TMI Blog1996 (12) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... he payment in cash amounting to Rs. 11,52,707 disallowed by the AO under s. 40A(3) is not genuine payment and accordingly confirmed the order of the AO. A miscellaneous application was filed by the assessee on the ground that there was no discussion whatsoever at any stage regarding genuineness of payment and thus the decision of the Tribunal gives rise to a mistake apparent from record. Accepting the miscellaneous application, the Tribunal recalled the order in ITA No. 190(Gau) of 1990. 3. According to the learned Departmental Representative, the order of the Tribunal amounts to review in the garb of rectification of mistake and hence a question of law arises. In support of his contention that the Tribunal has no power to review its orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remark as to the genuineness of the payment. The question as to whether the order of the Tribunal amounts to review or not is a question of fact which depends on the facts obtaining in each case. 6. In all the cases cited by the learned Departmental Representative, the Hon'ble Court has accepted in principle, that in a given case the Tribunal may recall the matter if there is a mistake apparent from record. However, we are not going into this aspect. In our opinion, the order of the Tribunal on the miscellaneous application deciding to recall its previous order and to post the matter afresh for hearing, is not an order from which a reference can be made under s. 256 of the Act. In the case of CIT vs. ITAT Ors., the Hon'ble High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The order passed on such a petition does not come within the periphery of s. 253. In my view, therefore, no reference could have been made to this Court." 7. There are no contrary decisions on this point considered by any other High Court. In the case reported in (1995) 211 ITR 355 (Raj), the Hon'ble Court had merely held that the question whether the Tribunal has jurisdiction to rectify, is a question of law. Their Lordships were not concerned with the reference application against the order restoring the IT appeal. In the aforesaid case, the Tribunal has passed final order under s. 254(2) by rectifying the mistake. The other case cited by the Departmental Representative i.e., (1989) 176 ITR 215 (P H), with due regards, is a non-speak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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