TMI Blog1993 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition. The first respondent herein filed his returns of income for the assessment year ending March 31, 1985 and the assessing authority accepted the same in its order dated August 28, 1985. The assessee had filed only the income and expenditure account. He has not stated whether he had maintained books of account, nor had he produced the balance-sheet or profit and loss account. There was a search of the premises of the first respondent-assessee on December 8, 1987, and gold, cash and books of account were seized. On April 7, 1988, the assessee filed a revised return disclosing-an additional income of Rs. 3,25,000 aggregating to Rs. 4,05,341 and a taxable income of Rs. 3,93,310. Subsequently, he filed yet another return disclosing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was passed on March 18, 1992. By order dated September 29, 1992, in M. P. No. 41/Hyd of 1992, the Income-tax Appellate Tribunal, on a detailed discussion of the arguments urged by the first respondent-assessee held that the earlier Bench on March 18, 1992, had not appreciated the correct legal position and decided to recall the earlier order in exercise of its power under section 254(2) of the Income-tax Act (43 of 1961). The petitioner had filed this writ petition to call up and quash the order dated September 29, 1992, for the reason that the Tribunal exceeded its jurisdiction under section 254(2) of the Income-tax Act in recalling the order dated March 18, 1992, and posting the appeal for fresh hearing. Counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier. Counsel invites our attention to section 68 of the Income-tax Act which reads as follows : "Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year." Counsel submits that to attract this section, the sum credited in the books of the assessee maintained for any previous year must be an amount generated during that year and covered by an entry which is not explained. He submits that the Tribunal on the earlier occasion overl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard." We understand the section to have two parts : (1) The Tribunal recalling the order ; and (2) the Tribunal passing a final order of rectification after hearing the parties. The Division Bench of this court in W. P. No. 14166 of 1991 (see [1994] 206 ITR 126) has held that the earlier part of the order recalling an order is not subject of a reference under section 256 of the Income-tax Act, and, therefore, the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a mistake. We are in agreement with the reasons stated in W. P. No. 14166 of 1991 (CIT v. ITAT [1994] 206 ITR 126, 136 (AP)) in greater detail on this point, which we extract : "...If two views are possible on a point of law, and one of the alternatives is accepted in its previous order, it cannot be held that the mistake is apparent from the record. Unless there are manifest errors which are obvious, clear and self-evident, the Tribunal cannot recall its previous order in an attempt to rewrite the order. Reading the application which the respondent had filed along with the order which the Tribunal made under section 254(2), we are of the opinion that the attempt of the Tribunal was not to rectify any mistake apparent or self-evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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