JUDGMENT 1. - This appeal is directed against judgment of learned Single Judge dated 08.05.2009 by which writ petition filed by respondent Apex Metchem (P) Limited (hereinafter shall be referred to as 'the respondent assessee') against order of Income Tax Appellate Tribunal, Jaipur Bench, Jaipur (for short, 'ITAT, Jaipur') dated 31.03.2008 passed in Misc. Appl.8/JP/2008 in exercise of powers under Section 254(2) of the Income Tax Act, 1961 (for short, the Act of 1961') was allowed and consequential order dated 20.08.2008 of President ITAT for transferring appeals (IT Sections No. 105/JP/04 and 35/JP/05) to Mumbai Bench, was quashed and set aside. The ITAT vide its order dated 31.03.2008 had recalled its earlier order dated 29.03.2006 and further directed both the appeals to be heard by ITAT Mumbai Bench, Mumbai, in terms of order dated 04.04.2005 of the President ITAT, Mumbai. The ITAT suo motu section notice under Section 254(2) of the Act vide order dated 15.12.2007 to the respondent assessee for rectification on the premise that respondent assessee while questioning the substantive assesseement under Section 158 BD of the Act filed by them at Jaipur Bench did not disclose this material information to the Bench that in between on their application for consolidation of appeals for hearing, the President of ITAT allowed the consolidation of appeals with those filed by Mayur M. Thakkar questioning protective assesseement under Section 158 BC against them at Mumbai Bench to be heard at Mumbai Bench. The Tribunal held that the order of the President of ITAT for consolidation of appeals for hearing at Mumbai Bench has remained to be gone through by Jaipur Bench of the Tribunal while proceeding for hearing of the appeals by Jaipur Bench, which has resulted into a mistake apparent from the record as otherwise, appeals pending at Jaipur Bench could not have been heard and decided by Jaipur Bench. 2. Perusal of impugned judgment of Single Bench reveals that the learned Single Judge has allowed the writ petition on the premise that the order of the President dated 04.04.2005 passed under Rule 4 of the Income Tax Appellate Tribunal Rules, 1963 sought to consolidate the appeal filed by the respondent assessee with an application for intervention against order of Commissioner of Income-Tax (Appeals), Mumbai, dated 30.04.2003 with appeal of Mayur M. Thakkar against same order. There was no direction for consolidation of any of those appeals with that of the appeal filed by respondent assessee at Jaipur Bench of the ITAT against order of the CIT (Appeals) III, Jaipur, dated 14.12.2004. It was, therefore, held that there was no mistake apparent from the record. 3. Shri Anuroop Singh, learned counsel for appellants, has argued that the writ petition was not maintainable for questioning validity of the order passed by the ITAT under Section 254(2) of the Act, which inter-alia provides that the Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the assessing officer. It is settled law that in making the rectification, the ITAT can completely recall its order. Reliance in this behalf is made to judgment of Madras High court in Lakshmi Vilas Bank Limited v. Income Tax Appellate Tribunal and others - (2010) 329 ITR 564 (Mad). 4. It was argued that appeal is provided to High Court under Section 260A of the Act against the order passed under the said Act. Since the appeal was not filed, the writ petition was not maintainable. In support of this argument, learned counsel has relied on judgment of Karnataka High Court in Deputy Commissioner of Income Tax v. H.V. Shantharam - (2003) 179 ITR (Kar) 156. Shri Anuroop Singhi, learned counsel for appellant, relying on judgmnet of Karnataka High Court in L. Sohanraj and others v. Deputy Commissioner of Income-tax and another - (2003) 260 ITR (Karp.) 147 , argued that only appeal would be maintainable against order of Income-tax Appellate Tribunal refusing rectification of mistakes apparent on the face of the record and that too on a substantial question of law. To the same effect, reliance has been placed on Judgment of Madras High Court in Lakshmi Vilas Bank Limited v. Income-tax Appelalte Tribunal and others - (2010) 329 ITR 564 (Mad) . Learned counsel also cited judgmnet of Madras High Court in Dr. To the same effect, reliance has been placed on Judgment of Madras High Court in Lakshmi Vilas Bank Limited v. Income-tax Appelalte Tribunal and others - (2010) 329 ITR 564 (Mad) . Learned counsel also cited judgmnet of Madras High Court in Dr. S. Panneerselvam v. Assistant Commissioner of Income-tax and another - (2009) 319 ITR 135 (Mad) on the proposition of law that an order passed under Section 254(2) of the Income-tax Act, 1961 either allowing amendment or refusing to amend gets merged with the original order passed and thereafter the same continues to be an order under Section 254(1) of the Act of 1961. Successive applications for rectification of original order cannot be maintained. To the same effect, learned counsel has relied on judgmnet of Karnataka High Court in Deputy Commissioner of Income-tax v. H.V. Shantharam - (2003) 260 ITR (Karn.) 156 and Division Bench judgment of Karnataka High Court in L. Sohanraj and others v. Deputy Commissioner of Income-tax and another - (2003) 260 ITR (Karn.) 155 . 