2003 (9) TMI 9

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....ommissioner of Income-tax, Bikaner, has also filed a writ petition under article 226 of the Constitution of India seeking direction to set aside the order dated November 25, 1997. The tax reference as well as the writ petition are heard and disposed of by a common order as both of them pertain to the assessment year 1989-90 of the same assessee, i.e., Devilal Soni. The facts which lead to the filing of the reference application and the writ petition are as follows: The respondent-assessee is an individual, engaged in the job of gold smith. A search operation was carried out at the residential premises of the respondent-assessee on September 28/29, 1988. The Assessing Officer in the assessment order for the assessment year 1989-90 by order....

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....on of residential house and plots, etc., are not explained then the action for taxing the escaped income can be taken only in the relevant previous year and the same cannot be added for the assessment year under reference. These issues therefore, required fresh consideration after allowing adequate opportunity to the appellant. The above additions of Rs. 1,72,000 and fts. 2,00,000 are, therefore, restored to the file of the Assessing Officer with the directions that the case should be examined on merits and additions should be made only on the basis of some material after giving an opportunity to the appellant without placing any reliance on the so called statement of surrender of the appellant recorded on September 29, 1988." The Assessing....

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.... power of review has not been granted to the Tribunal, the impugned order is not sustainable in the eye of law. It is further submitted that the Tribunal has committed error in not following the decision of the jurisdictional High Court rendered in ITO v. ITAT [1987] 168 ITR 809 (Raj). On the other hand, it is submitted by Mr. Ojha, learned counsel appearing for the respondent-assessee, that so far as the case of ITO v. ITAT [1987] 168 ITR 809 (Raj) is concerned, it is a judgment of the learned single judge and it does not hold good in view of the Division Bench judgment of this court in CIT v. Ramesh Chand Modi [2001] 249 ITR 323. It is further submitted that same view has been followed by another Division Bench of this court in CIT v. Raj....

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....uo motu or on an application. There is no dispute to the proposition that power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The Tribunal does not possess the power to review its own order. The Tribunal cannot recall its previous order in an attempt to rewrite the order. However, it has a power of rectification conferred by section 254(2). Thus, the provision authorises the Tribunal to rectify any "mistake apparent from the record". The said expression has a wider content than the expression "error apparent on the face of record" occurring in Order 47, rule 1 of the Civil Procedure Code. We are in complete agreement with the said view taken by the Kerala High Court in Kil K....