Customs, Excise and Gold Tribunal - Delhi
Berger Paints India Ltd. vs Collector Of Customs on 12 August, 1993
Equivalent citations: 1993ECR468(TRI.-DELHI), 1993(68)ELT479(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. The following issue has been referred to the Larger Bench as in the opinion of the referring Bench there are two conflicting decisions of the Tribunal on the question -
Whether the second application for rectification of some alleged mistakes in an Order rejecting an application for rectification under sub-section(2) of Section 129-B of the Customs Act, 1962 is maintainable?"
2. FACTUAL BACKDROP:
The appellants/applicants M/s Berger Paints India Ltd. filed their appeal No. CD/SB/1941/83-A against the Order-in-Appeal No. Cal-Cus-1415/1982 dated 8-6-1982 passed by the Appellate Collector of Customs, Calcutta, which was rejected by this Tribunal by its Final Order No. 110/91-A dated 8-2-1991 after hearing both parties. Thereafter an application bearing No. C/ROM/19/91-A was filed by the applicants under Sub-section (2) of Section 129B of the Customs Act, 1962 before this Tribunal, inter alia, on the ground that there were certain basic mistakes in the said Order of the Tribunal dated 8-2-1991 which requires rectification. By Misc. Order No. 195/91-A dated 12-8-1991, the application was rejected on the ground that the Tribunal did not find any mistake apparent on the face of its record. Undaunted by such rejection, the applicants filed the present captioned application for rectification of alleged mistakes said to be apparent from the record in Misc. Order No. 195/91-A dated 12-8-1991 passed by the Tribunal on their earlier ROM Application No. 19/91-A on the ground that six pleas taken in the first ROM Application No. 19/91-A had once again not been considered by the Tribunal in its said Order dated 12-8-1991. This application was heard by the two Members Bench of this Tribunal. During hearing, it was contended by Shri Prabhat Kumar, the learned Departmental Representative, that the present application was not maintainable against an Order rejecting the previous application for Rectification of Mistake in an Order under Sub-section (2) of Section 129B, ibid, and for this view reference was made to the two decisions of the Tribunal rendered in the case of Tracto Auto Industries Pvt. Ltd, v. Collector of Central Excise, 1989 (40) E.L.T. 354, and Siri Ram Bansal & Dr. N.S. Bhatnagar v. Collector of Customs, 1990 (49) E.L.T. 552 (Tri.). The Bench after considering the arguments opined that these two decisions are conflicting on the question of maintainability of a ROM Application on an Order on a previous ROM application passed by the Tribunal and, therefore, the present application was directed to be placed before the Hon'ble President for constituting a Larger Bench. Accordingly, the Hon'ble President constituted the present Larger Bench.
3. Shri PR. Dastider, learned consultant, appeared on behalf of the applicants. S/Shri A.K. Jain and R. Santhanam, Advocates, appeared as Inter-vener. Shri R.K. Jain, learned consultant and Secretary CEGAT Bar Association, appeared on the notice issued by the Registry as Intervener.
