Mohammad Rafiq, J. - (1.) This appeal is directed against judgment of learned Single Judge dated 08.05.2009 by which writ petition filed by respondent Apex Metchem (P) Limited (hereinafter shall be referred to as 'the respondent assessee') against order of Income Tax Appellate Tribunal, Jaipur Bench, Jaipur (for short, 'ITAT, Jaipur') dated 31.03.2008 passed in Misc. Appl.8/JP/2008 in exercise of powers under Section 254(2) of the Income Tax Act, 1961 (for short, the Act of 1961') was allowed and consequential order dated 20.08.2008 of President ITAT for transferring appeals (IT Sections No.105/JP/04 and 35/JP/05) to Mumbai Bench, was quashed and set aside. The ITAT vide its order dated 31.03.2008 had recalled its earlier order dated 29.03.2006 and further directed both the appeals to be heard by ITAT Mumbai Bench, Mumbai, in terms of order dated 04.04.2005 of the President ITAT, Mumbai. The ITAT suo motu section notice under Section 254(2) of the Act vide order dated 15.12.2007 to the respondent assessee for rectification on the premise that respondent assessee while questioning the substantive assesseement under Section 158 BD of the Act filed by them at Jaipur Bench did not disclose this material information to the Bench that in between on their application for consolidation of appeals for hearing, the President of ITAT allowed the consolidation of appeals with those filed by Mayur M. Thakkar questioning protective assesseement under Section 158 BC against them at Mumbai Bench to be heard at Mumbai Bench. The Tribunal held that the order of the President of ITAT for consolidation of appeals for hearing at Mumbai Bench has remained to be gone through by Jaipur Bench of the Tribunal while proceeding for hearing of the appeals by Jaipur Bench, which has resulted into a mistake apparent from the record as otherwise, appeals pending at Jaipur Bench could not have been heard and decided by Jaipur Bench.
(2.) Perusal of impugned judgment of Single Bench reveals that the learned Single Judge has allowed the writ petition on the premise that the order of the President dated 04.04.2005 passed under Rule 4 of the Income Tax Appellate Tribunal Rules, 1963 sought to consolidate the appeal filed by the respondent assessee with an application for intervention against order of Commissioner of Income-Tax (Appeals), Mumbai, dated 30.04.2003 with appeal of Mayur M. Thakkar against same order. There was no direction for consolidation of any of those appeals with that of the appeal filed by respondent assessee at Jaipur Bench of the ITAT against order of the CIT (Appeals) III, Jaipur, dated 14.12.2004. It was, therefore, held that there was no mistake apparent from the record.
(3.) Shri Anuroop Singh, learned counsel for appellants, has argued that the writ petition was not maintainable for questioning validity of the order passed by the ITAT under Section 254(2) of the Act, which inter-alia provides that the Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the assessing officer. It is settled law that in making the rectification, the ITAT can completely recall its order. Reliance in this behalf is made to judgment of Madras High court in Lakshmi Vilas Bank Limited v. Income Tax Appellate Tribunal and others - (2010) 329 ITR 564 (Mad).;