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2021 (7) TMI 803 - AT - Income TaxRectification u/s 254(2) - HELD THAT - We find that by means of present applications, the assessee seeks to get rectified/modified the order passed in application of the assessee under Section 254(2). To attract the applicability of section 254(2), the mistake which is sought to be rectified must be apparent from the record and the same must be in any order passed under sub-section (1) of section 254. An order rejecting an application for rectification under section 254(2) is not an order passed under section 254(1) and it cannot be rectified under section 254(2). Having regard to the facts and circumstances of the case and particularly the statutory provision under Section 254(2) it in found that the rectification application moved under Section 254(2) on M.A. is not permissible. Respectfully, following the decisions passed in the case of CIT vs. ITAT 1992 (1) TMI 88 - ORISSA HIGH COURT AND Dr. S. Panneerselvam vs. ACIT others 2009 (10) TMI 113 - MADRAS HIGH COURT we hold that the application of the assessee is not maintainable and as such same is dismissed.
Issues:
1. Recalling the order of the Tribunal dated 28.04.2021 passed in M.A. Nos. 326 to 328/Ahd/2019 in ITA No. 1408 to 1410/Ahd/2017 and M.A. Nos. 349&350/Ahd/2019 in ITA No. 1407&1411/Ahd/2017 for the A.Y. 2007-08. 2. Permissibility of recalling the order under section 254(2) of the Income-tax Act, 1961. 3. Interpretation of the applicability of section 254(2) in rectifying mistakes apparent from the record in the order passed under section 254(1). Issue 1: Recalling the Tribunal's Order The assessee sought to recall the Tribunal's order dated 28.04.2021 passed in various M.A. applications for the A.Y. 2007-08. The counsel for the assessee argued for the rectification of the order, but the question arose whether the order could be recalled under section 254(2) of the Income-tax Act, 1961. The Tribunal noted that all the matters were similar and heard analogously for convenience. Issue 2: Permissibility of Recalling Order under Section 254(2) The Ld. DR contended that the order could only be recalled under section 254(1) and rectification of rectification was impermissible, citing the decision of the Hon'ble Orissa High Court. The Tribunal observed that the rectification sought must be apparent from the record in an order passed under section 254(1) to attract the applicability of section 254(2). Issue 3: Interpretation of Section 254(2) Applicability Referring to the decisions of the Hon'ble Orissa High Court and Madras High Court, the Tribunal held that the rectification application under section 254(2) was not permissible. The Madras High Court's observation emphasized that once rectification under section 254(2) was done and merged with the original order passed under section 254(1), no further application for rectification was maintainable. The Tribunal, following these decisions, dismissed the assessee's application as not maintainable. In conclusion, the Tribunal dismissed all miscellaneous applications filed by the assessee after considering the statutory provisions under Section 254(2) and the interpretations provided by the Hon'ble Orissa High Court and Madras High Court. The order was pronounced in open court on 20/07/2021.
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