5. On merits, learned counsel has argued that fact about consolidation of appeals ordered by President of the ITAT in order dated 04.04.2005 was fully known to the respondent assessee. In order to take undue advantage of the situation, the respondent assessee did not disclose this fact to the ITAT. The Director of M/s. Apex Metchem (P) Limited, Jaipur, himself made application to the Vice President, ITAT, Mumbai, for consolidation of their appeal with Application ITSAA No. 553/M/2003, which was filed by Mayur M. Thakkar. Having procured favourable order from the ITAT, Jaipur Bench, by making this concealment, the respondent assessee later on withdrew the appeal filed before the Mumbai Bench of the ITAT by submitting application dated 13.08.2007. Had this fact been brought to the notice of Jaipur Bench, then possibly the appeals filed by the respondent assessee would have been transferred to Mumbai Bench of ITAT to be heard along-with other two appeals or would have been kept pending to await decision of the Mumbai Bench. The learned Single Judge has failed to appreciate this aspect of the matter, therefore this appeal be allowed and writ petition be dismissed. 6. The learned Single Judge has failed to appreciate this aspect of the matter, therefore this appeal be allowed and writ petition be dismissed. 6. Per contra, Shri Atul Saxena, learned counsel for the respondent assessee opposed the appeal and submitted that the appeal was preferred by respondent assessee at Jaipur against the order of CIT (Appeals) Jaipur dated 14.12.2004 thereby questioning tentative assesseement order dated 23.07.2004 under Section 158BD, being Appeals No,105/JP/2004 and 25/JP/2005. Whereas the appeal was preferred by Shri Mayur M. Thakkar questioning the protective assesseement under Section 158 BC against them at Mumbai Bench against order of CIT (Appeals) Mumbai dated 30.06.2003, whereby original assesseement order dated 31.03.2001 was upheld. The respondent herein submitted an application for intervention and also an appeal against aforesaid order dated 30.06.2003 feeling aggrieved by certain observations/findings recorded therein against them. Their this appeal at Mumbai was registered as Appeal No. 97/Uai/04. Application dated 28.11.2004 was made for consolidation of this appeal with appeal of M/s. Apex Metchem (P) Limited because they were both directed against common order of CIT (Appeals) Mumbai, dated 30.04.2003. This fact is proved from the order of the President, ITAT, Mumbai, dated 04.04.2005, which is on record. 7. On the question of maintainability, learned counsel for respondent assessee argued that appeal is provided under Section 260A against an order passed in appeal and order of rectification under Section 254(2) cannot be held to be passed in appeal, rather such order is passed in rectification proceedings. In support of this argument, learned counsel has relied on the Division Bench judgment of Bombay High Court in Chem Amit v. ACIT (2005) 272 ITR 397 (Bom), judgment of Calcutta High Court in Shaw Wallance & Com. In support of this argument, learned counsel has relied on the Division Bench judgment of Bombay High Court in Chem Amit v. ACIT (2005) 272 ITR 397 (Bom), judgment of Calcutta High Court in Shaw Wallance & Com. Ltd. v. ITAT & Others - (1999) 240 ITR 279 (Cal.), Division Bench judgment of Orissa High Court in CIT v. ITAT & Others - (1992) 196 ITR 683 , judgment of Madras High Court In Visvas Promoters (P) Limited v. ITAT & Others - (2010) 323 ITR 114 (Madras), Division Bench judgment of Andhra Pradesh High Court in CIT & Others v. ITAT & Others - (1994) 118 CTR (AP) 187, judgment of this court in Madhav Marbles & Granites v. ITAT and others - (2012) 246 CTR (Raj.) 243 , Full Bench judgment of Karnataka High Court In The Commissioner Bubli - Darwad Municipal Corp v. Shrishall & Others - AIR 2004 Karnataka 75 and Constitution Bench judgment of the Supreme Court in M/s Ganpat Rai Hiralal and another v. The Agarwal Chambers of Commerce Limited - AIR 1952 SC 409 . 