9911796707
TMI Blog1995 (2) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... e pendency of the writ petition, the order was passed by respondent No. 2 on the petitioner's application under section 254(2) of the Act on June 23, 1994, the petitioner further seeks quashing of the same, which is annexed as annexure SA-2 to the supplementary affidavit. The brief facts are, the petitioner started selling her agricultural land in plots from the assessment year 1976-77 and continued to sell up to the assessment year 1982-83. The Income-tax Officer initially treated the sale of plots as an adventure in the nature of trade/business as against capital gain claimed by the assessee. This issue was finally decided by the Income-tax Appellate Tribunal by its order dated July 9, 1984, holding the sale of plots as business activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent on the face of the record. Against this, the Department preferred second appeal before respondent No. 2. The Tribunal allowed the Department's appeal by order dated May 14, 1980 (impugned). Thereafter the petitioner moved an application before respondent No. 2 under section 254(2) on September 24, 1990, for rectifying the said order. The Tribunal passed a one line order "no hearing" on October 29, 1990, which is also impugned. On April 9, 1991, again a request was made to respondent No. 2 to hear and decide the application under section 254(2) on the merits. Thereafter through a supplementary affidavit it is averred that on June 23, 1994, the Tribunal passed an order dismissing the aforesaid application of the petitioner, which has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mistake for the year 1982-83 is sustainable or not? The argument on behalf of the petitioner is, it is mistake apparent on the face of the record and respondent No. 2 refusing to rectify has committed an illegality. On behalf of the Revenue, the contention is: Firstly, as petitioner did not prefer an appeal against the assessment order dated January 28, 1984, passed under section 143(3) for the year in question, thus the present application for rectification is not maintainable as the assessment order, in law, has become final, Secondly, only on account of the subsequent decision of the Tribunal would not be a ground for rectification to be classified as mistake which is apparent on the face of the record within the meaning both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 254(2), which was made on October 29, 1984. Next reliance is placed on ITO v. ITAT [1987] 168 ITR 809 (Raj). In this case, the Tribunal dismissed an appeal filed by respondent No. 2. The said respondent moved an application under section 254(2). The Tribunal, thereafter by order allowed the application on the ground, the original order did contain mistake and thereby conclusion drawn was wrong. It was further observed that since the other member was not a party to the original order, the order was recalled and the matter was ordered to be disposed of afresh. It is on these facts it is held that section 254(2) does not empower the Tribunal to review its own order under the garb of rectification. Again the facts of this case ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of U. P. [1977] UPTC 74 (All), which was again a case under section 22 of the U. P. Sales Tax Act. In this case assessment orders were passed treating the transaction as a works contract. Subsequently, similar transactions of the assessee in the earlier order were declared by the High Court as sales liable to tax. This led to rectification proceedings on the basis of this later judgment of the High Court. It was held that it is a mistake apparent on the face of the record and such rectification could be made under this section. This case, in fact, relied on the aforesaid case of Narain Chemical Industries [1970] UPTC 605 (All). The facts of the present case are not only based on declaration of law which came into existence later, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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