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TMI Blog2011 (1) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... us application filed by the assessee which is rejected and dismissed - M.A.NO.57/DEL/2010/ 402/2009) ITA NO.2964/2002 - - - Dated:- 7-1-2011 - SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT, J SHRI I.P.BANSAL, JUDICIAL MEMBER J, AND SHRI A.K.GARODIA, ACCOUNTANT MEMBER J, Appellant by : Shri Sanjay Malik, Advocate. Respondent by : Shri Jayant Misra, CIT-DR. ORDER Per I.P. Bansal, JM. Vide miscellaneous application filed as above, the assessee has sought recall of the order passed by this Tribunal dated 27.11.2009 passed in Miscellaneous Application Nos.402/Del/2009 and 05/Del/2008 in ITA No.2964/Del/2002 for AY 1995-96. 2. The said order had disposed of the miscellaneous application filed by the Revenue conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.05/Del/2008 (order dated 26.9.2008) contending therein that the merger if any was with the order of Hon ble Punjab Haryana High Court whereas the assessee in the present case was resident of Uttar Pradesh and jurisdiction did not vest with Hon ble Punjab Haryana High Court. ( v ) 27.11.2009 - The Tribunal disposed of aforementioned miscellaneous application filed by the Revenue by taking note of the fact that subsequent to all the orders passed by the Tribunal, Hon ble Supreme Court vide decision dated 16.7.2009 in Civil Appeal No.4401/2009 in case of CIT v. Ghanshyam, HUF , the decision rendered by Hon ble Punjab Haryana High Court was no more a good law. Hence, it was observed that Revenue may suitably modify its miscellaneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed u/s 254(2). 5. It is further the case of the assessee that vide miscellaneous application filed by the Revenue dated 15.7.2009, a clarification was sought as to whether the order merged with that of Hon ble Punjab Haryana High Court only to the extent of resident of Punjab Haryana state and not in the case of the assessee who is a resident of Uttar Pradesh and the said application of the Revenue was adjudicated without affording opportunity of hearing to the assessee and the findings recorded against that application are not based on the issue raised in the petition u/s 254(2) and therefore, the withdrawal of order dated 26.9.2008 was not based on the issue raised either by the assessee or by the department in the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id order was withdrawn. It is submitted that no mistake has been committed by the Tribunal by passing such order and application filed by the assessee should be dismissed. 9. We have carefully considered the rival submissions in the light of material placed before us. It is true that sub-section (2) of section 254 can be invoked only in a situation if there is a mistake in the order passed by the Tribunal under sub-section (1) of section 254. The impugned miscellaneous application filed by the assessee is against the order passed on 27.11.2009 which is an order passed u/s 254(2). Therefore, principally, the application filed by the assessee has to be rejected on this ground alone and for this purpose, reliance can be placed on the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, amend any order passed by it under sub-s. (1) and shall make such amendment if the mistake is brought to its notice by the assessee or the AO; . The aforenoted provisions of law are clear and unambiguous. A bare reading whereof leaves no doubt in our mind that the Tribunal is competent to rectify a mistake apparent from the record and amend any order which has been passed under sub-s.(1). Admittedly, by the impugned order, the Tribunal has sought to rectify the order passed by it under s. 256(1) of the Act and not an order passed under s. 254(1). We have no hesitation in holding that the Tribunal is not clothed with an inherent power to rectify/recall an order passed under s. 256(1) of the Act by taking recourse to s. 254(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not to approach the Tribunal to contend that the said order was an invalid order, therefore it should be recalled. 13. Moreover, what has been done by the Tribunal by the order dated 27.11.2009 is that by keeping in view the latest decision of Hon ble Supreme Court, it was observed that the observations made by it in earlier order dated 26.9.2008 are not more relevant and therefore, those observations have been withdrawn. According to the well established law, the order of the Tribunal has to brought in conformity with the decision of the Apex Court, even if the said decision is rendered subsequently to the pronouncement of the order and reference in this regard can be made to the decision of Hon ble Supreme Court in the case of A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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