of the Order forwarded to : 1. Assessee /अपीलाथȸ 2. Respondent /ू×यथȸ 3 M.A.No.277/Mum/2014 Hinduja Ventures Ltd

3.The concerned CIT(A)/संबƨ अपीलीय आयकर आयुƠ, 4.The concerned CIT /संबƨ आयकर आयुƠ

5. DR "H" Bench, ITAT, Mumbai /ǒवभागीय ूितिनिध ,p खंडपीठ,आ.अ.Ûयाया.मुब ं ई

6. Guard File/गाड[ फाईल स×याǒपत ूित //True Copy// आदे शानुसार/ BY ORDER,

उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपीलीय अिधकरण, मुंबई /ITAT, Mumbai