2004 (2) TMI 36

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....o be examined in this case as a short question is required to be decided as indicated earlier. It transpires that the Income-tax Appellate Tribunal heard the appeal which was filed at the instance of the assessee and decided it by order dated November 13, 2000. It appears that the assessee submitted an application under section 254(2) of the Income-tax Act, 1961, for rectification of a mistake and the Tribunal made an order dated September 12, 2001, allowing the application. The Tribunal held: "We agree that the mistake rectifiable under section 254(2) has occurred while passing the order dated November 30, 2000. Having come to this conclusion, we consider it reasonable and justified to recall the order passed by the Tribunal . . ." T....

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....y any mistake apparent from the record? The language of the provisions is clear. The foundation for exercising the jurisdiction is 'with a view to rectify any mistake apparent on the record' and the object is achieved by 'amending any order passed by it'. The power so conferred does not contemplate a rehearing which would have the effect of re-writing an order affecting the merits of the case. Else there would be no distinction between a power to review and a power to rectify a mistake. What is not permitted to be done by the statute having deliberately omitted to confer review jurisdiction on the Tribunal, cannot be indirectly achieved by recourse to section 254(2) of the Act." Again in the case of Karan and Co. v. ITAT [2002] 253 ITR 1....

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....nt at a time when the appeal was taken up and was decided ex parte. This position was highlighted by one of us (Justice Arijit Pasayat, Chief Justice) in CIT v. Income-tax Appellate Tribunal [1992] 196 ITR 640 (Orissa). Judged in the above background the order passed by the Tribunal is indefensible." The court specifically provided that recalling the entire order would mean passing of a fresh order. That does not appear to be the legislative intent. Counsel for the respondent cited a decision of this court in Seth Madan Lal Modi v. CIT [2003] 261 ITR 49. In that case, the order of rectification was upheld. It may be noted that the court considered various decisions including Deeksha Suri [1998] 232 ITR 395 (Delhi) and Karan and Co. [2002....