The power to rectify an error under Section 254(2) of the Income Tax Act cannot be used as a means to review its own order in the absence of specific statutory authority to do so.

JUDGMENT :

B.S. Chauhan, C.J. - In W.P. (C) No. 3226 of 2008 the Commissioner of Income Tax has sought to challenge the order dated 20.7.2007 passed by the Income Tax Appellate Tribunal, Cuttack (hereinafter referred to as "the Tribunal") in Misc. Application No. 49-CTK/2004 by which the learned Tribunal was pleased to recall its earlier order dated 5.8.2004 and further directed re-hearing of the matter afresh.

2. Mr. Mohapatra, learned Standing Counsel for the Income Tax Department submitted that the Tribunal finally disposed of ITA No. 341/CTK/2003 by an order dated 5.8.2004 and the Assessee (opposite party herein) purportedly filed an application for rectification u/s 254(2) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") alleging that certain errors had crept in the original order passed by the Tribunal. This application came to be allowed by the Tribunal by the impugned order dated 20.7.2007 in Misc. Application No. 49-CTK/2004. Mr. Mohapatra, learned Standing Counsel for the Revenue strenuously submitted that the impugned order under Annexure - 2 dated 20.7.2007 was passed without any authority of law in as much as the impugned order would indicate that the Tribunal has effectively sought to review its earlier order dated 5.8.2004 while such power of review is not vested in the Tribunal. The learned Counsel submitted that if any party was aggrieved by the final judgment and order of the Tribunal dated 5.8.2004 Annex - 1, it was open to the said party to file a statutory appeal. The learned Counsel further submitted that the opposite party, in fact, has filed such a statutory appeal before this Court which is registered as ITA No. 219/2004.

3. The opposite party has appeared (being represented by her father Mr. Basant Kumar Misra) and submitted that the Tribunal had originally failed to take into account the fact that Section 115-BB of the Income Tax Act only came into force with effect from 1.4.2002 and while passing the original order in appeal dated 5.8.2004 this fact was omitted from its consideration. Therefore, he submitted that after this fact was brought to the notice of the Tribunal, the Tribunal in exercise of power u/s 254(2) of the Act corrected its own error and recalled its earlier judgment dated 5.8.2004 and directed re-hearing of the matter; and the Income Tax Department should have no objection to the said order.

4. We have considered the rival contentions of the learned Counsel for the parties and perused the record.

5. In Patel Chunibhai Dajibhai etc. Vs. Narayanrao Khanderao Jambekar and Another the Hon'ble Supreme Court had held that in absence of any power of review, the Tribunal could not have subsequently reconsidered its previous decision and the subsequent order re-opening the matter was illegal, ultra-vires and without jurisdiction.

6. In Harbhajan Singh Vs. Karam Singh and Others the Hon'ble Apex Court has held that in absence of any provision in the Act granting express power of review, it is manifest that review could not be made and the order in review was ultra-vires, illegal and without jurisdiction and the High Court has rightly quashed it by the grant of writ under Article 226 of the Constitution.

7. While deciding the said case, the Hon'ble Supreme Court placed reliance on a large number of judgments, particularly in Drew v. Mills 1891 (1)QB 450; Hession v. Johns 1914 (2) KB 421 in Re: St. Nazaire Company (1879) 12 Ch. D. 88; and Baijnath Ram Goyanka v. Nand Kumar Singh 14 Ind App 54 (PC), wherein it had categorically been held that the power of setting-aside an order, which has been made after hearing the arguments, does not lie unless it is given by the Statute. The Court, under the Statute, cannot review an order deliberately made after argument and entertain a fresh argument upon it with a view to ultimately confirming or reversing it. The Courts may have limited power only to make a necessary correction if the order, as drawn up, did not express the intention of the Cou