ORDER
M.K. Chaturvedi, Vice-President
1. By this miscellaneous petition, the assessee claims that a mistake has crept into the order of the Third Member of the Tribunal in I. T. A. No. 2999 and 3000/Mumbai of 1999, dated July 15, 2003 (see [2005] 272 ITR (AT) 103) and requests that the mistake may appropriately be rectified either by recalling the order or otherwise.
2. We have heard the rival submissions in the light of the material placed before us and precedents relied upon. It was submitted that the order passed by the Third Member expressing an opinion on an aspect on which there was no difference of opinion constitutes a mistake of fact and law that is apparent from the record. Reference was made to para. 21 (page 118) of the impugned order. It was submitted that these observations are likely to unnecessarily prejudice the minds of the revenue authorities while giving effect to the order of the Tribunal for the earlier assessment years for which assessments have been reopened by the Assessing Officer. These observations also amount to in a sense prejudging the issue of penalty under section 271(1) (c) of the Act, even before it is levied and dealt with by the revenue authorities.
3. It was further stated that the Third Member did not resolve the dispute between the Accountant Member and the Judicial Member, whether such interest could be alternatively allowed as a deduction under section 28 or section 37 of the Act. Whereas the Accountant Member has considered the claim of the assessee under sections 28, 36(1)(iii) and 37 ; the Judicial Member has confined himself to section 36(1) (iii) only. The Third Member also not considered the aspect that the revisional power under section 263 cannot be exercised in respect of a matter, which falls within the power to assess escaped income. The revising authority should not trench upon the powers, which are expressly reserved to the Assessing Officer under section 147 of the Act.
4. The learned Departmental Representative submitted that the core of the controversy was duly adjudicated by the Third Member. In para. 22 (page 119) it is clearly laid down that the expenditure in question was incurred for the acquisition of the property. No other purposes can be ascribed for the payment of such interest. As such, it cannot be construed to be an expenditure of revenue nature. This aspect was not enquired by the Assessing Officer. As such mistake was had in the order, which was prejudicial to the interests of the Revenue.
5. The question posed before the Third Member was :
“Whether, on the facts and in the circumstances of the case, the learned Commissioner of Income-tax is justified in assuming the jurisdiction under section 263 of the Income-tax Act and, thereafter setting aside the order of the Assessing Officer ?”
6. To decide the aforesaid issue, all the factual details were considered. The finding given in para. 21 (page 118) is contextual. It was found that conditions precedent for assuming jurisdiction under section 263 of the Act did exist in the facts and circumstances of the present case. As such, there was no trench upon the powers reserved under section 147 of the Act. On the aspect of assumption of jurisdiction under section 263 of the Act, there was a difference of opinion and to resolve that difference all the relevant facts were taken into consideration. Therefore, it is not correct to say that the Third Member expressed an opinion on an aspect on which there was no difference. The finding was rendered only to resolve the difference. These cannot be construed to be uncalled observations. The observations contained in para. 21 (page 118) were made after taking into consideration the totality of facts. As per the mandate of section 254(2) of the Act, the scope and the extent of power of rectification is limited. Only apparent errors can be corrected within the ken of this section. It is well settled that section 254(2) of the Act, which empowers the Tribunal to amend any order passed by it under section 254(1) with a view to rectify a mistake apparent from the record, does not authorise the Tribunal to review its order or even worse, to sit in appeal over its earlier order. The Tribunal is a creature of the statute. It has not been vested with the review jurisdiction by the statute creating it. The Tribunal does not have any power to review its own judgment or orders. The prayer of learned counsel is for reviewing the decision of the Tribunal. No apparent error was pointed out. In the circumstances, we find that this application is inutile and futile and suffers summary rejection. Ex consequenti, we hold that there is no merit in the application, as such we reject the same.
7. In the result, miscellaneous application stands rejected.