9911796707
TMI Blog2011 (10) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... filed its return of income for the assessment year 2006-07 declaring the income as 'Nil' on 10-7-2007. The said return was selected for scrutiny. A notice under Section 143(2) of the Income-Tax Act, 1961 (for short hereinafter referred to as 'the Act') came to be issued. On receipt of the same the assessee filed the details called for from time to time. The Assessing Officer processed the return of income of the assessee and computed the total income of the assessee by his order dated 31-12-2008 as per Annexure-C. The total taxable income was arrived at Rs. 42,58,767/-. Aggrieved by the said assessment order the assessee preferred an appeal to the Commissioner of Income-Tax (Appeals), Mysore, the appellate Commissioner partly allowed the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order end posting the appeal for re-hearing. 4. Per contra, the learned Senior counsel Sri Indra Kumar, appearing for the Department supported the impugned order. 5. The substantial question of law which arises for consideration in this appeal is whether the Tribunal can recall an order passed under Section 254(1) of the Act, on an application filed by either of the party under Section 254(2) of the Act? 6. In order to answer this contention it is necessary to examine the provision. Section 254 reads as under:- "254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. [1A]** ** ** (2) The Appellate Tribunal may, at any tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed. [Provided also that if such appeal is not so disposed of within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rectified is a mistake borne from the record. Then it gets jurisdiction to amend such orders. The concept of amending any order is well understood in legal parlance. By way of an amendment the Court which passed the order rectifies the mistake, in other words, it modifies its earlier order by removing that mistake which exists in the original order. The only difference is that the mistake which was there in the earlier order is not found in the subsequent order passed where those mistakes are rectified and the earlier order stands amended. By no stretch of imagination the said power could be exercised to review the earlier order passed. The only power that is conferred under Section 254(2) is to amend the order passed under Section 254( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax (Appellate Tribunal) Rules, 1963 and that too only in cases where the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex parte. This position was highlighted by one of us (Justice Arijit Pasayat, Chief Justice) in CIT v. Income-tax Appellate Tribunal [1992] 196 ITR 640 (Orissa). Judged in the above background the order passed by the Tribunal is indefensible." In fact following the aforesaid Judgment, this Court in the case of Asstt. CIT v. C.N. Ananthram [2004] 266 ITR 470/135 Taxman 477 at the instance of the Revenue set aside the order passed by the Tribunal which had reviewed the order on an application filed for amendment of the order. In that view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
