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TMI Blog2008 (4) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 61/Ind/2003. By the order impugned the income-tax Appellate Tribunal allowed the application filed by the under section 254(2) of the Act. Hence, this appeal, which was admitted for final hearing on the following substantial questions of law : "(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in entertaining the application made by the assessee under section 254(2) of the Income-tax Act, seeking recalling of the original appellate order dated October 17, 2003, passed in I. T. A. No. 577/Ind/98? (ii) Whether any case as required under section 254(2) of the Income-tax Act is made out for the purpose of recalling the well reasoned orders passed on the merits after giving due opportunity to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined on the basis of the material already available on record, the Commissioner of Income-tax (Appeals) allowed the assessee to raise the additional ground. The Commissioner of Income-tax (Appeals) after hearing the rival submissions, by a detailed order accepted the contention of the assessee that the pre-operative expenses intended to be capitalised, be treated as business loss and loss so determined be carried forward to set off against future income. Against the order of the Commissioner of Income-tax (Appeals) based on this finding, the Revenue preferred an appeal to the Income-tax Appellate Tribunal. 4. The Income-tax Appellate Tribunal by order dated October 17, 2003, found that the Commissioner of Income-tax (Appeals) did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT v. Roop Narain Sardar Mal [2004] 267 ITR 601, CIT v. Bannalal Jat [2005] 273 ITR 259 and a decision of this court reported in CIT v. Malwa Texturising P. Ltd. [2007] 292 ITR 488. 7. Per contra, Shri Chaphekar, learned senior counsel appearing for the assessee, submitted that the order of the Income-tax Appellate Tribunal passed in appeal suffered from an error apparent from the record. When this was pointed out by filing application under section 254(2), the Income-tax Appellate Tribunal rightly allowed the miscellaneous application and recalled its own order dated October 17, 2003, by the order impugned. According to learned counsel by no stretch of imagination, it could be. said that in the garb of exercising powers under section 254( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 254(2), when it was pointed out that the decision of a co-ordinate Bench escaped the Income-tax Appellate Tribunal's attention at the time of passing of the final order. The order of the Income-tax Appellate Tribunal was challenged by the Revenue in appeal to the High Court. The said appeal was allowed and against the order of the High Court, the assessee went to the Supreme Court. In this factual back-drop, it was held that section 254(2) is based on the fundamental principle that no party should be prejudiced on account of mistake, error or omission. Adornment to the wronged party by the court or the Tribunal for the mistake, error or omission has nothing to do with the concept of inherent power of review. In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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