4. Shri P.R. Dastider, learned consultant, at the outset, submitted that the present reference to the Larger Bench is infructuous, as according to him, there is no conflict between the two decisions rendered by this Tribunal in the case of Tracto Auto Industries Pvt. Ltd. v. Collector of Central Excise, supra, and Siri Ram Bansal & Dr. N.S. Bhatnagar v. Collector of Customs, supra. Elaborating on his submission, Shri Dastider submitted that the case of Tracto Auto Industries Pvt. Ltd., supra, was decided on 30-11-1988 wherein no case law was cited at the Bar nor it is based on any authoritative pronouncement of any Court whereas the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, was decided subsequently, that is to say, on 25-5-1990 which is based on the judgment of Hon'ble Patna High Court rendered in the case of Bihar State Road Transport Corporation v. Commissioner of Income Tax, 162 ITR 114, and the Apex Court's judgment rendered in the case of Maharana Mills (Private) Ltd. v. The Income Tax Officer, AIR 1959 SC 881 : 1959 (39) ITR 350. He also cited the case of Associated Cement Companies Ltd., Jabalpur v. Collector of Central Excise, Indore, 1987 (27) E.L.T. 746, wherein it was held by the Tribunal that if the judgments of some High Courts were not brought to the notice of the earlier Benches of the Tribunal, any conclusion reached by the Tribunal contrary to the said judgments of the High Courts, for whatever reason, cannot come in the way of following the ratio of these judgments by the Tribunal in a subsequent case. He also cited the case of P.H. Advani v. Harpal Singh, AIR 1975 Bom. 120 and stress was laid on paragraph 11 of the report wherein it was held that it is well settled that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Bench of that Court and further that an interpretation (and equally a misinterpretation) of a binding decision of the Supreme Court will itself be binding subsequently on co-ordinate courts and must be got corrected by a higher Court, and no co-ordinate Court on that ground may refuse to follow an earlier decision, opining that in its view the said earlier decision had wrongly understood or improperly applied a decision of a higher Court. This decision was cited to show that the case of Tracto Auto Industries Pvt. Ltd., supra, was decided by a two Member Bench of the Tribunal whereas the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, was decided by a three Member Bench of the Tribunal. To top his arguments, he submitted that the present application for rectification of alleged mistake in the Order passed by the Tribunal on the first Application for Rectification of Mistake (Order No. 195/91-A dated 12-8-1991) is maintainable and there is no bar under Sub-section (2) of Section 129B of the Act for filing such an application. In other words, his submission was that successive applications for Rectification of Mistake can be filed if there is any mistake in the Order passed on the earlier application for rectification of the Final Order passed by the Tribunal.
5. It was argued by Shri R.K. Jain, learned consultant and Secretary of the CEGAT Bar Association, that the case of Tracto Auto Industries Pvt. Ltd., supra, is not based on any authority of any High Court or of the Tribunal, and therefore, besides it being of an earlier date and was rendered by a two Member Bench, is to be ignored in view of the later judgment of the Tribunal rendered in the case of Sin' Ram Bansal v. Dr. N.S. Bhatnagar, supra, which is based on the decision of the Apex Court rendered in the case of Maharana Mills (Private) Ltd., supra, and also on the judgment rendered by the Patna High Court in the case of Bihar State Road Transport Corporation, supra. He also took us through Sub-section (2) of Section 129B of the Act to show that it speaks of amendment of "any order" passed by the Tribunal under Sub-section (1) of the same Section. In a nutshell, his submission was that repeated/successive application for Rectification of Mistake appearing in the Order passed by the Tribunal on the earlier application for rectification under Section 129B(2) of the Act is maintainable if any new ground(s) is available. Adding that, Order passed on the application for rectification cannot be an Order of affirmation. To support his contention, he cited the case of I.C. Corporation (P) Ltd. v. Tax Officer, (1975) 35 STC 1 (SC) & IT. Officer v. Ashok Textiles Ltd., AIR 1961 SC 699. He also referred to paragraph 8 of the Misc. Order No. 195/91-A dated 12-8-1991.
