Case Law Details
RELEVANT PARAGRAPH
7. Ld. Sr. Counsel appearing for the assessee has contended that the Tribunal in its appellate order has cited two Supreme Court decisions in Royal Hatcheries V. State of Andhra Pradesh. AIR 1994 SC 666 and in M/s.Sil Import USA Vs. M/s.Exim Aides Silk Exporters, AIR 1999 SC 1609, 1612-13, without confronting the assessee at the time of hearing of the appeal before the Tribunal, and therefore, it amounts to mistake apparent from the record in the order of the Tribunal. We for the sake of clarity reproduce the relevant portions of the order of the Tribunal wherein these two decisions of the Supreme Court were cited by the Tribunal:-
Para No.38: “The Ld. Sr. Counsel, however, contends that the words “such as” in Item No.2 are always words of limitation. We are unable to agree with him. At page 3129 in the second volume of “The New Shorter Oxford English Dictionary” (1993 Edition), the meaning of the words “Such as” is given as “for example”. In Royal Hatcheries V. State of Andhra Pradesh. AIR 1994 SC 666, it has been held at page 668 of the said report that “the words “Such as” indicate that what are mentioned thereafter are only illustrative and not exhaustive”. At page 670 of the said Report, it is stated: “So far as words “such as” are concerned, there is no dispute that they are meant to be illustrative and not exhaustive.” At page 671 of the said Report, the terms “viz.” and “etc.” have been interpreted thus: “The opinion of Viscount Finlay shows that the expression “Viz.” stands for “videlicet”, which means “to wit” or “that is to say”. These words are generally understood as words of limitation. Regarding the meaning of the word “etc.”, it was observed that the word “etc.” is absolutely different from “et alia” and that it means “all the rest”.”
Para No.40: – – – – – – — – – – – – – – – – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – In this view of the matter, the mere fact that Gutkha or pan masala containing tobacco is specifically not included in the Eleventh Schedule inserted in 1977 wef 1.4.1978 will not make any difference and thus will not advance the cause of the assessee. The view that we have taken in the matter is supported by the principle laid down in M/s. Sil Import USA Vs. M/s.Exim Aides Silk Exporters, AIR 1999 SC 1609, 1612-13, in which the Hon’ble Supreme Court, in the context of the service of notice u/s.138 of the Negotiable Instruments Act, has held as under:-
“Francis bennion in “Statutory Interpretation” has stressed the need to interpret a statute by giving allowance for any relevant changes that have occurred, since the Act’s passing, in law, social conditions, technology, the meaning of words and other matters.
For the need to update legislations, the Courts have the duty to use interpretative process to the fullest extent permissible by the enactment. The following passage at page 167 of the above book has been quoted with approval by a three judge Bench of this Court in State V. S.J.Choudhary, 1996 AIR SC 1128 at page 1131:
“It is presumed that Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction) . While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.”
We find that the Hon’ble Supreme Court interprets and lays down the law and interpretation given by the Hon’ble Supreme Court becomes the law of the land. Every person is supposed to know the law of the land as laid down by the Hon’ble Supreme Court. The parties appearing before the Tribunal are rather obliged to assist the Bench by citing the relevant case laws on the issue. The Supreme Court in these cases referred to by the Tribunal in its appellate order and reproduced above, has stated the law and has laid down the principles of law. In this case before us, the Tribunal has merely cited the principles of law as already laid down by the Hon’ble Supreme Court, which could not be construed as mistake apparent from the record. We find that it is not the case of the assessee that the Tribunal in the case of the assessee has wrongly applied the law laid down by the Supreme Court in the decisions of the Hon’ble Supreme Court referred to above. In our considered view, perhaps if the Tribunal has wrongly applied the law laid down by the Hon’ble Supreme Court, in a given case it could be said that there is a mistake apparent from the record in the order of the Tribunal. Here in the case before us, the mere citing of the law as laid down by the Hon’ble Supreme Court in some cases, could not amount to mistake apparent from the record in the order of the Tribunal. No case has been made out by the assessee that the Hon’ble Supreme Court decisions have been wrongly applied to the case of the assessee, hence, some prejudice has been caused to either of the parties before the Tribunal. In these facts of the case, we hold that no mistake apparent from the record could be made out by the assessee in the order of the Tribunal on this issue.
