C.D.S. Prakasa Rao vs The Commissioner of Wealth Tax

L. Narasimha Reddy, J.—An important question of law arises for consideration in this reference made to this Court u/s 27(3) of the Wealth Tax Act (for short ''the Act'') and an appeal filed u/s 27-A thereof. It is as to, whether the Income Tax Appellate Tribunal has the power to recall and review its own order, which assumed finality and rehear the appeal.

The facts, in brief, are as under:

The appellant is an Advertising Agency. As part of its business, it erected as many as 1665 hoardings at various places. In the returns that were submitted by the appellant, for the financial year 1991 under the Act, the Wealth Tax Officer (WTO) treated each hoarding as an asset by itself, and estimated their value @ Rs. 2,500/-, each. Accordingly, the value thereof was fixed at Rs. 41,62,500/-. The appellant filed an appeal before the Commissioner of Wealth Tax (CWT). Through an order, dated 04.08.1994, the Commissioner agreed with the principle adopted by the WTO, i.e. to treat a hoarding as an asset, but reduced the value to Rs. 1,500/-, each. While the appellant filed W.T.A. No. 148 of 1994 before the Income Tax Appellate Tribunal, Hyderabad, dissatisfied with the order passed by the CWT, the Department filed W.T.A. No. 203 of 1994, feeling aggrieved by the reduction of value.

Though both the said appeals have arisen out of the order, dated 04.08.1994, for some reason or the other, the Tribunal has taken up W.T.A. No. 148 of 1994 i.e. the assessee''s appeal, alone for hearing and allowed it, through order, dated 04.06.1996. The judgments of the Supreme Court in Commissioner of Wealth-tax, Madras Vs. Smt. R.A. Muthukrishna Ammal and Martinammal Machado, and F.S. Gandhi v. Commissioner of Wealth Tax 184 ITR 35 were relied upon. The Department filed R.A. No. 525 of 1996 to get the matter referred to this Court. That, however, was dismissed, on 26.03.1997. No further steps were taken in that behalf.

W.T.A. No. 203 of 1994 was taken up for hearing in the year 1998. Though that appeal alone was pending, W.T.A. No. 148 of 1994, was also taken up for hearing ignoring the fact that it was allowed way back on 04.06.1996. The record does not disclose as to whether the Tribunal passed any specific order recalling its order, dated 04.08.1994 in W.T.A. No. 148 of 1994. Through its common order, dated 27.01.1998, the Tribunal dismissed, W.T.A. Nos. 148 and 203 of 1994.

The appellant filed an application, being M.P. No. 26, of 1998 in W.T.A. No. 203 of 1994, with a prayer to rectify the order, dated 27.01.1998. It was pleaded that once W.T.A. No. 148 of 1994 was allowed earlier, there was no occasion for the Tribunal to deal with the matter and that W.T.A. No. 203 of 1994 has virtually become infructuous. The said application was dismissed by the Tribunal on 14.06.2000. W.T.A. No. 1 of 2001 is filed against the said order.

Independently the appellant filed R.A. No. 50/Hyderabad/1998 in W.T.A. No. 203 of 1994 with a prayer to refer certain questions framed by it to this Court for opinion. That application was dismissed on 14.06.2000 itself. W.T.C. No. 17 of 2000 arises out of it.

Sri K. Raji Reddy, learned counsel for the appellant, submits that once W.T.A. No. 148 of 1994 was allowed, following the judgment of the Supreme Court in Commissioner of Wealth Tax''s case (supra) and F.S. Gandhi''s case (supra), the assessment pertaining to the return filed for the year 1991 assumed finality and W.T.A. No. 203 of 1994 filed by the Department became infructuous. He contends that the Tribunal is not conferred with any power to review its own order, and as a matter of fact, such a review did not take place, vis-�-vis the order, dated 04.08.1994 in W.T.A. No. 148 of 1994. He submits that whatever may have been the circumstances under which the Tribunal passed a common order, in both the appeals, on 27.01.1998, it ought to have rectified the mistake at least when it was brought to its notice. He further submits that important questions of law raised by the appellant ought to have been referred to this Court.