6. While adopting the arguments of Shri Dastider and Shri R.K. Jain that there is no conflict between the said two decisions of the Tribunal, as aforesaid, it was added by the Intervener, Shri A.K. Jain, Advocate, that even the question of following the earlier decision rendered by this Tribunal in the case of Tracto Auto Industries Pvt. Ltd., supra, by the other Bench deciding the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, does not arise, as the case of Tracto Auto Industries Pvt. Ltd., supra, was decided by the North Regional Bench of the Tribunal whereas the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, was decided by the Special Bench 'A' of the Tribunal. Elaborating on his submission, it was contended that under the scheme of the Customs Act, 1962 (see Sections 129, 129A, 129B & 129C), every appeal against a decision or order relating among other things, to the determination of any question having a relation to the rate of duty of customs, or to the value of goods for purposes of assessment, shall be heard by Special Bench constituted by the President for hearing such appeals whereas the appeals relating to the offence cases are to be heard by Regional Bench of the Tribunal constituted at different places, namely, at New Delhi, Madras, Bombay and Calcutta known as North Regional Bench, South Regional Bench, West Regional Bench and East Regional Bench respectively, and therefore, the decision rendered by the North Regional Bench of the Tribunal in the case of Tracto Auto Industries Pvt. Ltd., supra, and Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, cannot be said to be of a co-ordinate Bench. He also placed reliance on the case of Associated Cement Companies Ltd., Jabalpur v. Collector of Central Excise, supra. It was also contended that the decision rendered by this Tribunal in the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, be followed being of a later date in view of the judgment rendered by the Apex Court in the case of U.O.I. v. Raghubir Singh, AIR 1989 SC 1933. Placing reliance on the meaning of the word "over-rule" given in the Black's Law Dictionary, 5th Edition, page 995, it was also contended by him that the case of Tracto Auto Industries Pvt. Ltd., supra, stands impliedly over-ruled by the decision of this Tribunal rendered subsequently in the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra. Continuing further, it was contended by Shri A.K. Jain, Advocate, that the present application for rectification of the alleged mistake in the Order passed by the Tribunal rejecting the earlier application for rectification is maintainable as the Order rejecting the earlier application merges in the final Order passed by the Tribunal and cited the case of Vedantham Raghaviah v. Third Additional Income-Tax Officer, (1963) 49 ITR 314 (Madras); S. Arthanari v. First Income-Tax Officer, (1972) 83 ITR 828 (Madras); and Jeewanlal (1929) Ltd. v. Additional Collector of Income-Tax, (1977) 108 ITR 407 (Cal.). It was further contended that if any mistake is discovered later on in the Order passed by the Tribunal while disposing of the application for rectification, the same can be rectified through another application for rectification and cited the case of Income Tax Officer v. Ashok Textiles Ltd., (1961) 41 ITR 732 (SC); Hira Lal Sutwala v. Commissioner of Income Tax, (1965) 56 ITR 339; M/s Maharana Mills (Private) Ltd. v. The Income Tax Officer, AIR 1959 SC 881; and Dalmia Laminators, Calcutta v. Collector of Central Excise, Calcutta, 1991 (17) ETR 674, wherein the meaning of the expression "mistake apparent on the face of the record" was discussed by the Tribunal.
7. Appearing as an Intervener, Shri R. Santhanam, Advocate, submitted that an application for rectification of any mistake apparent in the Order passed by the Tribunal rejecting the earlier application for rectification is maintainable. Elaborating on his submission, it was contended by him that Section 254(2) of the Income Tax Act, 1961 is in para materia with Section 129-B(2) of the Customs Act and is to be interpreted liberally and cited the case of Smart P. Ltd. v. Income-Tax Appellate Tribunal, (1990) 182 ITR 384. He also cited the case of L. Hirday Narain v. ITO, (1970) 78 ITR 26 (SC), to show that multiplicity of proceedings is inherent in the judicial system. He also cited the following cases: -
(1) Maharana Mills Pvt. Ltd. v. ITO, 1959 (36) ITR 350 : AIR 1959 (SC) 881;
(2) Mahendra Mills Ltd. v. P.B. Desai AAC and Anr., 1975 (99) ITR 135 (SC);
(3) Bihar State Road Transport Corpn. v. CIT, 1986 (162) ITR 114 (Pat.);
(4) Distributors (Baroda) Pvt. Ltd. v. UOI, 1985 (155) ITR 120 (SC);
(5) Shiv Deo Singh and Ors. v. State of Punjab, AIR 1963 SC 1909;
