TMI Blog2019 (9) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... anted for the AY 2008-09 and AY 2009-10. Retention money cannot be brought to tax in any of the years. Ordered accordingly. - M.A. Nos. 172 & 173/Kol/2019 Arising out of M.A. Nos. 83 & 84/Kol/2019 - - - Dated:- 20-9-2019 - Sri J. Sudhakar Reddy, Accountant Member And Sri S.S. Godara, Judicial Member For the Assessee : Shri Pankaj Parakh, FCA For the Revenue : Shri C.J. Singh, Sr.DR, JCIT ORDER PER J. SUDHAKAR REDDY, AM :- Miscellaneous Application No. 172/Kol/2019 is filed for rectification of a mistake in M.A. no. 83/Kol/2019, order dated 24.07.2019 and ITAT order dated 15.03.2019. Miscellaneous Application No. 173/Kol/2019 is filed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination or argument to establish it. What is a mistake apparent from the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be determined judicially on the facts of each case. In the instant case, the assessee had taken a specific ground that section 176(3A) had no application to its case, because the partnership had been dissolved prior to the date, when the said sub-section came into effect. The Tribunal dealt with this aspect and came to hold that there was nothing on record to show whether the firm was dissolved. It was categorically observed that the plea related to discontinuance of the firm, and what was meant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final order in the appeal. An order under section 254(2) does not have existence de hors the order under section 254(1). Recalling of the order is not permissible under section 254(2). Recalling of an order automatically necessitates rehearing and readjudication of the entire subject-matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms of rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963, and that too only in cases where the assessee shows that it had reasonable cause for being absent at a time when the appeal was taken up and was decided ex parte. There may be cases where the Tribunal itself comes to notice that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As a consequence of setting aside the impugned order, the reference application were to be restored. Hon ble High Court in the case of Mentha Allied Products Co. (P.) Ltd. v. Incometax Appellate Tribunal reported in [2000] 244 ITR 470 (Delhi) has held as follows: According to section 254, the Tribunal is competent to rectify a mistake apparent from the record and amend any order which has been passed under sub-section (1). Admittedly, by the impugned order, the Tribunal had sought to rectify the order passed by it under section 256(1) and not an order passed under section 254(1). The Tribunal is, thus, not clothed with an inherent power to rectify/recall an order passed under section 256(1) by taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done by the Tribunal was that by keeping in view the latest decision of Supreme Court, it was observed that the observations made by it in earlier order were no more relevant and therefore, those observations had been withdrawn. According to the well established law, the order of the Tribunal has to be brought in conformity with the decision of the Apex Court, even if the said decision is rendered subsequent to the pronouncement of the order. [Para 13] Therefore, there was no force in the miscellaneous application filed by the assessee which was rejected and dismissed. [Para 15] 4. Thus this part of the application seeking rectification u/s 254(2) of the Act of an order passed u/s 254(2) of the Act is r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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