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TMI Blog2012 (10) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... (Luc)/2008 for the assessment year 2003-04. 3. The Income Tax Appellate Tribunal allowed the misc. application and recalled its order dated 30.5.2008. In the opening paragraph of the order dated 30.5.2008, it was stated that the appeal has been filed by the assessee against the order of CIT (A) dated 12.10.2007 for the assessment year 2003-04, in which the assessee has raised 14 grounds disputing the assessment of income and also various additions made by the Assessing Officer. The assessee had also filed an application under Section 253 (5) of the Act for condonation of delay of 29 days in filing the appeal. 4. After condoning the delay the Tribunal decided the matter on merits. After narrating the facts of the case it observed in parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recall the order of the Tribunal dated 30.5.2008 under Section 254 (2) of the Act alleging that the Tribunal did not consider and decide ground nos. 7, 8 and 9 taken by the assessee. By these grounds the assessee had primarily objected that the ITO could not have determined the income of the assessee to his best judgment unless he had first rejected the books of accounts. 6. The Tribunal thereafter proceeded to allow the recall application to the limited extent of considering ground no.2 as follows:- "3. After hearing the ld. D.R and considering the material on record, we find that the contention of the assessee is partly correct. The Tribunal has not disposed of the ground no.2, which reads as under: "2. That the assessee has receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievance of the assessee when it moved the Misc. Application." 8. Shri Bharat Ji Agarwal, appearing for the revenue submits that the recall application was not maintainable to decide the matter all over again. It was not a case of mistake apparent from the record to recall the entire order. The Tribunal was not required to consider each and every ground taken in the appeal unless the appellant specifically pressed such ground/s. From the entire order of the Tribunal, it does not appear that the assessee had pressed any of the ground nos. 7, 8 and 9 or even ground no. 2, which goes to the very jurisdiction of the ITO. Shri Bharat Ji Agarwal submits that even if an application for rectification of mistake apparent from the record is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ground no.2 and thus the Tribunal did not commit any mistake in finding that since ground no.2 has not been adjudicated. The Tribunal recalled the order to the limited extent. 11. The powers of review, rectification and recall are clearly understood in legal term. The power of review may be exercised, where there is an error apparent on the fact of record to be considered and decided by the judicial or quasi judicial authority. The power of rectifying the mistake is different in nature. If the mistake has crept in the order by way of inadvertence or for any reason whatsoever, the judicial or quasi judicial authority can amend any order passed by it, but that such power cannot be used to review the judgment and to consider the grounds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, which is substance of ground nos. 7, 8 and 9, the applicant virtually wanted the rehearing of the appeal by the Tribunal. The Tribunal committed gross error of law in recalling its order and also stating that recall is only to the limited extent. 15. On the aforesaid discussions, we find that the Tribunal erred in law in recalling its order on the pretext of rectifying the mistake, and permitting itself to rehear the matter as if it was exercising the power of appeal over its own judgment. 16. For the aforesaid reasons, both the substantial questions of law are decided in favour of the revenue and against the respondent assessee. The Income Tax Appeal is allowed. The order dated 13.2.2009 is set aside. By way of caution, we may mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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