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record. Our aforesaid view is supported by the judgment of a three judge bench of the Hon'ble Apex Court in the case of Income Tax Officer Vs. Ashok Textiles Ltd. (1961) 41 ITR 732 (SC). The Hon'ble Apex Court in its aforesaid order in the case of Ashok Textiles Ltd. (supra) that was rendered in context of Section 35 of 1922 Act (pari materia to Section 154), had observed that the restrictive operation of power of review under Order XLVII, Rule 1 of Code of Civil Procedure, 1908 is not applicable in case of Section 35 of 1922 Act. We, thus, are of the considered view, that as held by the Hon'ble Apex Court in the case of Reliance Telecom Limited (supra) though the Tribunal u/s.254(2) can rectify/correct any mistake apparent from record but cannot review its order, i.e. revisit its earlier order and go into details on merits, therefore, the contention of the Ld. ARs who have tried to read the restriction placed on review of an order by a court as provided in the "Explanation" to order XLVII, Rule 1 into the scope of power of the Tribunal to rectify any such mistake apparent from record cannot be accepted. On the contrary, we find that the issue leading to filing of the present miscellaneous applications by the department, i.e. as to whether an order passed by the Tribunal while disposing off an appeal can be rectified u/s. 254(2) of the Act for the purpose of bringing the MA No.1/RPR/2023 & 38 Others.

any mistake apparent from the record and amend any order passed by it under sub-section (1). Under the second part of Section 254(2) reference is to the amendment of the order passed by the Tribunal under sub-section (1) when the mistake is brought to its notice by the assessee or the Assessing Officer. Therefore, in short, the first part of Section 254(2) refers to suo motu exercise of the power of rectification by the Tribunal whereas the second part refers to rectification and amendment on an application being made by the Assessing Officer or the assessee pointing out the mistake apparent from the record. In this case we are concerned with the second part of Section 254(2). As stated above, application for rectification was made within four years. Application was well within four years. It is the Tribunal which took its own time to dispose of the application. Therefore, in the circumstances, the High Court had erred in holding that the application could not have been entertained by the Tribunal beyond four years."

whether or not the aforesaid subsequent judgment of the Hon'ble Apex Court would render our orders passed while disposing off the present appeals, wherein a view to the contrary had been taken, as suffering from a mistake which being apparent, patent, obvious and glaring from record would render the same amenable for rectification u/s. 254(2) of the Act?

33. In our considered view, the aforesaid issue can safely be resolved by referring to the judgment of the Hon'ble Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC). The Hon'ble Apex Court by referring to the order of the Hon'ble High Court of Gujarat in the case of Suhrid Geigy Ltd. Vs. CIT (1999) 237 ITR 834 (Guj), had observed, that if a point is covered by the decision of the Hon'ble Jurisdictional High Court rendered prior to or even subsequent to the order proposed to be rectified, then it could be said to be a mistake apparent from record u/s. 254(2) of the Act and could be corrected by the Tribunal. The Hon'ble Apex Court drawing support from Blackstonian theory, had observed that it is not the function of the court to pronounce a "new rule" but to maintain and expound the old one. The Hon'ble Apex Court had observed that if a subsequent decision altered the earlier one, then the later decision MA No.1/RPR/2023 & 38 Others.

"40. The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under Section 254(2).

41. A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj). It was held by the Division Bench of the High Court that if the point is covered by a decision of the Jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said to be "mistake apparent from the record" under Section 254 (2) of the Act and could be corrected by the Tribunal.