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2006 (10) TMI 125 - HC - Income TaxApplication u/s 254(2) - mistake apparent in the order passed by the Tribunal - Not adjudicated particular ground - HELD THAT:- Where it is shown to this court in appeal that a ground that has been specifically raised in the memo of appeal before the Tribunal has not been considered by it, that can persuade this court, if the circumstances so justify, to remand the case to the Tribunal for consideration of that ground. What clearly appears to have happened here is that having failed to urge this ground in the appeal before this court, the assessee took a chance by filing a rectification application on that very ground before the Tribunal after the dismissal of the appeal by this court and nearly two years after the Tribunal's first order. This, to our mind, was an attempt at doing indirectly what could not be done directly, i.e., seeking a review of an order of the Tribunal that had already attained finality. Since on the facts of the present case we are of the view that there was no mistake apparent from the record in respect of its earlier order dated July 12, 2002, warranting the exercise by the Tribunal of its power of rectification u/s 254(2) of the Act, we do not consider it necessary to discuss in detail the cases cited by the counsel for the assessee. We may nevertheless refer to the decision rendered by us today in CIT v. Honda Siel Power Products Ltd.[2006 (10) TMI 67 - HIGH COURT, DELHI] where we have given detailed reasons explaining the narrow scope of the power of rectification u/s 254(2). Thus, we are of the view that the impugned order of the Tribunal dated September 13, 2004, cannot be sustained in law and it is accordingly set aside. The appeal is allowed with no order as to costs.
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