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TMI Blog2007 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the subsequent fresh order passed on April 23, 2004 could not be sustained. - 59 and 76 of 2004 - - - Dated:- 13-9-2007 - S. K. KULSHRESTHA and A. M. SAPRE JJ. R. L. Jain with Ms. Veena Mandlik for the appellant. S. C. Bagadia with D. K. Chhabra for the respondent. JUDGMENT The judgment of the court was delivered by 1. S. K. KULSHRESTHA J. - By this appeal under section 260A of the Income-tax Act, 1961, the Revenue has assailed the order dated March 5, 2004, passed by the Tribunal in M. A. No. 56/IND/03 for the assessment year 1996-97 by which the Income-tax Appellate Tribunal, Indore, acting upon the application under section 254(1) of the Income-tax Act, at the instance of the assessee, has recalled its earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal cannot withstand the scrutiny of law. It is stated that the Deputy Commissioner of Income-tax, while framing the assessment, rejected the account of the assessee and proceeded under section 145 to make a best judgment assessment. The doubt which the Assessing Officer harboured was that the selling price indicated by the assessee was less than what it should have fetched. The order passed by the Income-tax Appellate Tribunal in respect thereof was assailed on the ground that it was a non- speaking order, in appeal I. T. A. No. 60 of 2001. The said appeal was admitted on September 12, 2001, but, during its pendency, the assessee filed an application under section 254(2) for rectification of the order and the Tribunal allowed the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act does not imply the power to recall or review the order. 7. It is not disputed before us that on an application under section 254(2) of the Income-tax Act having been filed, the Tribunal set aside its own order in its entirety for passing an order afresh. This was tantamount to reviewing the order and not rectifying it. Under these circumstances, the order of the Tribunal passed under the provisions of section 254(2) of the Income-tax Act and the subsequent fresh order passed on April 23, 2004, cannot be sustained. 8. Ex consequentia, in both the cases, the questions formulated are answered in favour of the Revenue and against the assessee. Needless to add, that the impugned orders shall stand set aside. Parties sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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