Maintainability of appeal against a section 264 order turned on absence of statutory appellate right before the Tribunal.

An appeal against an order passed under section 264 of the Income-tax Act was not maintainable before the Tribunal because section 253 did not confer a right of appeal against such revisional orders. The Tribunal treated its earlier disposal on merits as a mistake apparent from the record, since appellate jurisdiction exists only where the statute expressly creates it. Exercising rectificatory power under section 254(2), it recalled the earlier ex parte order and dismissed the assessee's appeal as not admitted.

---

---

Issues: Whether the appeal against an order passed under section 264 of the Income-tax Act, 1961 was maintainable before the Tribunal, and whether the earlier ex parte order required recall under section 254(2).

Analysis: The appeal had been entertained and disposed of on merits earlier, but the omission to notice that section 253 of the Income-tax Act, 1961 does not confer a right of appeal to the Tribunal against an order passed under section 264 constituted a mistake apparent from the record. Since a party can invoke appellate jurisdiction only where the statute creates such a right, the earlier order was liable to be recalled in exercise of rectificatory power under section 254(2).

Conclusion: The appeal was held not maintainable, the earlier order was recalled, and the assessee's appeal was dismissed as not admitted.

---