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TMI Blog2019 (9) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 84/Kol/2019, order dated 24.07.2019 and ITAT Order dated 15.03.2019. 2. These Miscellaneous Applications ('M.A.s' for short) have been filed for rectification of a mistake in the order passed u/s 254(2) of the Income Tax Act, 1961 ('the Act' for short) on 24.07.2019 as well as for rectification of the order of the ITAT dated 15.03.2019 passed u/s 254(1) of the Act. 3. One of the points for our consideration is whether M.A.s or an M.A. is maintainable. Hon'ble High Court in the case of Commissioner of Income-tax v. Income-tax Appellate Tribunal reported in [1992] 196 ITR 683 (Orissa) has held as follows: "In order to attract the application of sections 154(1) and section 254(2) a 'mistake' must exists, and the same must be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) aspect was not categorically dealt with. Whether the conclusion on facts was correct or not was inconsequential. Merely because reference had not been made to section 176(3A), it did not mean that the Tribunal did not address itself to the factual aspect on which the applicability of section 176(3A) was dependent. Therefore, the conclusion of the Tribunal that, in the order, no decision was given by the Tribunal on this aspect was clearly erroneous. The language used in section 254(2) makes it clear that only 'amendment' to the order passed under section 254(1) is permissible, where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. 'Amendment' of an order does not mean oblite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a rehearing may be directed. This is so because no pejudice should be caused to a party for a wrong committed by the Tribunal. Otherwise, under section 254(2), an order cannot be recalled in its entirety and a rehearing cannot be directed. There is no scope for a reference in respect of an order under section 254(2). Section 254(2) has no independent existence. The moment it is passed, it gets merged with the order under section 254(1). The rectification of an error under section 254(2) in an order passed by the Tribunal under section 254(1) cannot be said to be the passing of a new order which gives a right to either party to apply to the Tribunal requiring a case to be stated referring a question or questions of law for the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akash (HUF) v. Income-tax Officer, Ward-2(1), Meerut reported in [2011] 131 ITD 121 (Delhi) (SB) has held as follows: "It is true that sub-section (2) of section 254 can be invoked only in a situation 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 was against the order passed under section 254(2). Therefore, principally, the application filed by the assessee had to be rejected on this ground alone. [Para 9] The relief which was being sought by the assessee by way of impugned rectification application was not legally tenable for the reason that the Tribunal has no power to adjudicate upon subsequent application filed under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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