(6) Siri Ram Bansal v. Collector of Customs, 1990 (49) E.L.T. 552 (CEGAT);
(7) ITO v. Ashok Textiles Ltd., AIR 1961 (SC) 699 (Para 5);
(8) Kil Kotagiri Tea & Coffee Estate Co. v. ITAT, 1988 (174) ITR 579 (Ker.);
(9) Anchor Pressing Pvt. Ltd. v. CIT, AIR 1987 SC 575 (Para 5 at p. 577);
(10) CIT v. Shakuntala Rajeswar, 1986 (16) ITR 840 (Delhi);
(11) Mrs. KTMS Uma Salma v. CIT, 1983 (144) ITR 890 (Mad.);
(12) CIT v. ITAT and Anr., 1988 (172) ITR158 (MP);
(13) Kuttikrishnan Nair v. ITAT, 1958 (34) ITR 540 (Mad.);
(14) Sitaramappa Ananthappa Manvi v. CIT, 1952 (21) ITR 333 (Bom.);
(15) ITO v. Singer Singh & Sons, SB 1970 (75) ITR 646 (Allahabad);
(16) Neeta S. Shah v. CIT, 1991 (191) ITR 77 (Karnataka);
(17) Lakshmi Electric Corporation v. CIT, 1991 (188) ITR 398 (All);
(18) CIT v. ITAT, 1979 (120) ITR 231 (Kerala);
(19) CIT v. Smt. Eva Raha, 1990 (121) ITR 293 (Gauhati);
(20) CIT v. Kelvin Jute Co. Ltd., 1980 (126) ITR 679 (Cal.);
(21) CIT v. Mita Lal Ashok Kumar, 1986 (158) ITR 755 (MP);
(22) ITO v. ITAT, 1965 (58) ITR 634 (AIL);
(23) Seshasayee Paper and Boards Ltd. v. IACIT, 1986 (157) ITR 342 (Mad.);
(24) Kapurchand Shrimal v. CIT, (1981) 131 ITR 451 (SC);
(25) CIT v. Bhansidhar & Sons, AIR 1986 SC 421;
(26) CIT v. ITAT and Ors., 196 ITR 564 (1992) (Orissa);
(27) CIT v. President, ITAT, (1992) 63 Taxman 338 (Orissa);
(28) CIT v. ITAT, (1992) 196 ITR 590 (Orissa); and (29) CIT v. ITAT and Anr., (1992) 196 ITR 683 (Orissa).
8. In reply, Shri Prabhat Kumar, learned SDR, submitted that in the instant case the only question is, as to whether the present application for rectification of some alleged mistakes in Misc. Order No. 195/91-A dated 12-8-1991 passed by the Tribunal whereby the earlier application for rectification of alleged mistakes in the final Order passed by the Tribunal was rejected is maintainable under Section 129-B(2) of the Customs Act and this issue has been answered squarely in the negative by the Division Bench of the Orissa High Court in the case of Commissioner of Income Tax v. President, ITAT, (1992) 63 Taxman-Tax Reports 338, cited at the Bar by Shri R. Santhanam. He also cited the case of Commissioner of Income-Tax v. N.J. Dadabai, (1978) 115 ITR 317.
9. It was vehemently contended by him that Section 129-B(2) of the Customs Act should not be interpreted in a manner which may lead to the abuse of the process of the Court as there would be no end to filing of such frivolous application to keep the lis alive for all time to come.
10. In rejoinder, the learned consultant for the applicants as well as the Interveners reiterated their arguments and added that there is no statutory bar for filing repeated applications for rectification, if need be, as the principle of res-judicata is not applicable to such applications.
11. We have considered the submissions and gone through the case law cited at the Bar.
12. From the facts, as narrated above, it is clear that after the dismissal of the appeal an application under Section 129B(2) of the Customs Act was filed by the applicants before the Tribunal, inter alia, on the ground that there were certain mistakes in the Final Order of the Tribunal dated 8-2-1991, which required rectification. This application was numbered as Misc. Application No. C/ROM/19/91-A, and vide Misc. Order No. 195/91-A dated 12-8-1991 it was rejected. Thereafter the applicants filed the present application once again under Section 129-B(2) of the Act for rectification of alleged mistakes said to be apparent from the record in the said Order of rejection of the earlier application for rectification, that is to say, in Misc. Order No. 195/91-A dated 12-8-1991. Therefore, the question before us is as to whether an Order rejecting an application for rectification under Section 129B(2) is available to be rectified under Section 129B(2)? In other words, whether the present application is maintainable. It may be stated here that though the learned consultant for the applicants and the Interveners tried to enlarge the scope of the present reference to the Larger Bench by arguing that the power to rectify an Order does not get exhausted by its being invoked once and the rectification of an apparent mistake does not prevent subsequent rectification of another apparent mistake under the same provision, and therefore, successive applications can be filed for rectification, we confine ourselves to the aforesaid issue only as the other contention, as to whether the successive or repeated applications for rectification are permissible, and if so, under what circumstances would be of an academic interest.
