Judgment:
1. This is the third misellaneous application filed by the assessee as arising out of the Tribunal's order dated 28th April, 1994 passed in ITA No. 1652 of 1989.
2. The brief facts giving rise to the present application are that one of the issues raised in the appeal was with regard to the disallowance made under section 40A(8) of the Income-tax Act. It was the case of the assessee that even if disallowance is required to be made, then the amount of interest which is periodically credited to the account of the creditor is not a 'deposit' and, therefore, in calculating the disallowance under the said section, this interest element should be eliminated. This contention of the assessee was negatived by the Tribunal in the said order. Thereupon, the assessee had filed a miscellaneous application, which was registered as M.A. No. 166 of 1995, which was dismissed by the Tribunal on 16th October, 1995 and it was held that through the miscellaneous application, the assessee is only canvassing a highly debatable issue and such contentions are not in the realm of mistake, which could be called apparent or obvious. The Tribunal further observed that the contentions of the assessee may be one of the possible view which the Tribunal has consciously not followed and as such the decision of the Tribunal cannot be in reviewed in the proceedings under section 254(2) of the Act. Thereafter, the assessee had filed another application, which was registered as M.A.No. 226 of 1995, which was dismissed on 2nd April, 1996. In this order, the Tribunal has observed, inter alia, that in its view the assessee's miscellaneous application deserves to be dismissed and the assessee is only seeking a review of the order in the name of a miscellaneous application. The Tribunal had referred to the decision of the Bombay High Court in CIT v. Ramesh Electric & Trading Co. [1993] 203 ITR 497.
3. In the present application, the assessee has stated that the notion about the absence of the review power is directly controverted by the decision of the Supreme Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1909, wherein it was held that the power of review, which inhers in every Court of plenary jurisdiction to prevent miscarriage of justice. Thus, the Tribunal has the power of review and the mistake, which has crept in the order of the Tribunal, may be rectified.
4. The learned counsel for the assessee took us through the contents of the miscellaneous application and has referred to the various decisions, copies of which are available at pages 1 to 14 of the assessee's compilation and had argued that the Tribunal has the inherent power to correct the mistakes committed by it and it is also the duty of the Tribunal to ascertain the correct law. It was also submitted that the Tribunal is having a wrong notion that it has no power to review its own order. According to him, the Tribunal is possessed of such powers and in that connection, reliance was placed on the decision of the Supreme Court, referred earlier.
5. As regards merits, it was contended that the dispute was with regard to the disallowance made under section 40A(8). It was pointed out that the stand of the assessee was that the amount lying on the credit side in the current account of the directors should not be treated as a 'deposit'. It was also the case of the assessee that even if the amount of the current account is treated as deposit, then the interest earned and credited to such account does not partake the nature of a 'deposit' and as such disallowance on that part of the interest element should not be made. The learned counsel has referred to the definition of the term 'deposit'. It was argued that the amount credited by way of interest is only a book credit and no deposit is actually received by the assessee. In fact, it was argued that the interest credited is not inflow, rather, it is an outgo. Thus it was contended that the Tribunal has taken a wrong view of law and this constitutes a mistakes, which could be rectified.
6. Opposing the submissions of the assessee, the learned departmental representative has submitted that the assessee is seeking a review of the order, which is not permissible because the Tribunal has no power to review its own order. In support of this proposition, a number of decisions were cited. It was also submitted that the Tribunal has no inherent power of review and it has been so held by the Apex Court of the country in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji.
AIR 1970 SC 1273. It was also pointed out that the earlier application of the assessee on the point already stand rejected and as such another application on the point is not maintainable.
7. We have considered the submissions advanced before us and have gone through the decisions cited at the Bar. It is undisputed that the point which is being canvassed through the miscellaneous application was argued at the time of hearing of the appeal and the assessee's stand on the point was specifically rejected. Since the Tribunal had already taken a conscious decision on the point, we are unable to agree that there is any mistake apparent from the record, which needs rectification. It is well settled that the power of rectification under section 254(2) of the Act 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 processing of reasoning on points on which there may conceivably be two opinions. If any authority is needed on the point it can be found in Ramesh Electric & Trading Co.'s case (supra).
8. As regards, the contention that the Tribunal is possessed of the power to review its own order, we can do no better than reproduce the following observations of the Bombay High Court in the case of Ramesh Electric & Trading Co. (supra) :- "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 Income-tax Act, 1961. 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 extent of this power of rectification was considered by the Supreme Court as far back as in 1971 in the case of T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50." 9. The reliance of the assessee on the decision in Shivdeo Singh's case (supra), in our opinion, is misplaced. In that case, the Hon'ble Court had held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inhers in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. These observations were made obviously in connection with the High Court's power of review in respect of the disposal of petitions under Article 226 of the Constitution. The principle laid down in the said case, in our opinion, cannot be applied to the facts of the instant case.
Besides this, it could not be established that any grave and palpable error has been committed by the Tribunal resulting in miscarriage of justice. That apart, in the decision of Patel Narshi Thakershi's case (supra), the Hon'ble Supreme Court has held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. In the Income-tax Act, the power of review has not been conferred on the Tribunal. This being so, we are unable to agree with the contention of the assessee that the Tribunal is possessed of the power to review its own order. Moreover, this contention of the assessee runs counter to the decision of the jurisdictional High Court rendered in the case of Ramesh Electric & Trading Co. (supra).
10. In addition to the reasons already discussed above, we feel that even a review application, in the circumstances of the case, is not maintainable. By way of miscellaneous application, the very same contentions which were advanced at the time of hearing of the appeal and were dealt with by the Tribunal are being canvassed. Hence, even the review petition stricto sensu is not maintainable and is liable to be dismissed summarily. We are fortified in this view from the decision of the Supreme Court in the case of All India Judges Association AIR 1993 SC 2493.
11. For the reasons discussed above, we find no merit in the application and it is consequently dismissed.