( 1 ) THIS is a petition filed under Articles 226 and 227 of the Constitution of India against the order dated 05/09/2001 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench c, Ahmedabad (Tribunal) in Misc. Application No. 31/rajkot/2000 under Section 254 (2) of the Income Tax Act,1961 (hereinafter referred to as the Act ). The petitioner is the Assistant Commissioner of Income Tax, Circle I, Rajkot having jurisdiction to assess the respondent assessee i. e. Saurashtra Kutch Stock Exchange Limited.

( 2 ) THE assessee returned Nil income on 29. 10. 1996 for assessment year 1996-97 seeking exemption under section 11 of the Act. Before the assessment was finalized on 3/2/1999 under section 143 (3) of the Act, the assessee was granted certificate of registration dated 20/02/1998 under section 12a of the Act by the Commissioner of Income Tax, Rajkot. The assessing officer vide assessment order dated 03/02/1999 rejected the claim for exemption under section 11 of the Act.

( 3 ) THE assessee went in appeal before the Commissioner of Income Tax (Appeal) I, Rajkot. However, on 28/02/2000 the C. I. T. (Appeal) confirmed the order of the assessing officer denying exemption under section 11 of the Act. The assessee preferred Second Appeal before the Income Tax Appellate Tribunal, Rajkot Bench, Rajkot which came to be registered as ITA No. 69/rajkot/2000. The Tribunal for the reasons stated in its order dated 27/10/2000 confirmed the orders of the assessing officer and C. I. T. (Appeal ).

( 4 ) THE assessee filed a Misc. Application dated 13/11/2000 seeking rectification of the aforesaid order dated 27. 10. 2000. In the said Misc. Application various mistakes of facts and law were pointed out. One of the principal contention raised in the Misc. Application was that the applicant assessee had relied upon a decision of this Court in the case of Hiralal Bhagwati Vs. C. I. T. , copy whereof had been placed at page nos. 268 to 278 in Paper Book No. 3 submitted before the Tribunal during the course of hearing and the said decision of jurisdictional High Court, though binding on the Tribunal, had not been considered or even referred to by the Tribunal. Another factual error raised in the Misc. Application pertained to the aspect of prohibition as to declaration of dividend provided by the articles of the assessee/stock exchange, despite which according to the assessee, the Tribunal had held that it was permissible to the assessee to distribute whole or part of its income by way of dividend amongst member shareholders. The assessee therefore prayed that the order dated 27/10/2000 required rectification and for this purpose said order may be recalled and the Tribunal restore the appeal for fresh disposal after hearing both the sides.

( 5 ) IT is pertinent to note that by the time aforesaid Misc. Application dated 13/11/2000 was filed, the Members constituting Rajkot Bench of the Tribunal stood transferred and hence at Rajkot no Bench of the Tribunal was functioning. Misc. Application was fixed on 20/12/2000 at Rajkot when the assessee sought adjournment. Next hearing was fixed on 28/02/2001 at Ahmedabad when the petitioner sought adjournment. This fixation at Ahmedabad took place because in absence of Bench being available at Rajkot the Vice President of the Tribunal had transferred the said Misc. Application from Rajkot Bench to Ahmedabad Bench. Thereafter, the said Misc. Application was posted for hearing on 30/03/2001 but due to non availability of the Bench at Ahmedabad the matter stood adjourned. Ultimately the said Misc. Application was posted for hearing on 25/05/2001 and the same was fully heard by the Bench to which the said Misc. Application was assigned.

( 6 ) ON 05/09/2001 the Tribunal passed the order on the Misc. Application holding that as there was a mistake apparent from the record the order of the Tribunal dated 27. 10. 2000 was recalled and the Registry was directed to refix the case for fresh disposal. It