8. Learned counsel for respondent assessee argued that the ITAT in any case could not have recalled the entire order in the scope of rectification proceedings as it amounted to review and recall of the judgment. Section 254(2) of the Act does not empower the ITAT to review and recall its own order under the garb of rectification. In support of this argument, learned counsel has relied on the judgment of this court in Income Tax office v. Income Tax Appellate Tribunal and others - (1987) 168 ITR 809 (Raj.) and Division Bench judgment of Gujarat High Court in Commissioner of Income Tax v. Prahlad Rai Todi - (2001) 251 ITR 833 (Gau.). Learned counsel argued that the ITAT has jurisdiction to rectify the mistake apparent from the record. Scope of Section 254(2). Is restricted to rectification of mistake. Recalling the entire order would tantamount to passing a fresh order, which is not the legislative intent. Learned counsel argued that the ITAT has jurisdiction to rectify the mistake apparent from the record. Scope of Section 254(2). Is restricted to rectification of mistake. Recalling the entire order would tantamount to passing a fresh order, which is not the legislative intent. Reliance in this behalf has been placed on the Division Bench judgment of Orissa High Court in Commissioner of Income Tax & Another v. Income Tax Appellate Tribunal & Another - (1992) 196 ITR 640 (Ori.) and Division Bench judgment of the Delhi High Court In Commissioner of Income Tax v. Income Tax Appellate Tribunal & Others - (2007) 293 ITR 118 (Del.) . To the same effect, learned counsel has also relied on judgment of Calcutta High Court in Niranjan & Co. Ltd. v. ITAT - (1980) 122 ITR 519 (Cal.), Division Bench judgment of the Delhi High Court In Commissioner of Income Tax v. Vichtra Construction (P) Ltd. - (2004) 269 ITR 371 , judgment of Delhi High Court in Ms. Deeksha Suri & Others v. Income Tax Appellate Tribunal - (1998) 232 ITR 395 (Del.) and judgment of Patna High Court in Income Tax officer v. Income Tax Appellate Tribunal & Another - (1998) 229 ITR 651 (Pat.) . It is, therefore, prayed that the appeal be dismissed. 9. We have given our anxious consideration to rival submission and perused the material on record. 10. We shall first of all deal with the objection as to maintainability of the writ petition urged on the premises that since the appeal lay against the order of rectification, the writ petition ought not to have been entertained. Section 260A of the Act provides that an appeal shall lie to the High Court from every order passed in the appeal by the Appellate Tribunal, if the High Court Is satisfied that the case Involves a substantial question of law. The appeal is therefore provided to the High Court against "every order passed In appeal by the Appellate Tribunal". The order of rectification passed by the ITAT cannot be held to be an order passed in appeal because order in appeal is passed in the scope of sub-section (1) of Section 254 of the Act, whereas rectification order is passed under sub-section (2) of Section 254. Two are distinct and separate provisions. The order of rectification passed by the ITAT cannot be held to be an order passed in appeal because order in appeal is passed in the scope of sub-section (1) of Section 254 of the Act, whereas rectification order is passed under sub-section (2) of Section 254. Two are distinct and separate provisions. The other judgments relied on by the learned counsel of different High Courts Including that of this court are from Single Benches. We are in respectful agreement with the law on this question enunciated by the Division Bench of the Bombay High Court in Para 6 of the report, which is as follows: "6. In Durga Engineering and Foundry Works [2000] 245 ITR 272, the Supreme Court held that the reference under Section 256 of the Income-tax Act, 1961, could be made from the order of the Appellate Tribunal passed on the application for rectification under Section 254(2). That was so held by the Supreme Court In the light of the language of Section 256 which empowered the assessee and the Revenue to "require the Appellate Tribunal to refer to the High Court any question of law arising out of an order passed under Section 254". Section 254 comprises two sub-sections. Sub-section (1) of Section 254 provides that the Appellate Tribunal may passed such order on an appeal as it thinks fit after giving both the parties to the appeal an opportunity of being heard. Sub-section (2) of Section 254 permits the Tribunal to rectify any mistake apparent from the record and amend any order passed under Sub-section (1) within four years from the date of the order. The expression employed in Section 260A that provides for an appeal to the High Court is materially different from the expression used in Section 256 that empowers the assessee and the Revenue to require the Appellate