Sri J.V. Prasad, learned Standing Counsel for the Department, on the other hand, submits that the reference and appeal are procedurally unsound, in as much as common order, dated 27.01.1998, was passed in two appeals, but the applications for rectification and reference were filed only in one appeal, namely W.T.A. No. 203 of 1994. It is further submitted that in case the appellant was of the view that hearing of W.T.A. No. 148 of 1994 in the year 1998 along with W.T.A. No. 203 of 1994 was untenable, it ought to have raised objection then and there and once the arguments are advanced, and common order was passed in both the appeals, it is not open to the appellant to raise these objections.

With reference to the return filed by the appellant for the year 1991, the WTO took the view for the first time that the advertisement hoardings, made up of wood and iron angles and tin sheets, are treated as assets and he proceeded to value each of them at Rs. 2,500/-. The Appellate Authority confirmed the concept, but reduced the value of each hoarding. Two appeals came to be filed against the order of the Appellate Authority. W.T.A. No. 148 of 1994 was filed by the appellant feeling aggrieved by the very act of treating hoardings as assets and the Department filed W.T.A. No. 203 of 1994 feeling aggrieved by the reduction of value of each hoarding.

It is a common practice that whenever two appeals or revisions are filed against an order, they are heard together, so that, the possibility of conflicting orders being passed, is avoided. The appellant asserts that in the year 1996, W.T.A. No. 148 of 1994 was taken up and even though it brought to the notice of the Tribunal that a separate appeal preferred by the Department against the same order i.e. W.T.A. No. 203 of 1994 is pending, no attention was paid to that aspect. The result is that W.T.A. No. 148 of 1994 alone was taken up for hearing and following the judgments of the Supreme Court in Commissioner of Wealth Tax''s case (supra) and F.S. Gandhi''s case (supra), the appeal was allowed, and as a result, the order passed by the WTO was set aside.

The record discloses that the Department felt aggrieved by the order of the Tribunal in W.T.A. No. 148 of 1994 and, in fact, filed R.A. No. 525 of 1996 u/s 27 of the Act with a prayer to refer the questions to this Court. The said application was dismissed on 26.03.1997 and the matter assumed finality.

Whenever two or more appeals or other proceedings are instituted against an order passed by a lower authority, failure to file an appeal where it was necessary, would bring about finality, to that extent. Similarly even where several appeals are filed but were not disposed of together, the result in an appeal disposed of earlier would follow in the other appeal or appeals arising out of the same order of the lower authority. In the instant case, the Department, no doubt, preferred an appeal before the Tribunal against the order of the Appellate Commissioner. However, since the Tribunal passed a reasoned order in an appeal preferred by the appellant and it has become final, W.T.A. No. 203 of 1994 became infructuous, for all practical purposes. Even otherwise, the same result would follow in both the appeals. Curiously enough, the Tribunal took up not only W.T.A. No. 203 of 1994 but also W.T.A. No. 148 of 1994 two years after it was decided, and passed an order, dated 27.01.1998 dismissing both the appeals.

Assuming that the Tribunal was not aware of the disposal of W.T.A. No. 148 of 1994, when W.T.A. No. 203 of 1994 was taken up for hearing in 1996, at least when a miscellaneous petition was filed by the appellant bringing those aspects to its notice, necessary corrective steps ought to have been taken. Instead, the application was rejected. As correctly advised, the appellant preferred an appeal against the said order. Apart from that, the appellant has also taken steps to get the questions referred to this Court u/s 27 of the Act.

The exercise undertaken by the Tribunal in passing the order, dated 27.01.1998, dismissing the appeals amounts to reviewing the order, dated 04.06.1996 in W.T.A. No. 148 of 1994 though not expressly. Without such review, it would not have been possible for it to hear an already allowed appeal. It is too well settled that an adjudicatory authority is not conferred with inherent powers of review. Unlike various other ancillary powers, such as to pass the interlocutory orders or to correct mistakes, the power to review must be specifically conferred by the statute, and it cannot be inferred. Reference in this context may be made to the judgment of this Court in Commissioner of Income Tax v. H.M.T. Limited 1994 ITR 125 (Kar.).

