Court held that, whatever be the correctness of these findings it cannot be stated that the Tribunal arrived at such findings without proper consideration of materials on record. Several issues were presented before the Tribunal and were examined before coming to such specific finding. The Tribunal could not have recalled the entire order under purported exercise of rectification powers. It is well settled through series of judgements of this Court and the Supreme Court that power of rectification are circumscribed with the condition that the same can be exercised for correcting error be of law or facts apparent on record. The jurisdiction to correct errors vested in the Tribunal is not akin to review powers. As noted, the Accountant Member, while showing inclination to exercise rectification powers, had not cited any reason in support of his opinion. Accordingly the Petition is allowed .Court also observed that, We are, prima facie, not inclined to accept both these legal contentions. Merely because the appeal is pending before the High Court, would not preclude, in our prima facie opinion, the Tribunal from exercising rectification powers. Nor can we lay down a general proposition of inviolable application that the moment there is a difference of opinion between two Members of the Bench of the Tribunal, it would automatically C/SCA/6337/2018 ORDER imply that the order does not suffer from any error apparent on the face of the record. However, with respect to the fundamental question whether there was an error which could have been rectified, we would like to examine the issue further. Notice returnable on 18 -06-2018. (SP NO. 6337 of 2018, dt. 20/08/2018). (AY. 201-02 to 2006 -07)
Shambhubhai Mahadev Ahir v. ITAT (Guj.)(HC), www.itatonline.org
S. 254(2) : Appellate Tribunal-Rectification of mistake apparent from the record–Mere pendency of appeal in the High Court does not preclude the Tribunal’s power of rectification, (ii) Fact that there is difference of opinion between the two members of the Tribunal would, by itself, nor mean that the error sought to be rectified is not apparent on the record & (iii) The Tribunal has no jurisdiction to recall an order based on submissions made and upon consideration of materials on record-The power of rectification are circumscribed with the condition that the same can be exercised for correcting error be of law or facts apparent on record- The jurisdiction to correct errors vested in the Tribunal is not akin to review powers. [S. 153A]