Tribunal to refer to the High Court any question of law. As already noticed above, in Section 256 the expression used is, "require the Appellate Tribunal to refer to the High Court any question of law arising out of an order passed under Section 254". However, in Section 260A, the Legislature has not provided an appeal to the High Court from every order passed under Section 254 but has confined it to the order passed in appeal by the Appellate Tribunal. However, in Section 260A, the Legislature has not provided an appeal to the High Court from every order passed under Section 254 but has confined it to the order passed in appeal by the Appellate Tribunal. This is made clear by the use of the expression, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal". If the Legislature intended to provide an appeal to the High Court from the order passed by the Appellate Tribunal on the application for rectification under Section 254(2), the Legislature would not have used the expression in Section 260A that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, but instead used the expression as is used in Section 256 that an appeal shall lie to the High Court from every order passed under Section 254. The expression, "an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal" in Section 260A cannot be equated with the expression, "an appeal shall lie to the High Court from every order passed under Section 254". In Durga Engineering and Foundry Works [2000] 245 ITR 272, also the Supreme Court observed that "Section 256 contemplates the reference of the question of law arising out of an order passed under Section 254; that is to say, an order passed both under Section 254(4) and Section 254(2)". We have already highlighted the departure of the language In Section 260A from the language occurring in Section 256." 11. Coming now to the question whether the Tribunal in the scope of Section 254(2) of the Act can completely recall the order in the scope of rectification of mistake apparent from the record under Section 254(2) of the Act, learned counsel has relied on the judgments of the High Courts in the cited cases but those judgments should be taken to have been impliedly overruled by a recent judgment of the Supreme Court in Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd (2008) 14 SCC 171 , wherein it has been held by the Supreme Court that sub-section (2) of Section 254 of the Act enacts that the Tribunal may at any time within four years from the date of the order rectify any mistake apparent from the record suo motu. The Tribunal shall rectify such mistake if it is brought to notice of the Tribunal by the assessee or the 'Assessing officer Sub-section (2) thus covers two distinct situations; (I) it enables the Tribunal at any time within four years from the date of the order to amend any order passed under sub-section (1) with a view to rectify any mistake apparent from the record; and (ii) it requires the Tribunal to make such amendment if the mistake is brought to its notice by the assessee or the Assessing officer. 12. In that case before the Supreme Court, certain decision was rendered in appeal by the Income Tax Appellate Tribunal, Rajkot. Miscellaneous Application came to be filed by the assessee under sub-section (2) of Section 254 of the Act stating therein that a decision of the 'Jurisdictional Court', i.e. the High Court of Gujarat in Hiralal Bhagwati v. Commissioner of Income Tax, (2000) 246 ITR 188 , was not brought to the notice of the Tribunal and thus there was a 'mistake apparent from record'; which required rectif ication. Core issue, therefore, was whether non-consideration of a decision of Jurisdictional Court or of the Supreme Court, can be said to be a 'mistake apparent from the record?' The High Court held that the Tribunal was right in holding that such a mistake can be said to be a "mistake apparent from the record"; which could be rectified under Section 254(2). Similar argument, as has been made before us on behalf of the assessee, was also raised before the Supreme Court that recalling the order in the name of rectification would tantamount to reviewing the order, which is not permissible In the scope of sub-section (2) of Section 254 of the Act. The argument was rejected by the Supreme Court holding that the core issue would be whether non-consideration of the decision of the Jurisdictional court i.e. the Gujarat High Court or of the Supreme Court, can be said to be a mistake apparent on the face of the record. It was held that both the Tribunal as well as High Court were right in holding that such a mistake can be said to be a mistake apparent on the face of the record, which could be rectified under Section 254(2). It was held that rectification of an order stems from the fundamental principle that justice Is above all. It was held that both the Tribunal as well as High Court were right in holding that such a mistake can be said to be a mistake apparent on the face of the record, which could be rectified under Section 254(2). It was held that rectification of an order stems from the fundamental principle that justice Is above all. It is exercised to remove the error and to disturb the finality. It was held that the Tribunal did not commit any error of law or of jurisdiction exercising its power under sub-section (2) of Section 254 of the Act in rectifying the mistake apparent from the record by completely recalling the order. 