Commissioner of Income Tax vs Prahlad Rai Todi

P.G. Agarwal, J.—Heard Mr. D. Sur, the learned counsel for the revenue, and Mr. R.K. Joshi, the learned counsel for the assessee. In respect of the assessment years 1953-54 and 1954-55, appeals were preferred by the revenue before the Tribunal, Gauhati Bench, Guwahati, being I.T.A. Nos. 537 and 538 (Gauhati) of 1990. These appeals were heard and vide order dated 24-9-1993, both the appeals were allowed. There-after, the assessee filed a miscellaneous application challenging the order passed on 24-9-1993, and vide order dated 20-12-1994, the learned Tribunal passed the following order:

In our opinion, the orders of the Tribunal passed on September 24, 1993, should be recalled for reconsideration. We, therefore, recall this order and direct the registry to post the case for fresh hearing.

The revenue has filed the present application stating, inter alia, that the order passed by the Tribunal on 24-9-1993, was a final order and the said Tribunal had no power or jurisdiction to recall its own order for fresh disposal. An application was made by the revenue before the Tribunal for referring the following question:

Whether, on the facts and in the circumstances of the case, the Tribunal has erred in law and in facts to recall its final order with a view to rectify the same u/s 254(2)?

It is submitted by the learned counsel that u/s 254(2) of the income tax Act, 1961 (''the Act'') no such power has been vested with the Tribunal. An order was passed by the Tribunal, which is final, and it cannot be recalled for fresh consideration.

The learned counsel for the assessee has submitted that the assessee also had made an application before this Court for referring as many as four questions arising out of the order passed on 24-9-1993. However, in view of the order passed on 20-12-1994, the said application was rejected by this Court. The case has been in Smt. Kamala Devi Todi (Legal representative of late Lalchand Todi) Vs. Commissioner of Income Tax, . We have perused the above decision and find that the present question raised by the revenue was not the subject-matter of consideration in the above reference by the assessee and the Court was never asked to consider the question whether the Tribunal had power to recall its own order or whether such question is required to be referred. The order dated 24-9-1993, was recalled by the Tribunal and the application filed by the assessee was dismissed. But the correctness of the order of recall was not examined or considered. On hearing the submissions made by both sides, we find sufficient force in the submission of the petitioner that the matter needs to be examined by this Court and, as such, the application is allowed and the Tribunal is directed to refer the question as stated above u/s 256(2).