We consider it relevant to reproduce the decision of the Hon’ble Rajasthan High Court on this issue in the case of Raja Baldeodas Birla Santati Kosh v. Commissioner of Income Tax 158 ITR 601, 603 (Raj.) as under:-
“The Tribunal could refer to a decision of the Supreme Court, which is the law of the land, if the same is relevant to the subject-matter of decision by the Tribunal, irrespective of the fact that the said decision was not referred to by learned Counsel appearing for either party before the Tribunal. The order of the Tribunal, in which such decision of the Supreme Court has been referred to, cannot be held to have been passed in disregard of the principles of natural justice or the provisions of the Income-tax Act or the Rules made thereunder. Learned Counsel was unable to show as to how the assessee was prejudiced by the fact that the Tribunal referred to the decision in Sardar Bahadur S. Indra Singh Trust’s case [1971] 82 ITR 561, in its order dated March 31, 1978. There is nothing illegal in the procedure adopted by the Tribunal in referring to a decision of the Supreme Court, though the same may not have been cited before it by learned Counsel for either party, when the Tribunal thought that it was relevant to the subject-matter of decision.”
In accordance with the ratio of decision of Hon’ble Rajasthan High Court on this issue in the case of Raja Baldeodas Birla Santati Kosh v. Commissioner of Income Tax (supra), we hold that the order of the Tribunal could not be held to have been passed in disregard of the principles of natural justice or the provisions of the Income-tax Act or the Rules made thereunder and we hold that there is no mistake apparent from the record in the order of the Tribunal.
8. We find that no mistake in the order of the Tribunal could be shown by the assessee. It is well established that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Income Tax Act, 1961. The jurisdiction of the Tribunal is limited to rectify any mistake in its order, which is apparent from record as per the provisions of Sec.254(2) of the Act. The scope and ambit of an application u/s.254(2) is very limited. The mistake sought to be rectified should be obvious and patent mistake which is apparent from the record and not a mistake which is required to be established by arguments and a long drawn process of reasoning on points on which there may possibly be two views. A patent, manifest and self evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be a mistake apparent from the record and can be rectified u/s.254(2) by the Tribunal. The decision on a debatable issue is not a mistake apparent from the record. The mistake which the Appellate Tribunal is entitled to correct, is not an error of judgement but a mistake which is apparent from the record itself. In Asst. CIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC), Hon’ble Apex Court held:
“Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality.
A patent, manifest and self-evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error can not be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgement is correct or not. An error apparent on the record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgement is one of possible views, the case can not be said to be covered by an error apparent on the face of the record.”
9. We find strength in the argument of the Ld. DR that the subsequent Bench of Tribunal could not go into the merits of the decision of the earlier Bench of the Tribunal. In CIT Vs. Ramesh Electric and Trading Co. 203 ITR 497, Hon’ble jurisdictional High Court held as under:-
“It is an accepted position that the Tribunal does not have any power to review its own order 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 Sec.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 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 judgement. The Tribunal can not, in the exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion.”
10. We find that the issue of allowability of deduction u/s.80-I and 80-IA on `Gutka’ and whether the `Gutka’ is a tobacco preparation has been dealt with elaborately in order of the Tribunal on merits on the basis of facts of the case and the law applicable thereto. After careful consideration of the facts of the case and the applicable case laws cited by the parties at the bar and respectfully following the decision of Hon’ble jurisdictional High Court in the case of Ramesh Electric and Trading Co. (supra), we have no hesitation in holding that no mistake has occurred in the impugned order of the Tribunal much less than the mistake apparent from the record and accordingly, the Miscellaneous applications preferred by the assessee u/s.254(2) of the Act does not succeed and are accordingly dismissed.
