ORDER
Gopal Chowdhury, J.M.
1. The present miscellaneous application has been filed by Dileep Shivpuri, Senior Authorised Representative of IT Department appearing before the Tribunal with a prayer to withdraw the order passed by the Tribunal and reconsider the submission made in the miscellaneous application. The following fact has been mentioned in the application that the assessee alongwith two other group concerns were searched by the Department on 22nd March, 1988. All the three concerns made disclosure under s. 132(4) of the Act. While filing return of income, the present assessee requested the AO to treat the excess advance tax paid by other two concerns against the self-assessment tax payable by the assessee under s. 140A of the Act. The assessee also filed no-objection certificate from those two concerns. However, the request was not accepted by the AO.
2. The assessee moved before the first appellate authority and CIT(A) held that the AO should have adjusted the amount of refunds in the case of the assessee-firm which should be treated as payment of tax under s. 140A of the Act for the purpose of charging interest. Against that order the Revenue filed the present appeal before the Tribunal and the Tribunal by the present order upheld the finding recorded by the CIT(A). Now in the present application for rectification, learned Departmental Representative has mainly submitted that the argument of the junior Departmental Representative who appeared before the Tribunal namely; S.S. Panwar was not properly considered by the Tribunal. The Tribunal has passed the order on a misconception of fact. Therefore, the order passed by the Tribunal cannot be sustained. Hence, he made a prayer to recall the said order for deciding afresh.
3. The learned Departmental Representative in support of the application has reiterated the submissions already made in the application. On the other hand, learned counsel on behalf of the assessee has submitted that by filing the present application learned Departmental Representative has requested the Tribunal to review its earlier order which is not permitted under law. Further, it was submitted that the Department has accepted the order passed by the Tribunal and no reference under s. 256(1) has been filed by the CIT. Further it was submitted that under s. 254(2) of IT Act either the assessee or the AO is empowered to file an application for rectification before the Tribunal. In the present case, the application has been filed by the Departmental Representative and not by the AO. Accordingly, it is not maintainable.
4. We have heard both the sides and perused the materials on record. Before dealing with the case on merit, we would like to decide the maintainability of the present application first. There is no dispute that the present application under s. 254(2) of the Act has been filed by senior Authorised Representative of the IT Department. The relevant provision of s. 254(2) of the Act is as follows:
“254(2) 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-s. (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the AO :
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(3) The Tribunal shall send a copy of any orders passed under this section to the assessee and to the CIT”.
From perusal of the aforesaid provision, we find that the statute has given specific power for filing application under s. 254(2) of the Act either to the assessee or to the AO. Under s. 254(3) of the Act, a copy of the order passed under s. 254 of the Act should be sent to the CIT. Further we find that under s. 256(1) of the Act an application for reference can be filed before the Tribunal by the assessee or the CIT within a prescribed time. Therefore, on consideration of the aforesaid provisions, we find that the Parliament has prescribed different authorities for filing applications under s. 254(2) and 256(1) of the Act on behalf of the Revenue. It is an admitted fact that we have been receiving reference applications filed by the CIT, under s. 256(1) of the Act. In the present application under s. 254(2) of the Act, it has not been mentioned even that the AO has instructed the learned Departmental Representative to file the present application. Therefore, in our opinion, the preliminary objection raised on behalf of the assessee is justified. Accordingly, we hold that the present application filed under s. 254(2) of the Act by the senior Departmental Representative is not maintainable. Hence it is rejected. Since the application itself is not maintainable, we are not inclined to go into the merit of the case. Let a copy of the order be sent to the CIT under s. 254(3) of the Act.
5. In the result, the miscellaneous application is rejected.