TMI Blog2009 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 2006 in ITA No. 2308/Del/2004, asst. yr. 1999-2000, and found that the various mistakes of fact and law pointed out by the assessee in its rectification application filed under s. 254(2) of the IT Act, which were apparent from the record, have not been rectified by the Tribunal. Further, according to the applicant/assessee, this application for rectification cannot be rejected on the ground that if the mistakes are rectified, it would amount to a total recall/review of the order already passed by the Tribunal though there were mistake apparent from the record and hence all the mistakes pointed out by the assessee in the application still continue to exist and all of them are apparent from record. In this application, the assessee has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee may be heard and decided correctly in accordance with law after recall of the miscellaneous order dt.18th Dec., 2008in MA No. 633/Del/2007 as all the mistakes continued to be apparent from record and the same must be rectified by the Tribunal without reservation. 3. From the above averments of the assessee, which we have already reproduced in detail, it is clear that in the present application, the main grievance of the assessee is that the Tribunal did not use its inherent power to rectify mistakes while deciding the first miscellaneous application and the Tribunal did not consider certain binding precedents of the Tribunal and so, there is apparent mistake in the order which requires rectification in view of certain decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moved an application for rectification of the order dt.18th Aug., 1983. This application was dismissed on24th Dec., 1983. The assessee filed another application once again seeking rectification of the order dt.18th Aug., 1983. That. application was dismissed on30th Nov., 1983. 5.1 The question of law to be decided before their Lordships was whether the Tribunal was in error in rejecting the miscellaneous application dt.23rd Jan., 1984. 5.2 In these facts, their Lordships held that: "Under the circumstances, we are of the view that this is hardly a question of law, which requires consideration. One application having been dismissed, the second application necessarily had to be dismissed if it was seeking the same relief." (iii) Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) In the case of Addl. Director (B CM), M.P.S.E.B. vs. TRO (2009) 316 ITR 85 (Jab) (AT), the Tribunal held as under: "There is no provision in the IT Act, 1961, to rectify an order of rectification passed under s. 254(2) of the IT Act, 1961." 6. We have considered the rival contentions of both the parties and gone through the relevant orders of the Tribunal. From the ratio of the decisions, it is clear that once a miscellaneous application is rejected by the Tribunal not on technical grounds but on merits, having come to a conclusion that there was no mistake apparent in the order of the Tribunal, the second miscellaneous application moved on the same set of facts for recall of the miscellaneous order on the averment that there were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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