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TMI Blog2015 (4) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal. 2. That order was passed on the petitioner-assessee's application invoking powers of the Tribunal under section 254(2) of the Income Tax Act, 1961. 3. The Misc. Application No.194/M/2013 was filed by the petitionerassessee seeking a rectification of the mistake in the initial order passed by the Tribunal under Income Tax Appeal No.3969/Mum/2012 for assessment year 2007-08. In the application by the assessee, petitioner before us, it was pointed out that there are certain mistakes and which need to be rectified. That application and copy of which has been annexed to this Writ Petition paper book at page 119 to 127 requests the Tribunal to correct such errors. The ultimate prayer therein is that the order on 16th Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the position, then, the Tribunal can amend its initial order passed under subsection( 2) of section 254. That can be done by the Tribunal if the mistake is brought to its notice by the assessee or the Assessing Officer. 6. These two provisions, namely, subsection (1) and (2) of section 254 read as under:- "Section 254(1). The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1), and shall make such amendment if the mistake is brought to its notice b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsection (2) of section 254 if the same seeks a relief beyond its powers under that provision or is seeking complete recall or review of the initial order. On such grounds and similar to those raised in a Appeal one can understand the approach of the Tribunal in not granting the application but the application cannot be thrown out at the threshold merely because a Appeal under section 260A of the Income Tax has been filed before this Court and is pending. Dr. Shivram submits that this understanding of the legal provision by the Tribunal as reflected in the impugned order ought to be immediately setright and corrected or the Tribunal would perpetuate the above view even in further matters. 8. Mr. Pinto, the learned counsel, appearing on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such an amendment shall not be made under this subsection unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. We are not confronted with such a situation. What we are called upon to decide is the correctness of the view taken by the Tribunal and that the judicial propriety does not allow the petitionerassessee to seek a full remedy similar before two authorities and in particular where the issue is pending for admission before higher forum. 10. The least that can be said about the understanding of the legal provision by the Tribunal is that it is ex facie incorrect and erroneous. Merely because the assessee has challenged the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king to invoke the powers under subsection (2) of section 254 of the Income Tax Act, 1961 being Misc. Application No.194/M/2013 shall now be heard by the Tribunal and it shall be decided in accordance with law. The Tribunal shall hear both sides and passed a reasoned order on the said application as expeditiously as possible and, in any event, within a period of six weeks from the date of receipt of the copy of this order. We clarify that beyond the issue of maintainability and jurisdiction of the Tribunal to deal with the application of the above nature, we have observed nothing on the merits or demerits of this application. All contentions of both sides on the merits of the rectification application are kept open. They can be raised befor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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