13. At the outset, it may be stated that in the Customs Act, 1962 there is only one provision that is to say, sub-section(2) of Section 129B which empowers the Tribunal to amend any Order passed by it under sub-section(1) with a view to rectify any mistake apparent from the record unlike the Income Tax Act which contains several provisions to amend the Order with a view to rectify the mistake apparent from the record by different authorities in different situations. There is no direct authority of any Court on the interpretation of sub-section(2) of Section 129B of the Customs Act. However, as submitted by both sides, the said sub-sections (1) and (2) of Section 129B of the Customs Act are in pari materia with Section 254(1) and (2) of the Income Tax Act, 1961 which may be reproduced for ready reference as under -
CUSTOMS ACT, 1962 INCOME TAX ACT, 1961 129B. Orders of Appellate Tribunal - (1) 254. Orders of Appellate Tribunal - (1) The Appellate Tribunal may after giving The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of both the parties to the appeal an oppor-
being heard, pass such orders thereon as it tunity of being heard, pass such orders thinks fit, confirming, modifying or annull- thereon as it thinks it. ing the decision or order appealed against [It corresponds to Section 33(4) of the or may refer the case back to the authority repealed Income Tax Act of 1922, which which passed such decision or order with read as follows - such directions as the Appellate Tribunal (4) The Appellate Tribunal may, after may think fit, for a fresh adjudication or giving both parties to the appeal an op- decision, as the case may be, after taking portunity of being heard, pass such orders additional evidence, if necessary. thereon as it thinks fit, and shall com- municate any such orders to the assessee and to the Commission.] (2) The Appellate Tribunal may, at any (2) The Appellate Tribunal may, at any time within four years from the date of the time within four years from the date of the order, with a view to rectifying any mistake order, with a view to rectifying any mistake apparent from the record, amend any order apparent from the record, amend any passed by it under Sub-section (1) and shall order passed by it under Sub-section (1), make such amendments if the mistake is and shall make such amendment if the brought to its notice by the Collector of mistake is brought to its notice by the as- Customs or the other party to the appeal: sessee or the Assessing Officer: Provided X X X X X Provided X X X X X (3) XXXXXXXXXX (3) XXXXXXXXXX (4) Save as otherwise provided in Section (4) Save as provided in Section 256, or- 130 of Section 130-E, orders passed by the ders passed by the Appellate Tribunal on Appellate Tribunal on appeal shall be final appeal shall be final.
14. Here it would also be advantageous to reproduce Section 130(1) of the Customs Act, which corresponds to Section 256(1) of the Income Tax Act, 1961 which provides for making a reference to the High Court for referring any question of law arising out of Order passed under Section 129B of the Customs Act or Section 254 of the Income Tax Act. The said Section may be reproduced as under -
CUSTOMS ACT, 1962 INCOME TAX ACT, 1961 130. Statement of case to High Court - (1) 256. Statement of case to the High Court The Collector of Customs or the other party - (1) The assessee or the Commissioner may, within sixty days of the date upon may, within sixty days of the date upon which he is served with notice of an order which he is served with notice of an order under Section 129B (not being an order relat- under Section 254, by application in the ing, among other things, to the determina- prescribed form, accompanied where the tion of any question having a relation to the application is made by the assessee by a rate of duty of customs or to the value of fee of two hundred rupees, require the goods for purposes of assessment), by ap- Appellate Tribunal to refer to the High plication in such form as may be specified Court any question of law arising out of by rules made in this behalf, accompanied, sucn order and, subject to the other where the application is made by the other provisions contained in this section, the party, by a fee of two hundred rupees, re- Appellate Tribunal shall, within one quire the Appellate Tribunal to refer to the hundred and twenty days of the receipt of High Court any question of law arising out such application, draw up a statement of of such order and, subject to the other me case and refer it to the High Court: provisions contained in this Section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided XX XX XX Provided X X X X X X [This sub-section corresponds to Section 66(1) of the repealed Income Tax Act, 1922 which read as follows - 66. Statement of case by Appellate Tribunal to High Court - (1) Within sixty days of the date upon which he is served with notice of an order under Sub-section (4) of Section 33 the assessee or the Commis-sioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court: Provided XXX XX]
