COMMISSIONER OF INCOME TAX Vs. RAMESH CHAND MODI

JUDGEMENT

(1.) HEARD learned counsel for the appellant.

(2.) THE appellant challenges the order passed by the Income-tax Appellate Tribunal dated September 20, 1999, in Misc. Application No. 43/JP of 1998. THE assessee-respondent preferred an appeal against the order passed by the Assessing Officer under Section 158BC of the Income-tax Act, 1961. That appeal was decided by the Tribunal on June 29, 1998, and in respect of that order a miscellaneous application was made by the assessee pointing out that grounds Nos. 31 to 42 of the appeal remain to be decided, this was a mistake apparent on the record and deserves to be corrected. THE Tribunal, agreeing with this contention that the grounds referred to in the memo of appeal at Nos. 31 to 34 though taken by the assessee remain undecided, in particular quoted ground No. 34 and was of the view that this ground goes to the very basis of the order and though this ground was taken by the assessee in his appeal it could not be considered "due to oversight". On the aforesaid conclusion, the application was allowed and the order dated June 29, 1998, was recalled. THE appeal was ordered to be heard afresh for deciding in accordance with law.

(3.) ONCE the conclusion is reached that the Tribunal had power to rectify mistakes on the face of the record and that there existed mistakes on the face of the record that the Tribunal has not dealt with the important issue arising in the case which goes to the root of the matter, the only consequential order of rectification that could be passed was to recall the earlier order and make a fresh order deciding the issue which was left undecided after hearing the parties on that issue. That undecided issue could not have been decided in favour or against any party without hearing them in that regard. The contention of learned counsel that there is no power to recall and substitute another order as a result of rectification because it amounts to review is not well founded. ONCE a mistake on the face of the record is established what order should follow to correct that mistake shall always depend on the facts and circumstances requiring to rectify the mistake. If the mistake is one which requires determination of some undecided issue because it has not been decided though raised, the procedure that would follow the discovery of such mistakes is to recall the order, and decide the case afresh or to decide that issue after affording an opportunity of hearing the parties concerned and pass a fresh order in the light of finding on such issue. The order under Section 254(2) is not confined to arithmetical or clerical mistake, nor only to correct substantive mistakes but also procedural mistakes.