SRINIDHI GOLD Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) The assessee has preferred these two appeals arising out of the appeals which were the subject matter before the Tribunal. As a common question of law is involved in these appeals they are taken up for consideration together and disposed off by this common order. The assessee is a partnership firm engaged in the business of purchase and sale of jewellery both gold and silver. The assessee filed its return of income for the assessment year 2006-07 declaring the income as Nil on 10-7-2007. The said return was selected for scrutiny. A notice under section 143(2) of the Income Tax Act, 1961 (for short hereinafter referred to as the Act) came to be issued. On receipt of the same the assessee filed the details called for from time to time. The assessing officer processed the return of income of the assessee and computed the total income of the assessee by his order dated 31-12-2008 as per Annexure-C. The total taxable income was arrived at Rs. 42,58,767. Aggrieved by the said assessment order the assessee preferred an appeal to the Commissioner of Income-tax (Appeals), Mysore. The appellate Commissioner partly allowed the appeal by his order dated 13-3-2009 as per annexure-E. Aggrieved by the order of the appellate Commissioner to the extent held against the assessee, a second appeal was preferred to the appellate Tribunal by the assessee. The Tribunal after hearing both the parties allowed the appeal of the assessee in part by the order dated 24-9-2009. The revenue filed a Miscellaneous Petition under section 254(2) of the Act for recalling the order pointing out certain irregularities in the order passed by the Tribunal. The assessee also filed a Miscellaneous application for rectification of certain mistakes in the order passed by the Tribunal. The Tribunal after hearing both the applications together allowed the Miscellaneous application filed by the revenue recalling the order dated 24-9-2009 in its entirety and consequently it dismissed the Miscellaneous application filed by the assessee on the ground that the assessee can agitate his contentions at the time of rehearing of the appeal. Aggrieved by these two orders the assessee has preferred these appeals.

(2.) Sri A Shankar, the learned counsel appearing for the assessee contended that under section 254(2) of the Act a power is vested with the Tribunal which has passed a final order to and the orders so as to rectify the errors which are borne from the face of the record. It has no power to review the entire order and re-hear the appeal afresh. Therefore, he submits that the Tribunal exceeded in its jurisdiction in recalling the entire order and posting the appeal for re-hearing.

(3.) Per contra, the learned senior counsel Sri Indra Kumar, appearing for the department supported the impugned order.