15. From a reading of the said two Sections, it is clear that, these are identically worded and the key expression used in Sub-section (1) is pass "such Orders" thereon and in Sub-section (2) the key expressions are "within four years from the date of the Order"; "any mistake apparent from the record", and "amend any order passed by it under Sub-section (1)". In the present case, as aforesaid, we are concerned with the interpretation of the expression "to amend any order passed by it under sub-section(1)" with a view to rectifying any mistake, and therefore, we are not required to dwell ourselves on the cases cited at the Bar which deal with the meaning and scope of expression "mistake apparent from the record" and for that purpose what constitutes "record", (see Maharana Mills Pvt. Ltd. v. ITO; ITO v. Ashok Textiles Ltd.; Kil Kotagiri Tea & Coffee Estate Co. v. ITAT; Anchor Pressing Pvt. Ltd. v. CIT; CIT v. Shakuntala Rajeswar; CIT v. ITAT and Anr.; Neeta S. Shah v. CIT; Lakshmi Electric Corpn. v. CIT; Kapurchand Shrimal v. CIT; CIT v. ITAT and Ors.; CIT v. ITAT supra) or what is the starting point of limitation for computing period of limitation of "four years" for the purpose of rectification (see Bihar State Road Transport Corpn. v. CIT & Kutti-krishnan Nair v. ITAT supra) or "amend" (see CIT v. Mita Lal Ashok Kumar; CIT v. ITAT, & CIT v. ITAT supra) or brought to its notice by either party or suo motu power of the Tribunal to correct any error or its inherent powers (see Shiv Deo Singh and Ors. v. State of Punjab; Mrs. KTMS Uma Salma v. CIT; Kuttikrishnan Nair v. ITAT; Sitaramappa Ananthappa Manvi v. CIT; ITO v. Singer Singh & Sons; & ITO v. ITAT supra) or power of the Tribunal to set aside its Final Order passed on appeal ex-parte (see CIT v. ITAT supra) or opportunity to be heard to be accorded to both sides while dealing with an application for rectification (see case of Smart Pvt. Ltd. v. ITAT supra) or with the cases dealing with the theory of Merger (see case of Vedantham Raghaviah v. Third Addl. Income Tax Officer; S. Arthanari v. First ITO; and Jeewanlal (1929) Ltd. v. Addl. Collector of Income-Tax supra), as when the application for rectification is rejected there remains nothing to be merged into the Final Order passed by the Tribunal under Section 129B(1).
16. Interpreting sub-section(2) of Section 254 of the Income-Tax Act, 1961 very recently a Division Bench of the Orissa High Court in the case of Commissioner of Income-Tax v. President, Income-tax Appellate Tribunal, (1992) 63 Taxman - Tax Reports 338, held that an Order rejecting the application for rectification under Section 254(2) is not available to be rectified under Section 254(2). In that case one Shri H.K. Phool (the assessee) filed his return of income for the assessment year 1978-79. The Assessing Officer found that a loan of Rs. 50,000/- from Smt. Sara Devi was reflected. This amount was held as unexplained investment of the assessee and was added to the returned income as from undisclosed source. In appeal, the Commissioner (Appeals), held that the matter needed further enquiry, and the assessment was set aside for giving fresh finding regarding genuineness of the loan. The Assessment Officer before whom the return was filed assailed the order of the Commissioner (Appeals) before the Income-Tax Appellate Tribunal. The Tribunal held that the Commissioner (Appeals) was not justified in remanding the matter for further enquiry. Thereafter, an application under Section 254(2) was filed before the Tribunal, inter alia, on the ground that there were certain basic mistakes in the Order of the Tribunal dated 25-5-1989, which required rectification. By Order dated 6-3-1990, the application was rejected. Undaunted by such rejection, the assessee filed another application under Section 254(2) for rectification of alleged mistake in the Order dated 6-3-1990 whereby the earlier application for rectification was rejected. The Tribunal by its Order dated 13-12-1990 accepted the prayer for rectification. Against this Order of the Income Tax Appellate Tribunal dated 13-12-1990, the Commissioner of Income-Tax filed the Writ Petition in the Orissa High Court. It was argued on behalf of the Revenue that the second application for rectification was not maintainable in law. Accepting the said contention of the Revenue, the Court set aside the impugned Order dated 13-12-1990 passed by the Income-Tax Appellate Tribunal observing as follows -
"4. Section 254(2) empowers the Tribunal to amend any order passed by it under Sub-section (1) with a view to rectifying any mistake apparent from record at any time within four years from the date of the Order. Therefore, to attract applicability of Section 254(2) the mistake which is sought to be rectified must be apparent from the record, and the same must be in any order passed under Sub-section (1) of Section 254. The order referred to in Section 254(1) is one relating to an appeal filed by either assessee or revenue. Section 254(1) reads as follows:
"Order of Appellate Tribunal - (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit."