It is important to note that when the factum of the disposal of W.T.A. No. 148 of 1994 was brought to notice by filing M.P. No. 26 of 1998, the Tribunal made the following observation:

"In this case both the connected appeals (WTA Nos. 148 and 203/Hyd/94) were heard together subsequently and in the interest of justice they were heard on merits and the Tribunal dismissed both the appeals thereby reversing the earlier order of the Tribunal Dt. 4.6.96 passed in W.T.A. No. 148/Hyd/94. In view of the subsequent common order dated 27.01.1998 the earlier order passed in W.T.A. No. 148/Hyd/94 stands reversed. By filing this sort of an application, the assessee wants to change the character of the subsequent order itself which is not permissible u/s 35 of the W.T. Act. If there is really any grievance for the assessee this is not the forum to agitate the same. Hence, we are of the view that this is not a case in which rectification is to be done u/s 35 of the W.T. Act. The petition filed by the assessee therefore is devoid of any merit and it is liable to be dismissed."

From the above, it is clear that the Tribunal was very much aware of the earlier order, dated 04.06.1996, passed in W.T.A. No. 148 of 1994. However, it proceeded to take a view that the said order "stands reversed", in view of the subsequent common order dated 27.01.1998. The approach of the Tribunal was totally fallacious. The question of a disposed of appeal being taken up for hearing once again, much less reversing the order passed therein, does not arise. It is only the prerogative of a superior forum or Tribunal to reverse the order passed by an inferior Tribunal or forum. The maximum which an adjudicatory forum can do about the order passed by it, is to review it, that too, if the statute confers the power in this behalf. The question of the same forum reversing its own order, does not arise.

Therefore, W.T.A. No. 1 of 2001 is allowed and the order under appeal is set aside. M.P. No. 26 of 1998 shall stand allowed and as a result, the common order, dated 27.01.1998 in so far as it relates to W.T.A. No. 148/Hyd/94 shall stand set aside. The order, dated 04.06.1996 passed in W.T.A. No. 148/Hyd/94 shall hold good, and W.T.A. No. 203 of 1994, shall be treated as infructuous.

In view of the nature of disposal given to W.T.A. No. 1 of 2001, there does not exist any necessity to answer the question referred to in W.T.C. No. 17 of 2000.

Challa Kodanda Ram, J.

I was unable to agree with the disposal and reasoning given by my learned brother Justice L. Narasimha Reddy. The reasons for my disagreement are set out hereunder along with my opinion of the case:

The questions framed in W.T.C and W.T.A are identical and similar. W.T.C., has arisen on account of the final order of the Tribunal, whereas W.T.A has arisen on account of the order of the Tribunal in a Miscellaneous Petition, whereby the Tribunal has refused to rectify its order dated 27.01.1998. Considering the scope of W.T.C u/s 27 and W.T.A u/s 27A, two different provisions of the Wealth Tax Act (for short, "the Act"), the questions of law cannot be the same especially W.T.C arising out of the final order of the Tribunal and W.T.A arising out of a Miscellaneous Application in an Appeal before the Tribunal. Further, questions framed in W.T.A do not reflect the questions which fall for consideration in the matter from the orders of the Tribunal. In that view of the matter, unless the questions are reframed in the W.T.A, W.T.A cannot be disposed of.

The Revenue filed W.T.C. No. 17 of 2000 u/s 27(2) of the Act bearing R.A. No. 50 of 1998 seeking reference of three questions of law to the High Court. The said application was dismissed by the Tribunal and on such dismissal, the Revenue filed this W.T.C u/s 27(2) of the Act, seeking a direction to the Tribunal to call for the three questions of law said to be arising out of the order of the Tribunal. The three questions of law which were raised are:

a) "Whether on the facts and in the circumstances of the case, the Tribunal have inherent powers to recall the appeal heard and disposed-off by its order dated 4.6.1996 in W.T.A. No. 148/Hyd/94?

