TaxTMI 
TaxTMI 
2011 (1) TMI 226
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..../2002 for AY 1995-96. 2. The said order had disposed of the miscellaneous application filed by the Revenue contending therein that a mistake had crept in the order of the Tribunal dated 26.9.2008 passed in Miscellaneous Application No.05/Del/2008 arising in ITA No.2964/Del/2002. To better understand the contention of the assessee raised in the present miscellaneous application, the sequence of dates is to be mentioned which is as under:- (i) 29.9.2006 - Order was passed by the Special Bench u/s 254(1) wherein it was held that enhanced compensation received by the assessee from the acquisition authorities in respect of its land was to be assessed on receipt basis. The Tribunal also passed some directions relating to interest paya....
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....Hon'ble Punjab & Haryana High Court was no more a good law. Hence, it was observed that Revenue may suitably modify its miscellaneous application having regard to the final decision of the Hon'ble Supreme Court and taking note of the fact that Revenue did not opt for filing such miscellaneous application as the Special Bench was sitting for the third time, the miscellaneous application filed by the Revenue was disposed of and it was noted that the observations contained in the order dated 26.9.2008 i.e. in respect of miscellaneous application filed by the assessee (M.A. No. 05/Del/2008) were not sustainable under the law and constitute mistake apparent from record. It was also observed that the said order would lead to unnecessary confusion....
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....thdrawal of order dated 26.9.2008 was not based on the issue raised either by the assessee or by the department in the petition u/s 254(2). Therefore, it is against the principles of natural justice. 6. Lastly, it is the case of the assessee that the said order was passed by the Tribunal without affording the assessee reasonable opportunity of hearing. The counsel of the assessee had sought adjournment on the ground of indisposition of the counsel which constitute reasonable cause and reference is made to the decision of Hon'ble Madhya Pradesh High Court in the case of Mahavir Prasad Jain v. CIT - 172 ITR 331 to contend that the applicant who has engaged a counsel will be justified in presuming that counsel would attend to the case and t....
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.... by the assessee has to be rejected on this ground alone and for this purpose, reliance can be placed on the following decisions:- (i) CIT v. President, Income Tax Appellate Tribunal - 196 ITR 838 (Orissa) wherein it has been held that to attract applicability of section 254(2), a mistake which is sought to be rectified must be apparent from record and the same must be in any order passed under sub-section (1) of section 254. The order referred to in section 254(1) is one relating to an appeal filed either by the assessee or by the Revenue. The "appeal" referred to in the provision is one filed u/s 253. Therefore, the order which can be rectified must be one which has been passed by the Tribunal in an appeal filed u/s 253. An order....
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....h an inherent power to rectify/recall an order passed under s. 256(1) of the Act by taking recourse to s. 254(2) of the Act and, therefore, the impugned order is illegal and invalid. The view taken by us finds support from a decision of this Court in CIT v. Kabir Das Investment Ltd. (1995) 124 CTR (Del.) 259 : (1994) 210 ITR 898 (Del.) : TC 55R.777." 10. In the case of CIT v. Aiswarya Trading Co. - 196 Taxman 385 (Ker.), it was held that the Tribunal was justified in refusing to entertain an application filed by the Revenue under section 254(2) to rectify the order issued by the Tribunal in an earlier rectification application filed by the assessee, as the second application on the very same issue is not maintainable before the Tribunal.....