The 'appeal' referred to in the provision, is one filed under Section 253. Therefore, the order which can be rectified must be one which has been passed by the Tribunal, in an appeal filed under Section 253. In our view, an order rejecting an application for rectification under Section 254(2) is not available to be rectified under Section 254(2). The same may relate to an appeal, but is not an order passed by the Tribunal under Sub-section (1) of Section 254. As indicated above, the assessee's application for rectification under Section 254(2) was rejected by the Tribunal. The second application was for rectification of some alleged mistakes in the said order of rejection. Section 254(2) had no application to such an order. The Tribunal was not justified in purporting to act under Section 254(2), and passing the impugned order. In view of this, we do not think it necessary to deal with the submissions relating to the dispute, whether there was any rectifiable mistake apparent from the record or not."
(Emphasis ours) 16.1 This case squarely applies to the present controversy in hand, and therefore, applying the ratio of this case it can be safely held that the present application for rectification of an alleged mistake in the Order passed .by the Tribunal rejecting the earlier application for rectification is not maintainable, as an Order rejecting an application for rectification under Section 129B(2) of the Customs Act is not an Order under sub-section(1) of Section 129B of the Act.
17. Besides, we also find that the Madhya Pradesh High Court has also taken a similar view in the case of Popular Engineering Co. v. Commissioner of Income-Tax, (1983) 140 ITR 398. In that case a reference was made under Section 256(1) of the Income-Tax Act, 1961 by the Income Tax Appellate Tribunal to the High Court for opinion, inter alia, on the question "Whether there was any mistake apparent in the Order of the Tribunal dated 18th May, 1979, liable to be rectified u/s. 254(2) of the Act and, if so, to what effect?" The facts which led to the said reference were : Against the fresh assessment completed by the I.T.O. on 25th May, 1976, the assessee preferred an appeal before the AAC. The AAC partly accepted the claim of the assessee but confirmed the rest. Against this Order of the AAC, the assessee as well as the Department filed their appeals before the Income Tax Appellate Tribunal. The Tribunal dismissed both the appeals. The assessee after the dismissal of its appeal filed a Misc. Application under Section 254(2) of the Act seeking the rectification of a mistake said to be apparent from the record. This application was dismissed by the Tribunal vide its Order dated 18-1-1980 holding that there was no mistake apparent from the record and no question of rectification arose. The assessee thereafter sought a reference under Section 256(1) of the Act on certain questions said to have arisen out of the said Order dated 18-1-1980 whereby the application for rectification was rejected by the Tribunal. Accordingly, the Tribunal made a reference to the High Court. Before answering the reference made by the Income Tax Appellate Tribunal, the Court considered the maintainability of the reference itself against the Order passed by the Appellate Tribunal dated 18-1-1980 and ultimately held that no reference from the Order rejecting an application for the rectification of any mistake is tenable under Section 256(1) of the Income Tax Act observing that, "The language used in Section 256(1) shows that the Order contemplated under Section 256(1) is the order passed under Section 254 of the Act. Under Section 254(1) the Appellate Tribunal passes an Order on the appeal filed by the assessee or the Revenue. This Order may be amended under Section 254(2) of the Act with a view to rectifying any mistake apparent from the record. If, however, the application for rectification is dismissed, there is no amendment of the Order passed under Section 254(1) of the Act. Since no reference in the instant case was sought in respect of the appellate order passed under Section 254(1), we are of the view that no reference from the Order rejecting an application for rectification of any mistake is tenable under Section 256(1) of the Act...." For this view, reliance was placed for the purpose of analogy on the case of Judicial Committee in CIT v. Tribune Trust, (1948) 16 ITR 214 (PC). In the case of Venkataramayya v. IT. Commr, AIR 1960 Andhra Pradesh 487, a Division Bench of the Andhra Pradesh High Court