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2006 DIGILAW 1031 (GAU)

Bharat Drug Stores v. Commissioner of Income Tax

2006-11-22

MAIBAM B.K.SINGH, P.G.AGARWAL

body2006
JUDGMENT Mutum B.K. Singh, J. 1. In this appeal filed under Section 260A of the Income Tax Act, 1961, the appellant assailed the orders dated 26-5-2003, and 31-3-2004, passed by the Income Tax Appellate Tribunal in I. T. A. No. 481 (Gau) of 1997 for the assessment year 1991-92 of the appellant. 2. For better appreciation, the facts, in brief, are that the appellant filed return for the assessment year 1991-92 showing the total income of Rs. 51,790. The assessing officer, on the basis of some documents recovered during the search of the assessee's premises, added a sum of Rs. 1,02,598 as additional income for the relevant assessment year. Being aggrieved by and dissatisfied with the order of the assessing officer, the assessee challenged the assessment order in Appeal No. 158 of 1994-95 before the Commissioner (Appeals). The Commissioner (Appeals) set aside the assessment order with a direction to make fresh assessment. Accordingly, the assessing officer reassessed vide order dated 10-2-1997, by adding a sum of Rs. 1,02,598 to the assessee's income as income from undisclosed sources. Being aggrieved by the said order the appellant again took the matter before the Commissioner (Appeals) and, vide order dated 27-6-1997, the Commissioner (Appeals) held that the addition of Rs. 1,02,598 was made wrongly and thus ordered for deletion. Against the said order of the learned Commissioner (Appeals), the revenue preferred an appeal before the Income Tax Appellate Tribunal, Guwahati Bench, Guwahati, in I. T. A. No. 481(Gau)/1997. The learned Tribunal partly allowed the appeal by restricting the addition to the extent of Rs. 87,598 only as income of the assessee from undisclosed sources for the assessment year 1991-92 vide order dated 26-5-2003. The appellant against the said order filed a miscellaneous application being MA No. 20 of 2003 before the Income Tax Appellate Tribunal, Guwahati Bench, Guwahati, under Section 254(2) of the Income Tax Act. The learned Income Tax Appellate Tribunal dismissed the application, vide order dated 31-3-2004,stating that the Tribunal cannot recall and rehear the appeal under Section 254(2)of the Act. 3. The orders of the learned Income Tax Appellate Tribunal, Guwahati Bench, Guwahati dated 26-5-2003, and 31-3-2004, are under challenge in this appeal. 4. We have heard Miss N. Hawelia, learned Counsel for the appellant, and Mr. U. Bhuyan, learned Counsel appearing for the respondents. 5. 3. The orders of the learned Income Tax Appellate Tribunal, Guwahati Bench, Guwahati dated 26-5-2003, and 31-3-2004, are under challenge in this appeal. 4. We have heard Miss N. Hawelia, learned Counsel for the appellant, and Mr. U. Bhuyan, learned Counsel appearing for the respondents. 5. During the course of hearing learned Counsel appearing for the respondents submits that the power exercisable by the learned Tribunal under Section 254(2) of the Act, was already decided by this Court in CIT v. Prahlad Rai Todi and that the present case is covered by the said decision. Admittedly, in the said case, it was held that under Section 254(2) of the Act. The Tribunal can rectify any mistake apparent from the record and to amend any order passed by it and to make such amendment if the mistake is brought to its notice by the assessing officer or by the assessee. The Tribunal cannot in law and facts recall its final order under Section 254(2) of the Act. In the said case, the Tribunal recalled its final order, which was challenged before the High Court. In the present case, the learned Tribunal, vide order dated 31-3-2004, rightly rejected the application by holding that under Section 254(2) of the Act the Tribunal cannot recall its original order and rehear the same. 6. On perusal of the pleaded facts and after hearing the contention of both sides we find that the appellant has filed the present appeal challenging the order of the Appellate Tribunal dated 26-5-2003, mainly on the basis of the observations made by the learned Tribunal while passing the order dated 31-3-2004, in M.A. Nos. 20 and 21 of 2003 arising out of I. T. A. No. 481(Gau)/1997 for the assessment year 1991-92 and I. T. A. No. 457(Gau)/1998 for the assessment year 1992-93 and also the order of rejection of the miscellaneous application. As discussed hereinabove, the learned Tribunal has no power to rehear the matter touching the merit, which was finally decided, and as such the learned Tribunal should not have made any observation relating to the merit of the case while exercising the power under Section 254(2) of the Income Tax Act. 7. As discussed hereinabove, the learned Tribunal has no power to rehear the matter touching the merit, which was finally decided, and as such the learned Tribunal should not have made any observation relating to the merit of the case while exercising the power under Section 254(2) of the Income Tax Act. 7. Considering the above facts, we are of the view that no substantial question of law is involved in this case as the learned Appellate Tribunal has rejected the miscellaneous application filed by the appellant as per the provision of law. In the result, the appeal stands dismissed.