1.  COMMISSIONER OF INCOME TAX (GHAZIABAD) ....PETITIONER THROUGH MS. RASHMI CHOPRA, ADVOCATE Vs. KRISHNA GUPTA & ORS. WRIT PETITION (CIVIL) NO. 2174/2011, DATE OF ORDER: 31.03.2011, HIGH COURT OF DELHI

The Tribunal has the power to recall its earlier order disposing of an appeal under Section 254(1) of the Act, but the said power has to be  exercised rarely and when a case for entire recall is made out. It cannot be exercised on every application moved under Section 254(2) of the Act. The reasons and grounds given in the application for recall of the order dated 12th February, 2004 do not justify exercise of power of making total recall. In fact what the petitioner wanted was re-hearing of the appeal on merits. The application under Section 254(2) of the Act is for rectification or modification of the order of the Tribunal when there is a mistake is apparent from the record. The Tribunal in the garb of mistake cannot give fresh hearing and re-examine the merits as an appellate court.

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2.  COMMISSIONER OF INCOME TAX Vs. THE SIMBHAOLI SUGAR MILLS LIMITED, ITA NOS.1391/2009, 1362/2009 & 1130/2009, DATE OF DECISION: 09.03.2011, HIGH COURT OF DELHI

From the above chronological narration of facts and the findings recorded by the authorities below, it is seen that the basis of issue of notice under Section 148 for re-assessment for the assessment year under consideration was nothing but the internal audit report. In the Reasons to Believe as recorded by the AO, he had mentioned about the objections as raised in the audit report. Based on this audit report, a review was sought to be made by the AO under the name of re-assessment alleging escape of income in the assessment already concluded. With regard to the aforesaid two entries, the particulars were already available before the AO. The assessee had made complete disclosure of the particulars before the AO in the proceedings of assessment under Section 143(3). Reopening of assessment after four years was apparently not permissible. There is a catena of judgments with regard to the proposition of law that assessment cannot be reopened under Section 147 of the Act merely on the basis of change of opinion beyond the period of four years when there was no fault on the part of the assessee to disclose, truly and completely the material particulars.

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