13. Number of decisions to the contrary cited by the learned counsel for the respondent assessee cannot be said to hold good now in view of the recent judgment of the Supreme Court. It cannot be accepted a law of general proposition that in every situation, an order of recall would involve review and therefore would be barred in the scope of Section 254(2) of the Act. It would depend on the facts situation of the given case whether recall of an order would amount to rectification of the mistake apparent on the face of record or otherwise. A patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. What would be the "mistake apparent from record", was spelt out by the Supreme Court in Para 30 of the report in aforementioned case of Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd ., as under: "30. The main question, therefore, is: What is a 'mistake apparent from the record'? Now, a similar expression 'error apparent on the face of the record' came up for consideration before courts while exercising certiorari jurisdiction under Articles 32 and 226 of the Constitution. In T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526 , this Court held that "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". In T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526 , this Court held that "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". It was, however, conceded in all leading cases that it is very difficult to define an "error apparent on the face of the record" precisely, scientifically and with certainty." 14. Having held so, that even order of recall would be permissible in a given situation in the scope of rectification power of the Tribunal under Section 254(2) of the Act, we have to analyze whether in the facts of the present case the Tribunal was justified in recalling the order. At this stage, we are informed by the learned counsel for the respondent assessee that appeal filed by his client being Appeal No. 97/Jai/04, which was against order of CIT (Appeal) Bombay, dated 30.04.2003, which was to be heard along-with Appeal No. 35/JP/05 filed by Mayur M. Thakkar, has already been withdrawn by the respondent assessee. The appeal No. 35/JP/05 filed by Mayur M. Thakkar has since been decided by the ITAT Mumbai Bench on merits. Now with the decision of those two appeals, one by way of withdrawal and another on merits, which was the reason of recall of the order, we find that no purpose would now be served in upholding the recall order. It would be therefore needless to go into the merits of the case whether or not recall was justified. Nevertheless it must be observed that reasoning given by the learned Single Judge is that the order of the President, ITAT, dated 20.08.2008 passed under Rule 4 of the Income Tax Appellate Tribunal Rules, 1963 sought to consolidate those two appeals, namely, the appeals filed by respondent assessee and Mayur M. Thakkar against common order of CIT (Appeals) dated 30.04.2003 and was not to consolidate those appeals with the appeal filed by the respondent assessee against the order of the CIT (Appeal) Jaipur dated 14.02.2004. Therefore, the actual premise on which the ITAT, Jaipur, recalled its earlier order dated 29.03.2006 was not available. The order dated 29.03.2006 has already been challenged by the Revenue in separate Appeals under Section 260A of the Act, before the court. Therefore, the actual premise on which the ITAT, Jaipur, recalled its earlier order dated 29.03.2006 was not available. The order dated 29.03.2006 has already been challenged by the Revenue in separate Appeals under Section 260A of the Act, before the court. We, therefore, only leave the matter at that by observing that it would be open to the Revenue to demonstrate before this court in its aforesaid appeal by raising all aforesaid facts whether any undue benefit has been derived by the assessee thereby, which has resulted in escapement of tax or otherwise. 15. With that liberty, present special appeal is disposed of.Appeal disposed of as above. *******