- (1.) The appeal is directed against a judgment and order dated 21st September, 2007 passed by the Income Tax Appellate Tribunal E Bench, Kolkata in M.A. No. 38/Kol/2007 arising out of ITA No. 395/Kol/2006 pertaining to the assessment year 2002-03, by which the order dated 25th August, 2006 passed in ITA No. 395/Kol/2006 was varied. The order dated 25th August, 2006 was as follows:- On hearing the rival submissions on this issue, we could not, however, persuade ourselves to agree with the contention of Dr. Pal as because the case laws cited by him are not specific on the issue in hand. Further, in our considered view, erratic change in taking decision by the State Government machinery as to whether interest will be paid or not at a particular rate cannot spellbound the Income-tax department to act according to their whims and caprices. With this considered view, we are unable to accept the contention of Dr. Pal and reject the same.
(2.) The aforesaid order was subsequently substituted in a miscellaneous application by an order dated 21st September, 2007 which is as follows:- On hearing the rival submissions on the issue, in the peculiar set of facts and circumstances of the case, we had to agree that the petitioner-applicant had no option for the rate of interest decided by the State Government. Accordingly, Dr. Pal s contention is to be accepted and grounds No. IV to IX are to be allowed in favour of the assessee .
(3.) The question of law formulated at the time of admission of the appeal on 18th August, 2008 reads as follows:- (i) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in modifying an order passed by it after considering the crux of the issue involved under a miscellaneous application by a non speaking order, by simply stating that there had been a factual mistake. In passing the impugned order the Ld. Tribunal exceeded its jurisdiction under Section 254(2) of the Income Tax Act, 1961 ?;