A.K.Kmathur, J. - (1.) THIS writ petition is directed against the order (Annexure 5) passed by the Tribunal, Jaipur Bench, Jaipur dt. 15 Nov., 1985.
(2.) THE respondent No. 2 the assessee, is a contractor. He received total payments of Rs. 7,72,226 and Rs. 9,70,000 and disclosed net profit of Rs. 68,582 and Rs. 97,010 for two years, i.e., 1980-81 and 1981-82, respectively. Since the respondent No. 2 did not maintain proper books of account and as such profits could not be accepted, the ITO invoked provisions of s. 145 of the IT Act, 1961 (hereinafter referred to as `the Act'). He applied net profit rate of 12.5 per cent in 1980-81 and 12 per cent in 1981-82 and passed the orders of assessment accordingly. THE respondent No. 2 being aggrieved against these orders preferred an appeal before the AAC who by his order dt. 4th Feb., 1984 after considering the arguments held that rate of 12 per cent in both the years is reasonable. Aggrieved against this order, the respondent No. 2 preferred an appeal before the Tribunal. THE

Tribunal vide its order dt. 28th June, 1985 allowed appeal No. 250 and dismissed appeal No. 251

254(2) of the Act for rectification of mistake. THE application came up for consideration before the Bench and the Bench allowed the application and recalled its earlier order and proceeded with the hearing of the case afresh. It is this order which has been sought to be challenged on the ground that the respondent No.1 had no jurisdiction for proceeding to hear this matter afresh after they have disposed of the appeals. In somewhat similar circumstances a writ petition was filed by the Department and it has been held in ITO vs. Tribunal (S.B. Civil Writ Petition No. 233 of 1980, decided on 7th May 1986) since reported in (1987)65 CTR (Raj) 8, that under sub-s. (2) of s. 254 of the Act for rectification of mistake the whole order cannot be reviewed and recalled. In view of the order dt. 7th May 1986, the order Annexure 5, dt. 15th Nov., 1985 is set aside and case is remanded back to the Tribunal to decide the rectification application in accordance with law. The writ petition is disposed of as indicated above.;