INCOME TAX OFFICER Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) THE petitioner by this writ petition has challenged the order dated October 15, 1985 (annexure-3) on the ground that the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, respondent No. 1, herein, had no jurisdiction under Section 254(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), to review its own order, Respondent No. 2 is the karta of a Hindu undivided family. A survey was conducted in the premises of the assessee under Section 133A on August 18, 1979, and a number of documents and papers were seized from the business premises as well as from the residence of the assessee. THE Income-tax Officer, Special Investigation Circle-I, Jodhpur, the petitioner herein, assessed respondent No. 2 and made an addition of Rs. 80,000 to the income for the assessment year 1978-79. Respondent No. 2 preferred an appeal before the Appellate Assistant Commissioner, Jodhpur, who dismissed the appeal filed by respondent No. 2. THEreafter, respondent No. 2 preferred an appeal before the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur. THE Income-tax Appellate Tribunal Jaipur Bench, Jaipur, by its judgment dated July 26, 1984, dismissed the appeal filed by respondent No. 2 which has been placed on record as annexure-1. THEreafter, respondent No. 2 moved an application under Section 254(2) of the Act for rectification of the mistake. THE Income-tax Appellate Tribunal, by its order dated October 15, 1985, allowed the miscellaneous application filed by respondent No. 2 on the ground that the original order dated July 26, 1984, did contain mistake of facts and thereby the conclusion drawn was wrong. It was further observed that since the other member was not a party to the original order, the order was recalled and the matter was ordered to be disposed of afresh.

(2.) MR. Arora, learned counsel for the petitioner, submits that the order of the Income-tax Appellate Tribunal dated October 15, 1985, is beyond the scope of Sub-section (2) of Section 254 of the Act. He submits that it is not within the scope of rectification to recall the order whole hog. MR. Mehta contested the position. From a bare reading of Sub-section (2) of Section 254 of the Act, it appears that under the garb of rectification, the Income-tax Appellate Tribunal cannot exercise the power of review and recall the order whole hog. There are conflicting judgments of various High Courts on this subject. Without going into the various authorities which have been cited before me, I only need say that a bare reading of Sub-section (2) of Section 254 shows that it does not empower the Tribunal to review its own order and recall its earlier order.