TaxTMI 
TaxTMI 
2003 (12) TMI 44
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....site in question. The construction was completed in the year 1994-95 at a total cost of Rs. 17.40 lakhs, the break up as under: Ground floor Rs. 8.40 lakhs First floor Rs. 4.25 lakhs Second floor Rs. 4.75 lakhs --------------- Total Rs. 17.40 lakhs --------------- The assessee during the relevant assessment year 1996-97 transferred and sold the first and second floors of the said building together with undivided share in the land for a consideration of Rs. 9.60 lakhs to two different purchasers. Since the building was not held for a period of exceeding 36 months, the assessee offered the difference for taxation in respect of the sale proceeds received on account of transfer of building under the "short-term capital gains". But however in so far as the undivided portion of the l....
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....ent of the order under section 254(2) of the Act. The said application was treated as a miscellaneous petition which was numbered as Miscellaneous Petition No. 88/Bang of 1999. The Tribunal accepted the said miscellaneous petition on the ground that on a careful examination of the assessment order, the order of the appellate authority and the earlier order of the Tribunal passed on January 28, 1999, it is found that certain vital documents necessary for adjudicating the grounds of appeal were not brought out in the order dated January 28, 1999, and felt that it requires further clarification and directed that the entire matter be heard afresh. The said order of accepting the miscellaneous petition is challenged in the above appeal under section 260A of the Act. Sri Indrakumar, learned counsel for the appellant, has raised the following questions of law for our consideration: "(a) Whether, on the facts and circumstances of the case, the Tribunal is correct in law in recalling its earlier order dated January 28, 1999, which was passed after due consideration of all the issues thereto? (b) Whether, on the facts and circumstances of the case, the Tribunal is correct in law in recall....
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....he case of CIT v. Ballabh Prasad Agarwalla [1998] 233 ITR 354 (Cal) and CIT v. Ramesh Chand Modi [2001] 249 ITR 323 (Raj). CIT v. Dr. T.K. Jairaj [2002] 256 ITR 252 (Ker) and CIT v. U.P. Shoe Industries [1999] 235 ITR 663 (All). In the light of the rival contentions, the only question that would arise for consideration in this appeal is as to whether the order impugned is liable to be interfered with by us in exercise of the power conferred under section 260A of the Act? We are of the view that the order impugned is liable to be set aside on both the grounds urged by Sri Indrakumar, learned counsel for the appellant. As rightly pointed out by Sri Indrakumar, the Tribunal except pointing out in the impugned order that certain vital facts which are necessary for adjudicating the grounds of appeal were not brought out in the order dated January 28, 1999, and therefore the matter requires clarification, the Tribunal has not given a finding in the impugned order that the order dated January 28, 1999, passed by it suffers from a mistake apparent from the record. Sub-section (2) of section 254 empowers the Tribunal to amend the earlier order passed by it provided the Tribunal is satisf....
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....m the record. In this connection, it is useful to refer to the observations of the Delhi High Court in the case of Karan and Co. v. ITAT [2002] 253 ITR 131 at page 136 of the judgment which reads as follows: "The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under section 254(1) is the effective order so far as the appeal is concerned. Any order passed under section 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining unamended is the effective order for all practical purposes. The same continues to be an order under section 254(1). That is the final order in the appeal. An order under section 254(2) does not have existence de hors the order under section 254(1). Recalling of the order is not permissible under section 254(2). Recalling of an order....