b) Whether in the facts and in the circumstances of the case, the Tribunal have inherent powers to review its earlier judgment dated 4.6.1996 in W.T.A. No. 148/Hyd/94 and reverse its stand subsequently by reopening and clubbing it with the Departmental Appeal in W.T.A. No. 203/Hyd/94 of the same appellant and for the same year?

c) Whether on the facts and circumstances of the case, the Tribunal is right in holding that the hoardings are assets as per Section 2(e) of Wealth Tax Act in W.T.A. No. 203/Hyd/94 against the judgment rendered in W.T.A. No. 148/Hyd/94 dated 4.6.1996 of the same Bench wherein it was held as not ''asset'' for the purpose of Wealth Tax Act applying the ratio of Supreme Court in the case of Commissioner of Wealth-tax, Madras Vs. Smt. R.A. Muthukrishna Ammal and Martinammal Machado, and the Allahabad High Court in the case of F.S. Gandhi ( 184 ITR 35)?

W.T.A No. 1 of 2001 is filed raising three questions of law said to be arising from the order of the Tribunal dated 14.06.2000 passed in M.P. No. 26/Vizag/98 in W.T.A. No. 203/Hyd/94. The questions of law, which have been raised in this appeal, are identical to those questions of law raised in W.T.C. No. 17 of 2000. As the questions of law raised in W.T.C. No. 17 of 2000 and W.T.A. No. 1 of 2001 are identical and are connected with the orders of the Tribunal, at the request of both the parties, both the matters are clubbed together for the purpose of disposal by a common order.

At the outset, how some times, I may mention the above two cases throw some light on the way, the Tribunals are functioning and the lack of coordination and non application of mind between the parties both Revenue as well as the assessee. The situation of this nature could have been avoided with a little attention to detail and applying judicious mind to the issues before the Tribunal which unfortunately has not been exhibited by the Members manning the Tribunal.

First I may take up W.T.C. No. 17 of 2000 as the same is against the orders of the Tribunal passed in W.T.A. No. 203/Hyd/1994. The brief facts of the case are that the assessee, who is engaged in the business of outdoor advertisements, has erected large number of hoardings. Each hoarding was costing about Rs. 2,000/- to Rs. 2,500/-. Wealth Tax Officer by aggregating the cost of total number of hoardings sought to treat the same as wealth of the assessee and levied wealth tax under the Wealth Tax Act. Aggrieved by the said assessment orders, the assessee preferred the appeal and CIT Appeals while confirming the view of the Assessment Officer that the hoardings are assets liable for wealth tax had fixed the value of each hoarding to Rs. 1,500/- each and the total wealth for the purpose of tax was reduced to Rs. 24,97,500/- as against Assessing Officer''s determination of Rs. 41,62,500/-. Both the assessees as well as the revenue filed appeals before the Income Tax Appellate Tribunal. The assessees'' appeal was numbered as W.T.A. No. 148/Hyd/94 and Revenue''s appeal was numbered as W.T.A. No. 203/Hyd/94. So far as the assessees'' appeal is concerned, the main contention which came to be raised by the assessee is that the hoardings are tools in the business and they are not assets liable for wealth tax. So far as the revenue appeal is concerned, the reduction of value of each hoarding to Rs. 1,500/- was in issue. Both the appeals were initially clubbed together for disposal. For some reason or the other, the W.T.A. No. 148/Hyd/94 filed by the assessee came to be disposed of by the Tribunal on 4.6.1996 and the Tribunal had accepted the contention of the assessee that the hoardings are not the assets liable for wealth tax. The Wealth Tax Officer had filed R.A. No. 525/Hyd/96 before the Tribunal u/s 27(1) of the Act, seeking reference of three questions of law set out in para No. 3 for the opinion of the High Court.

The Tribunal vide its orders dated 26.3.1997, had rejected the reference application holding that the Tribunal while passing orders dated 4.6.1996 had held that the hoardings are not assets falling within the scope of Section 2(e) of the Act. It was also further held considering the nature of the business in which the assessee is involved and following the judgment of the Supreme Court in the cases of Commissioner of Wealth-tax, Madras Vs. Smt. R.A. Muthukrishna Ammal and Martinammal Machado, and F.S. Gandhi ( 184 ITR 35 ), the decision had been arrived and as such no questions of law need to be referred. Revenue did not approach the High Court invoking its jurisdiction u/s 27(3) of the Act, ''and as such the decision rendered by the Tribunal on 4.6.1996 in W.T.A. No. 148 of 1996 became final. The net result of the decision in W.T.A. No. 148 of 1996 is that the hoardings are not assets assessable under the Act.

