COMMISSIONER OF INCOME-TAX VS TIRUPATI CONSTRUCTION CO., 2001 PTD-MADHYA-PRADESH-HIGH-COURT-INDIA 3831 (1999)

(a) Income‑tax‑‑‑

‑‑‑‑Reference‑‑‑Appeal to Appellate Tribunal‑‑‑Powers of Tribunal‑‑ Tribunal finding that its order contained a factual error‑‑‑Tribunal justified. in recalling its order and rehearing appeal‑‑‑No question of law arose‑‑‑Indian Income Tax Act, 1961, S. 256(2).

(b) Income‑tax‑‑‑

‑‑‑‑Reference‑‑‑Question not arising from order of Tribunal cannot be referred‑‑‑ Indian Income Tax Act, 1961, S.256(2).

Held, dismissing the application to direct reference, (i) that the Tribunal found that a factual error had crept in the order. It, therefore, recalled its first order and directed rehearing of the appeal. No question of law arose from its order.

(ii) That the question whether the Tribunal had power to review its order, whether it was justified in invoking the provisions of section 254(2) of the income Tax Act, 1961, and whether its order was perverse, did not arise from its order and could not be referred.

S.K. Pawnekar for the Commissioner.

Nemo for the Assessee.

JUDGMENT

B.A. KHAN, J.‑‑‑The Revenue has filed this application under section 256(2) of the Income‑tax Act for directing the Tribunal to refer the following questions, stated to be questions of law for the opinion of this Court:

"(i) Whether, on the facts and in the circumstances of the case, the material contained .in the Income‑tax Appellate Tribunal's order in M.As. Nos.50 and 51/Ind of 1990, dated November 30, 1990, justifies recalling its earlier order in I.T.As. Nos.842 and 843 IInd of 1985; 691 and 692/Ind of 1987 and 833/Ind of 1985, dated September 4, 1990?

(ii)Whether, on the facts and in the circumstances of the case, the Tribunal has power to review its order?

(iii)Whether, the Tribunal was justified in invoking the provisions of section 254(2) when there was no mistake apparent from the record?

(iv)Whether, on the facts and in the circumstances of the case, the Tribunal's order is apparently perverse?"

It transpires that assessee filed the return for the assessment years 1975‑76/1977‑78 culminating in the assessments made on its total income of Rs.19,180 and Rs.46,223. The Income assessed was confirmed in appeal by the Appellate Assistant Commissioner but reduced to Rs.18,360and Rs.44,104 by the Income‑tax Appellate, Tribunal.

It appears that the assessee was alleged to have committed a default as envisaged under section 271(1)(c) culminating in imposition of penalty of Rs.12,293 and Rs.11,374 for the relevant assessment years. The matter was taken to the Income‑tax Appellate Tribunal and the Tribunal passed a consolidated order, dated September 4, 1990, confirming the penalty. Subsequently, the assessee filed a miscellaneous application holding that the Tribunal had committed a mistake in passing the order. Upon this the Tribunal passed an, order, dated November 30, 1990, finding that factual error had crept in the order. It, therefore, recalled its first order, dated November 30, 1990, and directed rehearing of the appeal.

The Revenue felt aggrieved and filed an application under section 256(2) asking the Tribunal to refer the abovestated questions for opinion of this Court. The Tribunal found that Questions Nos.2,. 3 and 4 did not arise out of its order and that Question No. 1 was not referable because it was based on appreciation of facts on record.

The Revenue has now filed this application under section 256(2) for directing the Tribunal to refer these questions for opinion of this Court.

Heard learned counsel and examined the record. Nothing was canvassed or pointed out by the Revenue's counsel to show that Questions Nos.2, 3 and 4 did arise from the Tribunal's order, dated November 30, 1990, or that Question No. l for that matter gave rise to the question of law. Therefore, we find no merit in this application which is rejected.

M.B.A./658/FC Application rejected.