H.L. Karwa, J.M. - (1.) IN this miscellaneous application under Section 254(2) of the IT Act, 1961, the assessee has prayed that mistakes apparent from the record may kindly be rectified. The contents of this application are reproduced hereunder: "The applicant respectfully submits as Under: (1) ITA No. 127/Asr/1994 filed by the Revenue in the above-noted case has been decided by order dt. 24th April, 2000. (2) The appeal of the Revenue has been allowed on the basis of certain observations which are factually not correct and certain facts have been wrongly recorded probably by an oversight. Para 17 of the Tribunal order reads as under : "IN his case, from the explanation of the assessee, the urgency of disbursing bonus on 8th March, 1991, does not seem to be plausible as the same could have been disbursed even on the next day also because in case the assessee had taken the amount by crossed payee cheque, the amount of the same could have been realised by the assessee the next day because if we consider the address and the bank accounts of assessee and that of M/s Singh Finance and INvestment Co. (P) Ltd. Amritsar, from whom loan of Rs. 1,00,000 is taken by the assessee, both are operating their business in Amritsar and as the learned Departmental Representative has even mentioned in the original grounds of appeal, the assessee and M/s Singh Finance and INvestment Co. (P) Ltd., who had given a loan of Rs. 1,00,000 to the assessee were having their bank accounts in the same bank and during the course of arguments, the fact has not been controverted by the assessee. Even presuming that the assessee wanted the realisation of the amount of the bearer cheque on 8th March, 1991, itself i.e., the date of issue of the cheque, even then acceptance of loan amount of Rs. 1,00,000 through bearer cheque was not justified because in case the assessee had accepted the payment through crossed account payee cheque/draft and since both the parties were having accounts in the same bank, proceeds of the cheques could have been very easily realised on the date of presentation itself i.e., 8th March, 1991, because the bank was only to pass debit entry in the accounts of the assessee and M/s "Singh Finance & INvestment Co, (P) Ltd., the credit entry in favour of the assessee, which could have been easily done during the working hours of the bank, on the same day, Hence, we conclude that in the existing circumstances of the case of the assessee, the CIT(A) has failed in appreciating that there was absolutely no urgency in accepting the bearer cheque for disbursing the bonus to its workers by the postponed for at least one more day for making the payment to its workers. The learned CIT(A) has further failed in appreciating that since both the parties were operating and had their bank account in the same bank and so even the realisation proceedings of cheques issued on 8th March, 1991, could have been done on the same day and so there was no justification in accepting the bearer cheque in violation of Section 269SS of the IT Act, 1961." (3) The correct facts are as under : (i) The name of the finance company is M/s Singh INvestment and Hire Purchase Private Limited and not M/s Singh Finance and INvestment Company (P) Ltd. as noted in the order. The correct name of the finance company is given in para 4 of affidavit of S. Balbir Singh filed before the AO with copy at p.1 of paper book. (ii) The observation that the assessee-company had account with the same bank is also not correct, nor it is borne out from the record. The correct position is that the assessee-company and the said finance company did not have accounts in the same bank. The finance company gave cheque No. 925744, dt. 8th March, 1991, drawn on New Bank of INdia, Branch Queens Road, Amritsar. The assessee-company had no bank account with that branch or that bank. The amount was returned to the finance company by assessee-company by its payee account cheque dt. 28th June, 1991, drawn on Bank of INdia, Branch Vijay Nagar, Amritsar. Certificate of the finance company is enclosed. (iii) To Revenue had filed revised grounds of appeal and, therefore, had not referred to or argued its original grounds of appeal. There was no argument that the assessee-company and finance company had the accounts in the same bank. (iv) Since both the parties were not having accounts in the same bank, the money could not become available to the assessee-company on 8th March, 1991. (v) The Hon'ble Bench has not taken the note of the fact that 8th March, 1991, was Friday and, therefore, the money could not become available before 11th or 12th March, 1991, if the loan was taken by payee account cheque. (vi) It was clearly explained in the assessee's letter dt. 11th Dec., 1991 (pp. 3 and 4 of the paper book), and affidavit of S. Balbir Singh (p. 1 paper book) that the workers had threatened to close the factory if the bonus was not distributed immediately and they were promised about the distribution of bonus in first week of March, 1991. From all the evidence on record the urgency of raising loan of Rs. 1,00,000 on 8th March, 1991, is clearly proved and the Hon'ble Bench has misdirected itself on the wrong presumption that the assessee and the finance company had their accounts in the same bank which is not a correct fact. (4) Further attention is invited to paras. 19 to 21 of the Tribunal order. The urgency of accepting Rs. 92,000 by cash from the promoters has not been appreciated on the correct facts. The mistakes are as under: (i) The cheques of excise duty are sent to the Chief Accounts Officer, Chandigarh. The cheques are sent against clearance of goods and if the cheques are bounced in due course then the goods are deemed to have been cleared without the payment of excise duty, making the assessee liable for prosecution. (ii) Outstation cheques are generally presented in the bank of the drawer after about two weeks. However, the exact date is never known. (iii) Sufficient bank balance had been there in the bank account of the assessee on number of dates, (copy of bank statement at p. 11 of paper book) but when the cheques were received in the bank on 5th Dec., 1990, then the balance was not there and therefore, cash of Rs. 92,000 had to be arranged. (iv) If the cheques were presented earlier then the sufficient balance was there and excise cheques would have been cleared. The cheques issued by the assessee-company were generally cleared against the payments received but being a sick company, the finance position remained always tight. (v) The question for decision before the Hon'ble Bench was not what the assessee could have done earlier. The real question was whether the assessee was justified in arranging cash loan of Rs. 92,000 on 5th Dec., 1990, to meet the liability of excise cheques of Rs. 91,338 presented on that date and to save the cheques from being bounced. It is, therefore, humbly requested that the above mistakes being apparent from record may very kindly be rectified and in view of the correct facts and evidence on record the penalty of Rs. 1,92,000 be kindly cancelled."