Subsequently, W.T.A. No. 203/Hyd/94 came to be listed before another Bench of the Tribunal in the year 1998 and the Tribunal passed its final order on 27.1.1998 in W.T.A. No. 203/Hyd/94. However, in the cause title of the order in W.T.A. No. 148/Hyd/94 was also shown along with W.T.A. No. 203/Hyd/94, and further the Tribunal in the very opening ''words'' had stated that these "cross appeals one by the assessee and the other by the Revenue are directed against the order of the C.W.T(a) dated 4.8.1994 for the assessment year 1990-91". A perusal of the order of the Tribunal would go to show that the Tribunal does not seem to have been appraised of the fact that W.T.A. No. 148/Hyd/94 came to be disposed of and the same is no longer pending on the file of the Tribunal for consideration. The Tribunal proceeded to decide the assessee''s appeal i.e., W.T.A. No. 148/Hyd/94 which was non existing as on the date of its consideration and had held that the hoardings as assets for the purpose of wealth tax. The Revenue''s appeal which was only concerned with regard to valuation was rejected confirming the orders of the CIT (Appeals) reducing the valuation of each hoarding as Rs. 1,500/-. In the above facts situation, the assessee had sought reference of the questions of law said to be arising from the orders of the Tribunal as set out in para No. 3.

Learned counsel for the assessee Sri K. Raji Reddy would submit that the Tribunal in disregard of the earlier orders of the Tribunal rendered in W.T.A. No. 148/Hyd/94 had chosen to give diametrically contra decision in deciding the appeal and in that way had virtually reviewed the orders of the Tribunal passed in W.T.A. No. 148/Hyd/94. He also would submit that the Tribunal is not conferred with the power of review and in fact order rendered earlier by a coordinate Bench is binding on the bench deciding the appeal W.T.A. No. 203/Hyd/94. He would further contend that as a matter of fact, there was no W.T.A. No. 148/Hyd/94 before the Bench that could be decided. He would command this Court to set aside the order of the tribunal and urge the questions of law to be answered in favour of the assessee.

On the other hand Sri J.V. Prasad, learned counsel appearing on behalf of the Revenue would contend that if the contention of the learned counsel for the assessee to be accepted there would be no question of law that would be arising from the orders of the Tribunal for consideration by this Court, inasmuch as the order of the Tribunal would be confined to only the Order in W.T.A No. 203/Hyd/94, dated 27.01.1998. He would also submit that nothing prevented the assessee to have brought to the notice of the Tribunal about the earlier order dated 04.06.1996 in W.T.A. No. 148/Hyd/94 to the notice of the Tribunal. He would also submit that the reference application is filed only in respect of W.T.A. No. 203/Hyd/94 and no reference application has been filed with respect to the order in W.T.A. No. 148/Hyd/94. Even if it is common order in both the appeals two reference applications ought to have been filed.

Now the question for consideration is whether these questions of law are required to be called for from the Tribunal?

In the light of the above factual matrix, for considering and rendering the opinion of this Court, it may be useful to refer the law relating to the scope of Section 27 of the Act and the jurisdiction of this Court while considering the matters falling u/s 27 of the Act. Section 27 of the Act is in pari materia with Section 256 of the Income Tax Act. While dealing with the case u/s 256 of the Income Tax Act, the Supreme Court in a land mark case of Commissioner of Income Tax, Bombay Vs. Scindia Steam Navigation Co. Ltd., , had set out the four circumstances, under which a question of law said to be arising from the orders of the Tribunal. In the words of the Supreme Court, the four circumstances are:

(1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order.

(2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order.

(3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order.

(4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it.

