1. "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in recalling its order. Dated January 4, 1978, in I.T.A. No. 618 (Delhi) of t 476-77 and in restoring the appeal to its file for fresh disposal?"
2. We have heard Sri R. K. Agarwal, learned standing counsel for the Revenue, and Sri Pravin Mishra, Advocate, holding brief for Sri Bharat Ji Agarwal, for the assessee.
3. "Ground No.5 of the memorandum of appeal also has become redundant because the Income-tax Officer has already passed the order under section 154 of the Act giving relief to the assessee regarding development rebate and relief under section 80J of the Income Tax Act, 1961. The order of the Income-take to officer passed under section 154 of the Act is on the paper book." Subsequently, it transpired that the application under section 154 of the Act that was moved by the assessee was rejected and the assumption on which the Tribunal decided ground No.5 that relief had already been allowed to the assessee through an order under section 154 was incorrect. On an application moved by the assessee, the Tribunal recalled its order dated January 4, 1978, to the extent of the decision on ground No.5 and restored the appeal to its file to that limited extent for fresh disposal in accordance with law.
4. The question, therefore, is whether the Tribunal could do so?
5. It is not in dispute that the Tribunal's observations regarding ground No.5 that the said ground has become redundant because the Income-tax Officer has already passed the order under section 154 of the Act giving relief to the assessee was mistaken. This was a mistake apparent from the record and, therefore, under the specific powers conferred on the Tribunal by subsection (2) of section 254 of the. Act, the Tribunal had jurisdiction to rectify the mistake and the mistake could be rectified only by recalling the order in so far as it related to ground No.5 and disposing of that ground raised in the appeal afresh after hearing the parties.
6. We, therefore, do not see any error in the Tribunal's order and the question reproduced above is, therefore, 'answered in the affirmative in favour of the assessee-respondent and against the Revenue.