TMI Blog1991 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... e party No. 2, Messrs Pradhan Construction Co., Uditnagar (hereinafter referred to as "the assessee"), filed an appeal before the Tribunal which was numbered as 1. T. A. No. 160/CTK of 1987. The said appeal was disposed of by an order dated May 3, 1989. Being not satisfied with certain conclusions of the Tribunal, the assessee filed an application under section 256(1) of the Act which was numbered as R. A. No. 76/CTK of 1989. Similarly, the Commissioner filed an application which was numbered as R. A. No. 16/CTK of 1989. Subsequently, the assessee filed an application purported to be one under section 254(2) of the Act which was numbered as M. A. No. 13/ CTK of 1989. The ground indicated by the assessee in the said application was that its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law is engulfed. In the instant case, the assessee's stand was that section 176(3A) has no application to a partnership firm which was dissolved prior to the date on which the said subsection came into force. Though the Tribunal, in its original order, considered that to be the primary ground of challenge, did not record any specific finding on that aspect and, therefore, its jurisdiction under section 254(2) to amend the mistakes apparent from the record has been rightly exercised. For resolution of the dispute, it is necessary to find out the true meaning and import of the expression "mistake apparent from the record ". The said expression is used in section 154(1) and section 254(2) of the Act. In order to attract the application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1] 82 ITR 50 (SC)). As indicated above, no fixed set of principles or guidelines or even a straight jacket formula can be applied while dealing with cases under section 254(2) of the Act. It has to be decided on the facts of each case whether the so-called mistake which is sought to be modified is really one apparent from the record. Coming to the facts of the case, we find that 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 subsection came into effect. In the first paragraph of the order, the Tribunal noticed that grounds Nos. 1 and 2 pertain to the applicability of section 176(3A) of the Act. The arguments of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent from the record. In our view, "amendment" of an order does not mean obliteration of the order originally passed, and its substitution by a new order. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under section 254(1) is the effective order so far as the appeal is concerned. Any order passed under section 254(2) either allowing an amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining unamended is the effective order for all practical purposes. The same continues to be an order under section 254(1). That is the final order in the appeal. An order under section 254(2) does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njustice has been done to a party, and, therefore, no interference is warranted. In our view, there is no scope for a reference in respect of an order under section 254(2). As indicated above, 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 Appellate 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 question or questions of law for the opinion of the High Court arising out of the order in which the correction is made. The granting of the application for rectificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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