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TMI Blog2023 (5) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal has no power to adjudicate upon subsequent application u/s 254(2) of the Act. In view of the aforestated discussion, we find no force in the Misc. application filed by the Revenue which is rejected and dismissed. - M.A. No. 408/PUN/2022 Arising out of M.A. 97/PUN/2021 arising out of ITA No. 1672/PUN/2017 - - - Dated:- 21-4-2023 - SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER For the Applicant : Shri Ganesh B. Budruk For the Respondent : None ORDER PER SHRI PARTHA SARATHI CHAUDHURY , JM : This Miscellaneous Application has been preferred by the Revenue u/s.254(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) with a prayer to recall t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble ITAT in the Order dated 21.06.2022 of the Tribunal. 3. In view of this, it is submitted that the Order in MA No.971PUN/2021 (Arising out of ITA No. 1672 PUN/2017) contains mistake apparent from record. Hence, it is prayed that the Hon'ble Tribunal may be pleased to recall the order in the interest of Justice and pass suitable order. 3. In this Misc. application filed by the Department, the department is actually agitating one miscellaneous application against another miscellaneous application. The Revenue has filed this misc. application seeking recalling of the earlier M.A. passed in M.A. No. 97/PUN/2021 arising out of ITA No. 1672/PUN/2017 for A.Y. 2013-14. 4. We have heard the rival contentions and perused the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. 6. We find that on identical facts and circumstances and issues, the Pune Tribunal in M.A. No. 18/PUN/2019 against M.A. No. 49/PUN/2016 arising out of I.T.A No. 1916/PUN/2014 for .A.Y. 2007-08 in the case of I.T.O. Vs. Mercedes Benz Education Academy, Pune, order dated 14-5-2019, has categorically held that there is no provision in the Act to allow filing of Misc. application against the order passed by the Tribunal in another Misc. application. The relevant para is extracted as follows: The applicant-Revenue is aggrieved by the aforesaid directions of Tribunal in miscellaneous order that registration u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) of Section 254. The order referred to in Section 254(1) is one relating to an appeal filed either by the assessee or by the Revenue. The appeal referred to in the provision is one filed u/s 253. Therefore, the order which can be rectified must be one which has been passed by the Tribunal in an appeal filed u/s 253. An order rejecting an application for rectification u/s 254(2) cannot be rectified u/s 254(2). The same may relate to an appeal but is not an order passed by the Tribunal under sub-section (1) of Section 254 and thus, it was held that subsequent application filed by the assessee was rightly rejected by the Tribunal. (ii) In the case of Mentha Allied Products Co.Ltd. Vs. ITAT 244 ITR 470 (Del), after re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. 196 Taxman 385 (Ker.), it was held that the Tribunal was justified in refusing to entertain an application filed by the Revenue under Section 254(2) to rectify the order issued by the Tribunal in an earlier rectification application filed by the assessee, as the second application on the very same issue is not maintainable before the Tribunal. 11. In the case of Dr.S.Panneerselvam Vs. ACIT 319 ITR 135, it was held that the Tribunal having allowed first rectification petition, second petition was not maintainable; remedy by way of appeal was the only course open. 12. If the application filed by the assessee is viewed in the light of aforementioned judicial pronouncements, then it will become clear that the relief which i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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