2018 (6) TMI 739

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....iled earlier Miscellaneous Application No.136/Kol/2017 arising out of ITA No.715/Kol/2012 for Assessment Year 1996-97. The said Miscellaneous Application was dismissed by this Tribunal by order dated 15.12.2017 on the ground that tax effect involved is less than Rs. 10 lakhs. But in reality actual tax effect involved is more than Rs. 10 lakhs. Therefore, again, the Revenue has filed the present Miscellaneous Application No.26/Kol/2018 requesting the Bench to rectify the earlier Miscellaneous Application No.136/Kol/2017, as the Revenue noted that the tax effect is more than Rs. 10 lakh. The ld. DR for the Revenue has prayed the Bench that since the tax effect in the appeal is more than Rs. 10 lakh, therefore, earlier Miscellaneous Applicatio....

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....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 rejecting an application for rectification u/s 254(2) cannot be rectified u/s 254(2). The same may relate to an appeal but is not an order passed by the Tribunal under sub-section (1) of Section 254 and thus, it was held that subsequent application filed by the assessee was rightly rejected by the Tribunal. MA-57/Del/2010 (ii) In the case of Mentha & Allied Products Co.Ltd. Vs. ITAT - 244 ITR 4....

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....tion to the rival submissions and perused the materials available on record and after hearing the ld. DR for the Revenue, we note that the Revenue has filed the Miscellaneous Application to rectify our earlier order in Miscellaneous Application No.136/Kol/2017 which is not permitted as per section 254(2) of the Act. Section 254(2) of the Act can be invoked only in a situation if there is mistake in the order passed by the Tribunal u/s 254(1) of the Act. It should be noted that our earlier order passed in the Miscellaneous Application No.136/Kol/2017 cannot be held as a mistake arising out of the order passed by the Tribunal u/s 254(1) of the Act. To attract the applicability of section 254(2) which is sought to be rectified must be apparent....