TMI Blog2000 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal on June 29, 1998, and in respect of that order a miscellaneous application was made by the assessee pointing out that grounds Nos. 31 to 42 of the appeal remain to be decided, this was a mistake apparent on the record and deserves to be corrected. The Tribunal, agreeing with this contention that the grounds referred to in the memo of appeal at Nos. 31 to 54 though taken by the assessee remain undecided, in particular quoted ground No. 34 and was of the view that this ground goes to the very basis of the order and though this ground was taken by the assessee in his appeal it could not be considered "due to over sight". On the aforesaid conclusion, the application was allowed and the order dated June 29, 1998, was recalled. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Travancore and Cochin High Court, the court said : "The majority judgments of the Full Bench were defective on the face of them in that they did not effectively deal with and determine an important issue in the case on which depended the title of the plaintiffs and the maintainability of the suit. This was certainly an error apparent on the face of the record." This is what the Tribunal has said in the present case that it failed to consider the four grounds taken in the memo of appeal and has referred to ground No. 34 in its order. We, in the circumstances, are of the opinion that the Tribunal has exercised its jurisdiction under section 2 54 in accordance with the settled principles for determining the "mistake apparent from the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the, Tribunal has failed to decide an important issue by inadvertence as was the case before the Supreme Court referred to above. Another decision on which the reliance was placed is CIT v. Ramesh electric and Trading Co. [1993] 203 ITR 497 (Bom). This decision, in our opinion, has not decided the issue which has been raised before us because it was not a case in which the Tribunal has failed to decide an important issue raised before it. It was only a case where while deciding an issue the Tribunal has not taken into consideration some of the arguments. That is to say that the Tribunal has failed to consider one or some of the aspects of the issues decided by it. This case, in our opinion, is clearly not falling within the four co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination of some undecided issue because it has not been decided though raised, the procedure that would follow the discovery of such mistakes is to recall the order, and decide the case afresh or to decide that issue after affording an opportunity of hearing the parties concerned and pass a fresh order in the light of finding on such issue. The order under section 254(2) is not confined to arithmetical or clerical mistake, nor only to correct substantive mistakes but also procedural mistakes. The whole contention of learned counsel for the appellant is founded on the premise that recalling of the order for making a fresh order amounts to review and not rectification. While it is true that the power of rectification of an order is fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SC 606, while repelling a contention that an order setting aside an ex parte order amounts to review which cannot be exercised in the absence of express authorisation by law : " The question whether a party must be heard before it is proceeded against is one of procedure ... different considerations arise on review. The expression 'review' is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpable erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the -record. It is in the latter sense that the court in Narshi Thakershi's case held that no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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