- (1.) Heard learned counsel for the parties and perused the records. Through the instant appeal under section 260A of the Income-tax Act, 1961, the appellant challenges the judgment and order dated April 22, 2009, passed by the Income-tax Appellate Tribunal, Lucknow Bench, Lucknow in Miscellaneous Application No. 12/LUC/2009, arising out of I.T. A. No. 707/LUC/2006 for the assessment year 2002-03.
(2.) The instant appeal have been admitted by an order dated September 8, 2009, on the following substantial question of law: I. Whether the Income-tax Appellate Tribunal is empowered under section 254(2) of the Income-tax Act to recall its order finally deciding the appeal for the reasons other than those dealt in under rules 24 and 25 of the Income-tax (Appellate Tribunal) Rules, 1963? II. Whether, under the facts and in the circumstances, the learned Income-tax Appellate Tribunal has erred in law in recalling its order dated July 27, 2007, without appreciating that issues raised in miscellaneous applications are outside the scope of mistake apparent from record? III. Whether, under the facts and in the circumstances of case, the learned Income-tax Appellate Tribunal has erred in law in recalling their order dated July 27, 2007, without appreciating that recalling of order necessitates rehearing, re adjudication and passing of fresh order? IV. Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in recalling the order to consider the facts which it had already adjudicated and elaborately discussed in its order dated July 27, 2007?
(3.) When the matter is taken up, Mr. Rohit Nandan Shukla, appearing on behalf of the respondent-assessee, prays for dismissal of the appeal only on the ground that in view of insertion of section 268A of the Income-tax Act, by the Finance Act, 2008, with retrospective effect from April 1, 1999, read with the notification of the Central Board of Direct Taxes dated May 15, 2008, fixing the monetary limit for filing the appeal, this appeal is not fit to be entertained and adjudicated.;