TMI Blog2003 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... fter referred to as "the Act"), the appellant has called in question the correctness of the order dated March 29, 2001, passed by the Income-tax Appellate Tribunal, Bangalore (hereinafter referred to as "the Tribunal"), in Miscellaneous Petition No. 88/Bangalore of 1999 in I.T.A. No. 744/Bangalore of 1998. The facts of the case in brief which are relevant for the purpose of disposal of this appeal may be stated as follows: The assessee was the owner of a residential site No.4 (old No. 71), 4th Main, Sripuram Extension, Seshadripuram, Bangalore, having acquired the same as a result of family settlement. The assessee started putting up construction of ground floor, first floor and second floor on the site in question. The construction was completed in the year 1994-95 at a total cost of Rs. 17.40 lakhs, the break up as under: Ground floor Rs. 8.40 lakhs First floor Rs. 4.25 lakhs Second floor Rs. 4.75 lakhs --------------- Total Rs. 17.40 lakhs --------------- The assessee during the relevant assessment year 1996-97 transferred and sold the first and second floors of the said building together wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit under section 54F is concerned, the Tribunal held that the assessee did not satisfy the conditions as the assessee owns several residential properties including the ground floor of the building in which the first and second floor were constructed. Consequently, dismissed the appeal as one devoid of merits. The assessee filed an application for rectification and for amendment of the order under section 254(2) of the Act. The said application was treated as a miscellaneous petition which was numbered as Miscellaneous Petition No. 88/Bang of 1999. The Tribunal accepted the said miscellaneous petition on the ground that on a careful examination of the assessment order, the order of the appellate authority and the earlier order of the Tribunal passed on January 28, 1999, it is found that certain vital documents necessary for adjudicating the grounds of appeal were not brought out in the order dated January 28, 1999, and felt that it requires further clarification and directed that the entire matter be heard afresh. The said order of accepting the miscellaneous petition is challenged in the above appeal under section 260A of the Act. Sri Indrakumar, learned counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al facts which are necessary for adjudicating the grounds of appeal were not brought on record in order dated January 28, 1999, passed by the Tribunal and the matter required further rectification, the impugned order was passed, the said conclusion reached by the Tribunal must be held to be a mistake apparent on the record. In support of his submission he referred to us the decisions in the case of CIT v. Ballabh Prasad Agarwalla [1998] 233 ITR 354 (Cal) and CIT v. Ramesh Chand Modi [2001] 249 ITR 323 (Raj). CIT v. Dr. T.K. Jairaj [2002] 256 ITR 252 (Ker) and CIT v. U.P. Shoe Industries [1999] 235 ITR 663 (All). In the light of the rival contentions, the only question that would arise for consideration in this appeal is as to whether the order impugned is liable to be interfered with by us in exercise of the power conferred under section 260A of the Act? We are of the view that the order impugned is liable to be set aside on both the grounds urged by Sri Indrakumar, learned counsel for the appellant. As rightly pointed out by Sri Indrakumar, the Tribunal except pointing out in the impugned order that certain vital facts which are necessary for adjudicating the grounds of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o orders. However, the decisions in the case of Karan and Co. v. ITAT [2002] 253 ITR 131 (Delhi); CIT v. ITAT [1992] 196 ITR 640 (Orissa) and CIT v. U.P. Shoe Industries [1999] 235 ITR 663 (All) relied on by Sri Indrakumar, it is clearly stated that the Tribunal should pass only one order amending the earlier order if it is satisfied that the earlier order suffers from a mistake apparent from the record. In this connection, it is useful to refer to the observations of the Delhi High Court in the case of Karan and Co. v. ITAT [2002] 253 ITR 131 at page 136 of the judgment which reads as follows: "The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under section 254(1) is the effective order so far as the appeal is concerned. Any order passed under section 254(2) either allowing the amendment or refusing to amend gets merged with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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