Allahabad H.C : The Tribunal’s observations regarding ground No. 5 that the said ground has become redundant because the ITO has already passed the order under s. 154

Counsel Appeared

R.K. Agarwal, for the Revenue : Pravin Mishra for Bharatji Agarwal, for the Assessee

ORDER

By the court :

In pursuance of the direction of this Court under s. 256(2) of the IT Act, 1961, the Tribunal Delhi Bench ‘A’ has referred the following question of law for the opinion of this Court : “Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law recalling its order dt. 4th Jan., 1978, in ITA No. 618(Del)/1976-77 and in restoring the appeal to its file for fresh disposal?” We have heard Sri R.K. Agarwal, learned standing counsel for the Revenue, and Sri Pravin Mishra, Advocate, holding brief of Sri Bharatji Agarwal, for the assessee. In an appeal before the Tribunal the assessee had raised ground No. 5 regarding the disallowance of development rebate and relief under s. 80J of the Act. The Tribunal while deciding the said appeal pertaining to the asst. yr. 1973-74 decided the said ground No. 5 as follows: “Ground No. 5 of the memorandum appeal also has become redundant because the ITO has already passed the order under s. 154 of the Act giving relief to the assessee regarding development rebate and s. 80J of the IT Act, 1961. The order of the ITO passed under s. 154 of the Act is on the paper-book.” Subsequently, it transpired that the application under s. 154 of the Act that was moved by the assessee was rejected and the assumption on which the Tribunal decided ground No. 5 that relief had already been allowed to the assessee through an order under s. 154 was incorrect. On an application moved by the assessee the Tribunal recalled its order dt. 4th of January, 1978, to the extent of the decision on ground No. 5 and restored the appeal to its file to that limited extent for fresh disposal in accordance with law.

4. The question, therefore, whether the Tribunal could do so? It is not in dispute that the Tribunal’s observations regarding ground No. 5 that the said ground has become redundant because the ITO has already passed the order under s. 154 of the Act giving relief to the assessee was mistaken. This was a mistake apparent from the record and, therefore, under the specific powers conferred on the Tribunal by sub-s. (2) of s. 254 of the Act the Tribunal had jurisdiction to rectify the mistake and the mistake could be rectified only by recalling the order insofar as it related to ground No. 5 and disposing of that ground raised in the appeal afresh after hearing the parties. We, therefore, do not see any error in the Tribunal’s order and the question reproduced above is, therefore, answered in the affirmative in favour of the assessee respondent and against the Revenue.

[Citation: 235 ITR 663]