Tribunal has no power to review its own orders adjudicated on merits

RELEVANT PARAGRAPHS:

6.9 Right to review is a creature of statute as is right of appeal. The income-tax Act does not confer any power on the appellate authority, to review its own order. A review is not a substitute for an appeal, as held by the Rajasthan High Court in Jaipur Finance & Dairy Product (P) Ltd. v. CIT (1980) 18 CTR (Raj) 324; (1980) 125 ITR 404 (Raj). The Rajasthan High Court in CIT v. Globe Transport Corporation (1991) 93 CTR (Raj) 121; (1992) 195 ITR 311 (Raj) observed that the power of review is not inherent in a court or Tribunal, it is a creature of the statute; a Court or Tribunal cannot review its own decision unless it is permitted to do so by statute. The Courts or Tribunals of limited jurisdiction  created under special statutes have not inherent power of review. In the present case, the assessee sought to review the order of the Tribunal passed on merit. Thus, its subject matter is not covered by the provisions of the section 254(2) of the Act.

7. All the three issues raised by the assessee, in the impugned Miscellaneous Application have been dealt with after appreciation of the factual and legal position of the case and adjudicated on merit. Therefore, these grounds mentioned, in the Miscellaneous Application, do not fall under the purview of the provisions of section 254(2) of the Act. The provisions of the section contemplate to rectify any mistake apparent from record and non-consideration of any argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgment and the same cannot be rectified u/s. 254(2) of the Act, as held by the Hon’ble Jurisdictional High Court in the case of CIT vs. Ramesh Electric & Trading Co. (1993) 203 ITR 497,502 (Bom). In the present case, the claim of deduction made by the assessee has been considered by the bench but not found admissible, in view of the decisions of the Supreme Court discussed (supra).  Such decisions of non-allowance of deduction, on the basis of conclusion arrived after following the decisions of the Supreme Court are not covered under the said provisions of the Act. The reason is that merely because the Tribunal has considered and has not allowed a deduction, even if the conclusion is wrong, that will be no ground for moving an application u/s. 254(2) of the Act, unless it can be said that there is a mistake apparent from record, as held by the Hon’ble Delhi High Court in the case Gay ways Publicity Pvt Ltd. vs. CIT (1995) 211 ITR 506 (Del). In the present case, there doesn’t exist any legal or factual mistake, apparent from record and the assessee has merely sought to rectify the impugned Tribunal’s order, on the basis of different view conceived by the assessee, in respect of all the three grounds of the said Miscellaneous Application. It is further added that all the three grounds of the impugned Miscellaneous Application are debatable questions, not mistake apparent from record and, hence, are not amenable to rectification jurisdiction conferred on the Tribunal u/s. 254(2) of the Act. It is a settled legal proposition that in the garb of Miscellaneous Application for rectification, the assessee cannot be allowed to re-open the whole matter, which is beyond the scope of section 254(2) of the Act, in the absence of any manifest error, which is obvious, clear and self evident. Thus, the Tribunal is not competent to recall its previous order and re-write the same again and reverse the earlier decision taken on merit What can be rectified under the said section is a mistake apparent from record and not the mistake which needs elaborate reason or inquiry to establish the same. Similarly, where two opinions are possible, such a situation do not fall under the provisions of section 254(2) of the Act, as held by the Hon’ble Punjab & Haryana High Court in the case of CIT vs. Vardhman Spinnings 226 ITR 296 (P&H). Thus, it is clear that the power so conferred does not contemplate a re-hearing which would have the effect of re-writing an order, affecting the merits of the case, as sought by the assessee, in the present case. There is e difference between a power to review and a power to rectify a mistake apparent from record. In a nut-shell the scope of such power of rectification, in exercise of jurisdiction u/s 254(2) of the Act, clearly contemplates what can be corrected is an apparent mistake from record and not to deal with merits of the case and to recall the order, on the basis of taking a second opinion, on the merit, which is not the scope of such rectification. The scope of section 254(2) is very limited and it is only the apparent error, which can be rectified, and the Tribunal can be held to be justified in rejecting the application for rectification raising a matter relating to the merit of the case and not involving an apparent mistake to be rectified as held in the case of Praksh Chand Mehta vs. CIT, 220 1TR 277 (M.P). It is further added that section 254(2) of the Act vests a discretionary power on the Tribunal and does not confer a right on the assessee and further there is no inherent power conferred on the Tribunal of reviewing its own decision, taken on merits, as held by the Supreme Court in the case Patel Nareshi Thakershe vs. Pradyum Singhji Arjun Singhji (AIR 970 SC 1273). The Income Tax Act has not conferred jurisdiction on the Tribunal to review and revise its order, as the Tribunal is not a Court and it has no power to review its own orders adjudicated on merits. In view of the above legal and factual discussions, all the three issues raised by the assessee in the impugned Miscellaneous Application are dismissed.