Judgment:
ORDER
P.M. Jagtap, A.M.
This miscellaneous application is filed by the revenue in respect of the Tribunal's order dated 20-9-1999, passed in M.A. No. 43/Jp/98, whereby the order passed in IT(SS)A. No. 11(Jp)/97 on 29-6-1988, was recalled considering the apparent mistake therein in not deciding the ground No. 34, raised by the assessee relating to the issue which was going to the root of the matter. The revenue's plea is that there is no provision in law which enables the Tribunal to revise its earlier order and as such there is a mistake in the Tribunal's order in recalling its own order which amounts to revision.
2. We have heard both the parties and also perused the material on record. It is observed that the Tribunal decided the appeal preferred by the assessee against the order of assessing officer for the block period 1986-87 to 1996-97 vide its order dated 29-6-1998, in IT(SS)A. No. 11(Jp)/97. The assessee moved a miscellaneous application pointing out, inter alia, that ground Nos. 31 to 34 of his appeal remained undecided by the Tribunal. The Tribunal found substance in the miscellaneous application filed by the assessee and considering that the issue raised in ground No. 34 relating to the validity of assessing officer's impugned order had remained inadvertently undecided, proceeded to recall its appellate order dated 29-6-1998, passed in IT(SS)A. No. 11(Jp)/97. Accordingly the miscellaneous application filed by the assessee was allowed by the Tribunal vide its order dated 20-9-1999, in M.A. No. 43/(Jp)/98. Against this order, the department preferred an appeal before the Hon'ble Rajasthan High Court which came up for hearing before the Divisional Bench of the Hon'ble High Court in Income Tax Appeal No. 9 of 2000 (reported as CIT v. Ramesh Chand Modi (2000) 163 CTR (Raj) 424). It was pleaded before the Hon'ble High Court on behalf of the revenue that the Tribunal has no power to review and the recalling of the earlier order amounts to review of its earlier order which was beyond the scope of the authority of the Tribunal. Their Lordships of Hon'ble Rajasthan High Court, however, found this plea raised by the revenue to be not well founded and proceeded to observe that once a mistake on the face of record is established, what order should follow to correct that mistake shall always depend on the facts and circumstances requiring to rectify such mistake. Their Lordships also observed that if the mistake is one which requires determination of some undecided issue because it has not been decided though raised, the procedure that would follow the discovery of such mistake is to recall the order and decide the case afresh or to decide that issue after affording an opportunity of hearing to parties concerned and pass a fresh order in the light of finding on such issue. The Hon'ble High Court also observed that the recalling of an order for correcting an apparent mistake in procedural aspect cannot be equated with review and held that where a Tribunal fails to notice a question raised before it inadvertently under any misapprehension, correcting such error by recalling the order for deciding such question which goes to the root of the matter appropriately, falls in such category of procedural mistake, which the Tribunal must correct ex debito justitiae, even in the absence of any express power.
3. It is thus clear that the issue raised by the revenue in this miscellaneous application has already been considered and decided by the Hon'ble Rajasthan High Court, while disposing of the appeal preferred by the revenue against the order of the Tribunal dated 20-9-1999, passed in M.A. No. 43/(Jp)/98 and this present miscellaneous application has been filed by the revenue, seeking rectification of the very same order of the Tribunal dated 20-9-1999, and that too on the very same ground. In the case of CIT v. Amritlal Bhogilal & Co. : [1958]34ITR130(SC) , the Hon'ble Supreme Court has held that as a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone with subsists and is operative and capable of enforcement. Obvious as it is, the original order, in respect of the items considered in the appellate order, gets merged in the appellate order and the same cannot be the subject-matter of considering or adjudication.
4. In the present case, the order of the Tribunal in M.A. No. 43/(Jp)/98 dated 20-9-1999, having been affirmed by the Hon'ble Rajasthan High Court would be deemed to have merged in the order of the Hon'ble High Court and this being the position, we are of the view that the said order of the Tribunal passed on 20-9-1999 in M.A. No. 43/(Jp)/98 is not available for rectification and in the circumstances, it is the appellate order of the Honble High Court which alone can be subjected to rectification, if at all permissible, in accordance with law. As such, the original order of the Tribunal passed in M.A. No. 43/(Jp)/98, dated 20-9-1999, not being available for rectification due to the same having merged in the appellate order of the Hon'ble High Court, we find the miscellaneous application of revenue seeking rectification of the said order of the Tribunal, dated 20-9-1999 to be not tenable in law. The same is, therefore, rejected at the threshold.
5. In the result, this miscellaneous application, filed by the revenue, is rejected.