(2.) Before us, Shri Sudershan Kapoor, advocate, the learned counsel for the assessee has reiterated the submissions stated in the above application. He further submitted that the assessee had raised a loan of Rs. 1,00,000 from a finance company, M/s Singh Investment and Hire Purchase (P) Ltd., Amritsar, by cheque No. 925744, dt. 8th March, 1991, which was drawn by the lender company on its account with New Bank of India, Queens Road Branch, Amritsar. Shri Kapoor vehemently stated that the assessee had no account with New Bank of India. He further pointed out that the loan was returned to the aforesaid company by payee account cheque, dt. 28th June, 1991, drawn on Bank of India, Vijay Nagar Branch, Amritsar, where the assessee had account. It is stated that the findings arrived at by the Tribunal are contrary to the evidence placed on record. Accordingly, it was stated that the mistake apparent from the record (stated in the above application) should be rectified. On the other hand, Shri S.C. Pahwa, the learned Departmental Representative, submitted that no power vested in the Tribunal under Section 254(2) of the Act can be exercised only for rectifying a mistake apparent from the record and not for reviewing any order made under Section 254(1) of the Act. It was pointed out that the order dt. 24th April, 2002, passed in ITA. No. 127/Asr/1994 did not suffer from any mistake apparent justifying its review. It is sjated that law is well established on this point that order passed by the Tribunal under Section 254(1) cannot be reviewed under the garb of rectification. Shri S.C. Pahwa, the learned Departmental Representative, invited our attention to the latest decision of the Hon'ble Supreme Court in the case or Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. AIR 2001 SC 43, wherein it has been held that there is no provision in the Cr.PC authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Therefore, the High Court was not justified in reviewing its order under Section 482 of Cr.PC. According to the learned Departmental Representative in the IT Act also no power has been given to the Tribunal to review its own order and, therefore, in view of the above judgment, the Tribunal cannot review its own order under Section 254(2) of the Act. He further pointed out that the findings given by the Tribunal vide para 17 of the order is regarding the question as to whether there was sufficient cause which lead to the failure on the part of the assessee in complying with the provisions of Section 269SS of the Act. The Tribunal has mentioned number of circumstances, which proved that the assessee failed to show that there was a reasonable cause for the failure. Shri S.C. Pahwa, the learned Departmental Representative, further pointed out that the members of the Bench, who passed the order have made certain observations in the order, these observations could not be ignored and it could also not be said that these observations are without any basis. 3.1. Shri S.C. Pahwa, the learned Departmental Representative, drew our attention to the following observations made by the Tribunal: "The assessee and M/s Singh Investment were having their bank accounts in, the same bank and during the course of arguments, this fact has not been controverted by the assessee." Shri S.C. Pahwa, the learned Departmental Representative, submitted that the above observations cannot be simply ignored and this Bench of the Tribunal has no legal right to say that the above observations are factually incorrect. He submitted that the findings given cannot be reviewed under the garb of rectification.
(3.) WE have carefully considered the rival submissions and have also gone through the contents of the above application as well as the order of the Tribunal dt. 24th April, 2000. From the above findings of the Tribunal (reproduced by the assessee in its application), it would be clear that the order has been passed after considering the facts of the case as well as the evidence existing on record. It is true that certain contentions of the Departmental Representative recorded in the order are not controverted by the assessee at the time of hearing of the appeal, as it has been stated in the order of the Tribunal. At this stage, it cannot be said that what kind of arguments the assessee advanced at the time of hearing of original appeal before the Members, who were sitting on the Bench. It is true that both of us were not the party to the order dt. 24th April, 2000. It is also true that the Tribunal has given numerous reasons for reaching at the conclusion that the assessee could not establish that there was sufficient cause for its failure. After carefully going through the order of the Tribunal, it cannot be said that the order was not passed keeping in view the material or evidence existing-on-record, Even as regards the name of finance company it would be clear that the AO has mentioned the name of finance company as M/s Singh .Finance and Investment Co. (P) Ltd., Amritsar. It seems that the assessee has never pointed out before the authorities below that correct address of the finance company was "M/s Singh Investment and Hire Purchase (P) Ltd." In our view, even if it is assumed that the name of the finance company was not correctly stated by the AO the same cannot be rectified at this stage. The proper course for the assessee was to file an application before the AO for showing the correct address of the finance company. It would also be relevant to state that while deciding the appeal of the assessee, the main issue before the Tribunal was that whether there was sufficient cause for assessee's failure to comply with the provisions of Section 269SS of the Act. For the argument sake, if it is accepted that name of the finance company was wrongly mentioned in the penalty order or in the order of the Tribunal even then it does not affect the final outcome of the case. In our considered view, there is substantial force in this contention of the learned Departmental Representative that under Section 254(2) of the Act, the Tribunal has no power to review its own order. Even if it is assumed that certain vital points were not properly appreciated by the Tribunal; the Tribunal under Section 254(2) of the Act has no power to readjudicate the issue. It is an admitted position that under the IT Act, the Tribunal has no power of reviewing its own order. The ratio laid down by the Hon'ble Supreme Court in the case of Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. (supra) is very clear on the point that if the statute does not contain powers for. review, then the power cannot be excercised. As we have already noted above that the Tribunal has no inherent power to review its own order on merits and, therefore, we decline to retook into the matter as to whether there was a sufficient cause, which lead to the failure on the part of the assessee in complying with the provisions of Section 269SS of the Act.;