Income-tax---

---Appeal to Appellate Tribunal---Power of Tribunal to recall its order---On appeal before Tribunal assessee raising ground regarding disallowance of development rebate and relief under S.80-J---Tribunal holding particular ground in memorandum of appeal, became redundant because ITO had already passed order under S.154 giving relief to assessee---Subsequently Tribunal finding that assumption on which it decided the ground that relief had already been granted to assessee was incorrect---Was a mistake apparent from record---Tribunal has jurisdiction to rectify the mistake by recalling its order---Indian Income Tax Act, 1961, S.254(2).

In an appeal before the Income-tax Appellate Tribunal the assessee had raised a ground regarding the disallowance of development rebate and relief under section 80-J of the Income Tax Act, 1961. The Tribunal while deciding the said appeal pertaining to the assessment year 1973-74 decided the said ground as follows: "Ground No.5 of the memorandum of appeal also has become redundant because the Income-tax Officer has already passed the order under section 154 of the Act giving relief to the assessee regarding development rebate and relief under section 80-J of the Income-tax Act, 1961". Subsequently, it transpired that the application under section 154 of the Act that was moved by the assessee was rejected and the assumption on which the Tribunal had decided ground No.5 that relief had already been allowed to the assessee through an order under section 154 was incorrect. On an application filed by the assessee, the Tribunal recalled its earlier order to the extent of the decision on ground No.5 and restored the appeal to its file to that limited extent for fresh disposal in accordance with law, On the question whether the Tribunal was correct in recalling its order' and in restoring its appeal to its file for fresh disposal:

Held, that the Tribunal's observation regarding ground No.5 that the said ground had become redundant because the Income-tax Officer had already passed the order under section 154 of the Act giving relief to the assessee was mistaken, was a mistake apparent from the record and, therefore, under the specific powers conferred on the Tribunal by subsection (2) of section 254 of the Act, the Tribunal had jurisdiction to rectify the mistake and the mistake could be rectified only by recalling the order in so far as it related to ground No.5 and disposing of that ground in the appeal afresh after hearing the parties.

R. K. Agarwal for the Commissioner.

Pravin Mishra and Bharat Ji Agarwal for the Assessee.

JUDGMENT

In pursuance of the direction of this Court under section 256(2) of the Income Tax Act, 1961, the Income-tax Appellate Tribunal, Delhi Bench "A", has referred the following question of law for the opinion of this Court:

"Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in recalling its order. dated January 4, 1978, in I.T.A. No. 618 (Delhi) of t 476-77 and in restoring the appeal to its file for fresh disposal?"

We have heard Sri R. K. Agarwal, learned standing counsel for the Revenue, and Sri Pravin Mishra, Advocate, holding brief for Sri Bharat Ji Agarwal, for the assessee.

In an appeal before the Income-tax Appellate Tribunal the assessee had raised ground No. 5 regarding the disallowance of development rebate and relief under section 80J of the Act. The Tribunal while deciding the said appeal pertaining to the assessment year 1973-74 decided the said ground No.5 as follows:

"Ground No.5 of the memorandum of appeal also has become redundant because the Income-tax Officer has already passed the order under section 154 of the Act giving relief to the assessee regarding development rebate and relief under section 80J of the Income Tax Act, 1961. The order of the Income-take to officer passed under section 154 of the Act is on the paper book." Subsequently, it transpired that the application under section 154 of the Act that was moved by the assessee was rejected and the assumption on which the Tribunal decided ground No.5 that relief had already been allowed to the assessee through an order under section 154 was incorrect. On an application moved by the assessee, the Tribunal recalled its order dated January 4, 1978, to the extent of the decision on ground No.5 and restored the appeal to its file to that limited extent for fresh disposal in accordance with law.

The question, therefore, is whether the Tribunal could do so?

It is not in dispute that the Tribunal's observations regarding ground No.5 that the said ground has become redundant because the Income-tax Officer has already passed the order under section 154 of the Act giving relief to the assessee was mistaken. This was a mistake apparent from the record and, therefore, under the specific powers conferred on the Tribunal by subsection (2) of section 254 of the. Act, the Tribunal had jurisdiction to rectify the mistake and the mistake could be rectified only by recalling the order in so far as it related to ground No.5 and disposing of that ground raised in the appeal afresh after hearing the parties.

We, therefore, do not see any error in the Tribunal's order and the question reproduced above is, therefore, 'answered in the affirmative in favour of the assessee-respondent and against the Revenue.

M.B.A. /4111/FC ?????????????????????????????????????????????????????????????????????????????? Reference answered.