2003 (3) TMI 70 - HC - Income Tax

Power of tribunal Held that - (a) The Tribunal has power to rectify a mistake apparent from the record on its own motion or on an application by a party under section 254(2) - (b) An order on appeal would consist of an order made under section 254(1) or it could be an order made under sub-section (1) as amended by an order under sub-section (2) of section 254 - (c) The power of rectification is to be exercised to remove an error or correct a mistake and not for disturbing finality the fundamental principle being that power of rectification is for justice and fair play; (d) That power of rectification can be exercised even if a mistake is committed by the Tribunal or even if a mistake has occurred at the instance of party to the appeal

Issues Involved:
1. Jurisdiction of the Tribunal under section 254(2) of the Income-tax Act, 1961.
2. Whether the Tribunal's order dated October 27, 2000, contained a mistake apparent from the record.
3. Validity of the Tribunal's power to recall its order.
4. Procedural correctness of the Tribunal's handling of the miscellaneous application.
5. Applicability of jurisdictional High Court decisions as mistakes apparent from the record.

Detailed Analysis:

1. Jurisdiction of the Tribunal under section 254(2) of the Income-tax Act, 1961:
The Tribunal has the authority to rectify any mistake apparent from the record either on its own motion or upon an application by a party. Section 254(2) specifies that the Tribunal may amend any order within four years from the date of the order to rectify such mistakes. The Tribunal's power to rectify is distinct from the power to review, which it does not possess inherently unless explicitly provided by law.

2. Whether the Tribunal's order dated October 27, 2000, contained a mistake apparent from the record:
The assessee contended that the Tribunal failed to consider a binding decision of the jurisdictional High Court (Hiralal Bhagwati v. CIT [2000] 246 ITR 188) and incorrectly interpreted the Articles of the assessee, leading to a factual error. The Tribunal recognized these omissions as mistakes apparent from the record, warranting rectification.

3. Validity of the Tribunal's power to recall its order:
The Tribunal's power to rectify includes the authority to recall an order if necessary to correct a mistake. The Tribunal's action to recall its order dated October 27, 2000, was within its jurisdiction under section 254(2). The Tribunal is empowered to pass consequential orders necessary to rectify the mistake, which may include recalling the original order.

4. Procedural correctness of the Tribunal's handling of the miscellaneous application:
The miscellaneous application was transferred from the Rajkot Bench to the Ahmedabad Bench due to administrative exigencies, as the Rajkot Bench was non-functional at the time. This transfer was valid under the administrative powers conferred by section 255(5) of the Act and rules 3 and 4 of the Income-tax (Appellate Tribunal) Rules, 1963. The Tribunal complied with procedural requirements, and no prejudice was caused to the petitioner.

5. Applicability of jurisdictional High Court decisions as mistakes apparent from the record:
Non-consideration of a jurisdictional High Court's decision constitutes a mistake apparent from the record, regardless of whether the decision was rendered before or after the order in question. The Tribunal must rectify such mistakes to ensure justice and fairness. The decision in Hiralal Bhagwati was binding on the Tribunal, and its omission was a rectifiable error.

Conclusion:
The Tribunal's order dated September 5, 2001, recalling its earlier order was valid and within its jurisdiction under section 254(2) of the Act. The Tribunal correctly identified and rectified the mistake apparent from the record by considering the jurisdictional High Court's decision. The procedural handling of the miscellaneous application was appropriate, and the Tribunal's actions were aimed at ensuring justice and fair play. The petition challenging the Tribunal's order was rejected, and the rule was discharged.

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