TMI Blog2018 (6) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue - decided against the revenue. - M. A No. 26/Kol/2018 ( Arising out of I.T.A No. 715/Kol/2012 ) - - - Dated:- 6-6-2018 - Shri A. T. Varkey, JM And Dr. A. L. Saini, AM Appellant by : Shri A. Bhattacharjee, Addl. CIT (DR). Respondent by : Shri M. D. Shah, AR ORDER Per Dr. Arjun Lal Saini, AM By way of captioned application, the Revenue has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961(in short the Act ) has crept in the order of the Tribunal dated 15.12.2017. 2. The case of the Revenue in this Miscellaneous Application is that the Revenue has filed earlier Miscellaneous Application No.136/Kol/2017 arising out of ITA No.715/Kol/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation if there is a mistake in the order passed by the Tribunal under sub-section (1) of Section 254. The impugned miscellaneous application filed by the assessee is against the order passed on 27.11.2009 which is an order passed u/s 254(2). Therefore, principally, the application filed by the assessee has to be rejected on this ground alone and for this purpose, reliance can be placed on the following decisions:- (i) CIT Vs. President, Income Tax Appellate Tribunal 196 ITR 838 (Orissa) wherein it has been held that to attract applicability of Section 254(2), a mistake which is sought to be rectified must be apparent from record and the same must be in any order passed under sub-section (1) of Section 254. The order referred to in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the record and amend any order which has been passed under sub-s.(1). Admittedly, by the impugned order, the Tribunal has sought to rectify the order passed by it under s. 256(1) of the Act and not an order passed under s. 254(1). We have no hesitation in holding that the Tribunal is not clothed with an inherent power to rectify/recall an order passed under s. 256(1) of the Act by taking recourse to s. 254(2) of the Act and, therefore, the impugned order is illegal and invalid. The view taken by us finds support from a decision of this Court in CIT vs. Kabir Das Investment Ltd. (1995) 124 CTR (Del) 259 : (1994) 210 ITR 898 (Del) : TC 55R.777. 4. We have given a careful consideration to the rival submissions and perused the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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