also took a similar view while interpreting Section 33(4) of the Income Tax Act, 1922 which corresponds to the present Section 254(1) of the Income Tax Act, 1961, as reproduced above, and held that the granting of an application for rectification under Section 33(4) is not an Order within Section 66(1) enabling a case to be stated for reference (Para 7) and in support of this conclusion the Court relied upon the case of Commissioner of Income Tax, Madras v. Sevugan, (1948) 16 ITR 59 : AIR 1948 Madras 418, wherein it was held by the Division Bench of the Madras High Court that the granting of an application for rectification is not an Order within Section 33(4) nor is it one in respect of which Section 66(1) of the Income Tax Act, 1922 which enables a case to be stated. This view was reiterated by the same High Court in the case of Commissioner of Income Tax, A.P. v. N.J. Dadabai, (1978) 115 ITR 317. To the same effect is also the view of the Punjab High Court. In the case of R.B.L. Banarsi Dass & Co. Ltd. v. Income Tax Appellate Tribunal, (1959) 35 ITR 624, it was held-by the Court that, where the Appellate Tribunal acts under Section 35 and makes an Order rectifying its Order on appeal under Section 33(4) of the Income Tax Act, 1922 a question of law arising out of the Order of rectification passed under Section 35 cannot be referred to the High Court under Section 66, as the amended Order cannot be regarded as one made under Section 33(4).
18. In the light of the above discussion, we hold that the decision rendered by this Tribunal in the case of Tracto Auto Industries Pvt. Ltd., supra, is in line with the ratio of the aforesaid cases, though no authority had been cited for taking this view in the Order and the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, 1990 (49) E.L.T. 552 (Tri.), does not lay down the good law, so far as it relates to the present controversy. For, in that case reliance was wrongly placed on the case of Maharana Mills v. IT. Officer, Porbander, AIR 1959 SC 881 and Bihar State Road Transport Corpn. v. Commissioner of Income Tax, (1986) 162 ITR 114. In the case of Maharana Mills (Pvt.) Ltd. v. IT. Officer, Porbander, supra, the Apex Court was concerned with the meaning and scope of the expression "apparent from the record" appearing in the erstwhile Section 35 of the Income Tax Act, 1929 and while dealing so observed that, the words used in the Section (35) are "apparent from the record" and the record does not mean only the Order of assessment but it comprises all proceedings on which the assessment order is based, and the Income Tax Officer is entitled for the purpose of exercising his jurisdiction under Section 35 to look into the whole evidence and the law applicable to ascertain whether there was an error. In other words, the present controversy was not before the Apex Court in that case. Likewise, in the case of Bihar State Road Transport Corporation v. Commissioner of Income Tax, supra, the identical issue which is involved in the present case was not before the Court. Instead the question before the Court was whether the Order of rectification was barred by limitation as it was passed more than four years after 15th February, 1965. Holding that it was not time barred, the Court held that since original assessment orders and first order of rectification recomputing depreciation were passed on 15th February, 1965 and 17th August, 1966; second order of rectification passed on November 14,1969 was not barred by limitation under Section 154 of the Income Tax Act, 1961. From this, it is clear that, the question as to whether an application for rectification of an alleged error in the Order passed under Section 254(2) of the Act, rejecting the application for rectification is maintainable or not was not before the Apex Court. Thus, we hold that the case of Sin Ram Bansal & Dr. N.S. Bhatnagar v. Collector of Customs, supra, does not lay the correct law, so far as it holds that an application for rectification of an error apparent in the Order rejecting the application for rectification is maintainable under Section 129B(2) of the Customs Act, 1962, in view of the direct ruling of Orissa High Court reported in 63 Taxman-Tax Reports 338, supra.
19. In the result, we answer the question referred to us in the emphatic "No" and hold that the second application for rectification of some alleged mistake in an Order rejecting an application for rectification under sub-sec-tion(2) of Section 129B of the Customs Act, 1962 is not maintainable.