Before we consider, whether the reference is required to be called for with regard to question No. 3, the developments which have taken place subsequent to orders dated 27.01.1998 of the Tribunal in W.T.A. No. 203/Hyd/94, are required to be considered which in fact is clubbed as W.T.A. No. 1 of 2001.

In the M.P. No. 26/Vizag/98 in W.T.A. No. 203/Hyd/94, petitioner brought to the notice of the Tribunal that W.T.A. No. 148/Hyd/94 came to be disposed of by the Tribunal by its Order dated 04.06.1996 and in which the hoardings are held to be tools of the business and not liable to be assessed as assets under the Wealth Tax Act. Sri K. Raji Reddy, learned counsel for the assessee would submit that the Tribunal gravely erred in not considering the scope of the application filed by the assessee and the Tribunal failed to exercise the powers vested in it u/s 35 of the Act. He would submit that the Tribunal ought to have rectified the error committed and recalled its order passed so far as the same is relating to W.T.A. No. 148/Hyd/94 is concerned, as Tribunal had erred in disposing of a non-existing appeal. On the other hand Sri J.V. Prasad, learned counsel for the Revenue by placing reliance on the judgment of this Court in Commissioner of Income Tax and Another Vs. Income Tax Appellate Tribunal and Another, . would submit that the Tribunal has no power to review its orders and the view of the Tribunal that for rectification of the orders passed by the Tribunal, the forum lacks elsewhere cannot be found fault with and he would support the order of the Tribunal and pressed for dismissal of the appeal.

The Tribunal rejected the rectification application stating that "In view of subsequent common order dated 27.01.1998 the earlier order passed in WTA No. 148/Hyd/94 stands reversed. By filing this sort of an application, the assessee wants to change the character of the subsequent order itself which is not permissible u/s 35 of the W.T.A Act. If there is really any grievance for the assessee this is not the forum to agitate the same. Hence, we are of the view that this is not a case in which rectification is to be done u/s 35 of the W.T. Act. The petition filed by the assessee therefore is devoid of any merit and it is liable to be dismissed. In the result, the Miscellaneous Petition is dismissed."

A perusal of the order in M.P. No. 26/Vizag/98, would clearly reveal that in the application filed before the Tribunal seeking rectification, it was clearly brought to the notice of the Tribunal that the W.T.A. No. 148/Hyd/94 came to be disposed of on 4.6.1996, and the said order had become final and binding on the department.. In other words, the order of the Tribunal dated 27.1.1998, so far as the determination of the issues which were subject matter of the appeal in W.T.A. No. 148/Hyd/94, was clearly under a mistaken impression to say the least and erroneous. There was no dispute that W.T.A. No. 148/Hyd/94 came to be disposed of on 4.6.1996 on merits holding that the hoardings as part of the tools of the assessee''s business and they were not assets liable to be assessed under the Wealth Tax Act.

In such circumstances, question is whether the Tribunal was the duty bound to have rectified by modifying the order dated 27.1.1998 confining the same only to the issue in relation to W.T.A. No. 203/Hyd/94.

In the facts and circumstances of the case, the questions which are required to be considered by this Court, in my opinion, are not the questions which have been raised as set out in para No. 3 as they are not appropriate questions. In that view of the matter, it deem it necessary to reframe the questions in exercising of powers u/s 27A of the Act on the material available on record. The appropriate questions that are required to be framed are:

i) Whether in the facts and circumstances of the case the Tribunal has power u/s 35 of the Act to rectify the order dated 27.01.1998 and eschew the discussion relating to W.T.A. No. 148/Hyd/94?

ii) Whether in the circumstances of the case, the Tribunal was right in refusing to rectify the order dated 27.01.1998 and confining the same to only W.T.A. No. 203/Hyd/94?

iii) Whether in the facts and circumstances of the case, the Tribunal was bound to eschew the order dated 27.01.1998 and confine the same to W.T.A. No. 203/Hyd/94 by eschewing the discussion and decision relating to whether the hoardings were assets for the purpose of the Wealth Tax Act?

There is a specific power conferred u/s 35 of the Act which reads as under:

"Section 35 Rectification of mistakes:

Sub Sections (a) to (d)....... are not relevant for the purpose of this Case.

