High Court Of Gauhati
Bharat Drug Stores vs. CIT & Anr
Section 254(2)
Asst. Year 1991-92
P.G. Agarwal & Mutum B.K. Singh, JJ.
IT Appeal No. 48 of 2004
22nd November, 2006
Counsel Appeared :
Ms. N. Hawelia, for the Appellant : U. Bhuyan, for the Respondents
JUDGMENT
Mutum B.K. Singh, J. :
In this appeal filed under s. 260A of the IT Act, 1961, the appellant assailed the orders dt. 26th May, 2003, and 31st March, 2004, passed by the Tribunal in ITA No. 481 (Gau) of 1997 for the asst. yr. 1991-92 of the appellant.
For better appreciation, the facts, in brief, are that the appellant filed 2 returns for the asst. yr. 1991-92 showing the total income of Rs. 51,790. The AO, on the basis of some documents recovered during the search of the assessee’s premises, added a sum of Rs. 1,02,598 as additional income for the relevant assessment year. Being aggrieved by and dissatisfied with the order of the AO, the assessee challenged the assessment order in appeal No.158 of 1994-95 before the CIT(A). The CIT(A) set aside the assessment order with a direction to make fresh assessment. Accordingly, the AO reassessed vide order dt. 10th Feb., 1997, by adding a sum of Rs. 1,02,598 to the assessee’s income as income from undisclosed sources. Being aggrieved by the said order the appellant again took the matter before the CIT(A) and, vide order dt. 27th June, 1997, the CIT(A) held that the addition of Rs. 1,02,598 was made wrongly and thus ordered for deletion. Against the said order of the learned CIT(A), the Revenue preferred an appeal before the Tribunal, Guwahati Bench, Guwahati, in ITA No. 481/Gau/1997. The learned Tribunal partly allowed the appeal by restricting the addition to the extent of Rs. 87,598 only as income of the assessee from undisclosed sources for the asst. yr. 1991-92 vide order dt. 26th May, 2003. The appellant against the said order filed a miscellaneous application being MA No. 20 of 2003 before the Tribunal, Guwahati Bench, Guwahati, under s. 254(2) of the IT Act. The learned Tribunal dismissed the application, vide order dt. 31st March, 2004, stating that the Tribunal cannot recall and rehear the appeal under s. 254(2) of the Act.
The orders of the learned Tribunal, Guwahati Bench, Guwahati dt. 26th May, 2003, and 31st March, 2004, are under challenge in this appeal.
We have heard Miss N. Hawelia, learned counsel for the appellant, and Mr. U. Bhuyan, learned counsel appearing for the respondents. During the course of hearing learned counsel appearing for the respondents submits that the power exercisable by the learned Tribunal under s. 254(2) of the Act, was already decided by this Court in CIT vs. Prahlad Rai Todi (2001) 171 CTR (Gau) 537 : (2001) 251 ITR 833 (Gau) and that the present case is covered by the said decision. Admittedly, in the said case, it was held that under s. 254(2) of the Act, the Tribunal can rectify any mistake apparent from the record and to amend any order passed by it and to make such amendment if the mistake is brought to its notice by the AO or by the assessee. The Tribunal cannot in law and facts recall its final order under s. 254(2) of the Act. In the said case, the Tribunal recalled its final order, which was challenged before the High Court. In the present case, the learned Tribunal, vide order dt. 31st March, 2004, rightly rejected the application by holding that under s. 254(2) of the Act the Tribunal cannot recall its original order and rehear the same.
On perusal of the pleaded facts and after hearing the contentions of both sides we find that the appellant has filed the present appeal challenging the order of the Tribunal dt. 26th May, 2003, mainly on the basis of the observations made by the learned Tribunal while passing the order dt. 31 March, 2004, in MA Nos. 20 and 21 of 2003 arising out of ITA No. 481/Gau/1997 for the asst. yr. 1991-92 and ITA No. 457/Gau/1998 for the asst. yr. 1992-93 and also the order of rejection of the miscellaneous application. As discussed hereinabove, the learned Tribunal has no power to rehear the matter touching the merit, which was finally decided, and as such the. learned Tribunal should not have made any observation relating to the merit of the case while exercising the power under s. 254(2) of the IT Act.
Considering the above facts, we are of the view that no substantial question of law is involved in this case as the learned Tribunal has rejected the miscellaneous application filed by the appellant as per the provision of law. In the result, the appeal stands dismissed.
[Citation : 295 ITR 120]
