JUDGMENT

1. Admit.

2. At the request of the parties, we are taking up this matter for final disposal.

3. The following question is required to be answered by the court;

"Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal exceeded its jurisdiction by recalling the entire order on an application under Section 254(2) and in passing the impugned order ?"

4. No detailed facts are required to be examined in this case as a short question is required to be decided as indicated earlier. It transpires that the Income-tax Appellate Tribunal heard the appeal which was filed at the instance of the assessed and decided it by order dated November 13, 2000. It appears that the assessed submitted an application under Section 254(2) of the Income-tax Act, 1961, for rectification of a mistake and the Tribunal made an order dated September 12, 2001, allowing the application. The Tribunal held :

"We agree that the mistake rectifiable under Section 254(2) has occurred while passing the order dated November 30, 2000. Having come to this conclusion, we consider it reasonable and justified to recall the order passed by the Tribunal . . .".

5. Thereafter, the Tribunal reheard the entire appeal and passed a fresh order dated May 21, 2002.

6. The provisions of Section 254 are not similar to those of a review under the Civil Procedure Code. Section 254(2) reads as under :

"254. (2) The Appellate 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 assessed or the Assessing Officer."

7. Thus while making an order under this provision, there-must be some mistake in the original appellate order which is required to be corrected. The words used are "... shall make such amendment if the mistake is brought to its notice . . ."

8. Clearly, if there is a mistake then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the Income-tax Act. In this context, we may refer to a decision of this court in the case of Ms. Deeksha Suri v. ITAT [1998] 232 ITR 395. At page 415, the court pointed out as under ; "Could any relief have been allowed to the petitioners in exercise of jurisdiction conferred by Section 254(2) of the Act amending the order passed by the Tribunal with a view to rectify any mistake apparent from the record ? The language of the provisions is clear. The foundation for exercising the jurisdiction is 'with a view to rectify any mistake apparent on the record' and the object is achieved by 'amending any order passed by it'. The power so conferred does not contemplate a rehearing which would have the effect of re-writing an order affecting the merits of the case. Else there would be no distinction between a power to review and a power to rectify a mistake. What is not permitted to be done by the statute having deliberately omitted to confer review jurisdiction on the Tribunal, cannot be indirectly achieved by recourse to Section 254(2) of the Act."

9. Again in the case of Karan and Co. v. ITAT [2002] 253 ITR 131 (at page 136), a Division Bench of this court pointed out the scope and ambit of an application under Section 254(2) as follows :

"The scope and ambit of application of Section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under Se