Sub Section (e) the Appellate Tribunal may amend any order passed by it u/s 24".

Sub Section (3) of Section 35 of the Act reads as under:

(3) Subject to the other provisions of this Section, the authority concerned -

(a) may make an amendment under sub-section (1) or Sub-section (2) of its own motion; and

(b) shall make such amendment for rectifying any such mistake which has been brought to its notice by the assessee, and where the authority concerned is the (Valuation Officer or the Deputy Commissioner (Appeals) or the Commissioner (Appeals) or the Appellate Tribunal, by the (Assessing Officer) also.

Sub Section (8) of Section 35 of the Act reads:

"(8) Where any matter has been considered and decided in a proceeding by way of an appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any other law for the time being in force, amend the order under this section in relating to any matter other than the matter which has been so considered and decided."

A perusal of Section 35(1)(e) of the Act would leave no manner of doubt subject to the mistake being apparent from the record, there is no other fetter on the Tribunal to pass rectification order. This is also clear from Sub-section (8) of Section 35 of the Act.

It may be useful to notice the judgment of the Supreme Court reported in Sunitadevi Singhania Hospital Trust and Another Vs. Union of India (UOI) and Another, , with regard to the power of the Tribunals to recall or review its orders. It is also held in the judgment of Supreme Court reported in Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd., , wherein it was held that the non-consideration of a binding decision is a mistake apparent from the record. In the words of the Supreme Court, it is as follows:

"The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified u/s 254(2)".

Though the Income Tax Appellate Tribunal has not been vested with the specific powers to review, a limited power of rectification of its orders in a given circumstances is vested with, the mistake of the nature which has been occurred in the present case, wherein for some reason or the other, Tribunal had failed to notice that an appeal which has already been decided and proceeds to pass an order in a non existing appeal is clearly a mistake borne out from the record and would squarely fall within the scope of powers conferred on the Tribunal u/s 35(1)(e) of the Act. In that view of the matter, refusal on the part of the Tribunal to eschew that part of the order relating to determination of the issue whether hoardings are assets liable to be taxed under the Act is unsustainable and liable to be interfered with.

In that view of the matter, the questions of law, which have been set out in para No. 17 in the present appeal are required to be considered by this Court while exercising the powers conferred u/s 27A of the Act. Section 27A of the Act categorically entitles on an aggrieved party to file an appeal even with respect to the orders passed u/s 35(1)(e) of the Act. In that context, the judgment of this Court reported in C.I.T. v. I.T.A.T (supra) referred to by the learned counsel for the Department has no application, for the reason that the said judgment was dealing with whether a reference application shall be maintainable against an order passed in a Miscellaneous Petition. A reference application was held to be not maintainable. Whereas in the present case, Section 27A of the Act specifically confers power on this court to entertain appeals even against an order passed u/s 35(1)(e) of the Act.

In the facts situation stated above and in view of the specific powers conferred and in the light of the judgment and the ratio laid down by the Supreme Court, it is the bounden duty of the Tribunal to correct the apparent mistake by recalling the order dated 27.01.1998 and confining the same only to W.T.A. No. 203/Hyd/94 as the Tribunal had failed to exercise its jurisdiction conferred on it, the appeal deserves to be allowed answering the questions of law set out in para No. 17 in favour of the assessee and against the revenue.

Applying the law laid down in the case of Scindia Steam Navigation Co. Ltd. (supra), question Nos. 1 and 2 in W.T.C. No. 17 of 2000, do not arise from the order dated 27.1.1998 of the Tribunal in W.T.A. No. 203/Hyd/94 and thus need not direct to be referred. So far as the question No. 3 is concerned, in normal circumstances, the same is required to be called for answering by this Court. However, in the facts of the present case and considering the decision arrived by me in W.T.A. No. 1 of 2001, question No. 3 need not be called for the opinion of this Court.

In the result, W.T.A. No. 1 of 2001 is allowed answering the questions of law set out in para No. 17 i.e., question No. 1 in the affirmative, question No. 2 in the negative and the question No. 3 in affirmative.