COMMISSIONER OF INCOME TAX Vs. DEVILAL SONI

JUDGEMENT

(1.) : By way of instant application under s. 256(2) of the IT Act, 1961, the CIT, Bikaner seeks reference on the following question of law for the opinion of this Court : "Whether the Tribunal was legally empowered to `review' its earlier order passed on 3rd Feb., 1997, by taking a different view on the same set of facts of the case ?"

(2.) ON the same facts, the CIT, Bikaner has also filed a writ petition under Art. 226 of the Constitution of India seeking direction to set aside the order dt. 25th Nov., 1997. The tax reference as well as the writ petition are heard and disposed of by a common order as both of them pertains to the asst. yr. 1989-90 of the same assessee i.e., Devilal Soni.

(3.) MR. Bissa, learned counsel appearing for the Department has vehemently argued that Tribunal has exceeded the jurisdiction in reviewing its own order and recalling the same under the garb of rectification. The learned counsel has strongly placed reliance on the decision of apex Court in Pael Narshi Thakershi & Ors. vs. Praduman Singhji Arjun Singh AIR 1970 SC 1273 wherein it is held that the power to review is not an inherent power and it must be conferred by law. It is submitted that since the power of review has not been granted to the Tribunal, the impugned order is not sustainable in the eye of law. It is further submitted that the Tribunal has committed error in not following the decision of the jurisdictional High Court rendered in ITO vs. ITAT & Ors. (1987) 65 CTR (Raj) 8 : (1987) 168 ITR 809 (Raj). On the other hand, it is submitted by MR. Ojha, learned counsel appearing for the respondent-assessee that so far as the case of ITO vs. ITAT & Ors. (supra) is concerned, it is a judgment of learned Single Judge and it does not hold a good law in view of the Division Bench judgment of this Court in CIT vs. Ramesh Chand Modi (2000) 163 CTR (Raj) 424 : (2001) 249 ITR 323 (Raj). It is further submitted that same view has been followed by another Division Bench of this Court in Rajasthan State Electricity Board (2002) 175 CTR (Raj) 167 : (2002) 259 ITR 341 (Raj).