A.P. Misra, J. - (1.) THIS writ petition challenges the orders dated May 14, 1990, and October 29, 1990 (annexures-1 and 2 to the writ petition), passed by the Income-tax Appellate Tribunal, Delhi Bench 'SMC', New Delhi (respondent No. 2), for the assessment year 1982-83 and further directing the said respondent to dispose of the petitioner's application under Section 254(2) of the Income-tax Act, 1961. During the pendency of the writ petition, the order was passed by respondent No. 2 on the petitioner's application under Section 254(2) of the Act on June 23, 1994, the petitioner further seeks quashing of the same, which is annexed as annexure SA-2 to the supplementary affidavit.
(2.) THE brief facts are, the petitioner started selling her agricultural land in plots from the assessment year 1976-77 and continued to sell up to the assessment year 1982-83. THE Income-tax Officer initially treated the sale of plots as an adventure in the nature of trade/business as against capital gain claimed by the assessed. This issue was finally decided by the Income-tax Appellate Tribunal by its order dated July 9, 1984, holding the sale of plots as business activity and not capital gain and directed for adoption of land at the rate of Rs. 17 per sq. yard as its initial cost. Similar direction was issued in the appeals for the assessment years 1977-78 to 1980-81. However, for the assessment year 1982-83, to which the present petition relates, the Income-tax Officer, while passing the assessment order dated January 28, 1984, under Section 143(3) of the Act, followed the land value at Rs. 12 instead of Rs. 17 basing this order following the orders passed for the previous years. For the year 1981-82, as after passing the assessment order the aforesaid Income-tax Appellate Tribunal had made an order relating to the price of the land fixing at Rs. 17 per sq. yard, the Income-tax Officer fallowing the direction of the Tribunal treated the value of the land at Rs. 17 per sq. yard and revised the assessment. After the aforesaid decision of the Tribunal, the petitioner moved an application on January 10, 1985, under Section 154 of the Act requesting for the refund by taking the land value at Rs. 17 per sq. yard as adopted in the past years, namely, from 1977-78 to 1981-82. This application was rejected on July 21, 1987, holding that when the assessment order was passed by the Income-tax Officer, the Tribunal, although was not in existence, hence no question of following the same. Aggrieved against that, the appeal was preferred, which was allowed by the Appellate Assistant Commissioner holding that the mistake should be treated as a mistake apparent on the face of the record. Against this, the Department preferred second appeal before respondent No. 2. The Tribunal allowed the Department's appeal by order dated May 14, 1980 (impugned). Thereafter the petitioner moved an application before respondent No. 2 under Section 254(2) on September 24, 1990, for rectifying the said order. The Tribunal passed a one line order "no hearing" on October 29, 1990, which is also impugned. On April 9, 1991, again a request was made to respondent No. 2 to hear and decide the application under Section 254(2) on the merits. Thereafter through a supplementary affidavit it is averred that on June 23, 1994, the Tribunal passed an order dismissing the aforesaid application of the petitioner, which has been annexed as annexure SA-2 to the supplementary affidavit. From the aforesaid facts, it is clear and has not been doubted on behalf of the Revenue that for the assessment years 1977-78 to 1981-82 the same point and the same question were involved as has been raised for the year 1982-83 in the present case. However, the argument is, the respondent authority, though accepting the rate of land at Rs. 17 per sq. yard for the earlier assessment year, has not rectified the mistake for the year 1982-83 on the same pattern. On January 28, 1994, the assessing authority, as aforesaid, fixed the rate at Rs. 12 per sq. yard for the assessment year 1982-83. Then on October 29, 1984, for the assessment years 1977-78 to 1980-81, the Tribunal under Section 254(2) rectified the earlier order by placing the rate at Rs. 17 in place of Rs. 12 per sq. yard. Thereafter, the petitioner on January 10, 1985, filed application under Section 154 before the Income-tax Officer for the assessment year 1982-83, who rejected the same for rectifying the value at Rs. 17 per sq. yard in place of Rs. 12. Then on December 16, 1987, the Appellate Assistant Commissioner allowed the appeal against the Department. The Department filed an appeal before the Tribunal, which stood allowed on May 14, 1990, by the Tribunal. Thereafter the aforesaid application under Section 254(2) for rectification was made.
(3.) THE only point pressed before us is whether rejection of the application of the petitioner for rectification of the mistake for the year 1982-83 is sustainable or not ? THE argument on behalf of the petitioner is, it is mistake apparent on the face of the record and respondent No. 2 refusing to rectify has committed an illegality. On behalf of the Revenue, the contention is : Firstly, as petitioner did not prefer an appeal against the assessment order dated January 28, 1984, passed under Section 143(3) for the year in question, thus the present application for rectification is not maintainable as the assessment order, in law, has become final, Secondly, only on account of the subsequent decision of the Tribunal would not be a ground for rectification to be classified as mistake which is apparent on the face of the record within the meaning both under Sections 154 and 254 of the Act. ;