S.K. Kulshrestha, J.
1. On being directed under Section 256(2) of the IT Act (for short, “the Act”), by order dt. 24th April, 1996, passed in MCC No. 489 of 1993, the Tribunal has referred the following question for the opinion of this Court:
“Whether, on the facts and in the circumstances of the case, Tribunal was justified in law in giving another opinion on the same set of facts after recalling its own order dt. 7th Jan., 1990 under Section 254(2)?”
2. The respondent-assessee in response to notice under Section 139(2) of the Act, filed return for the asst. yr. 1969-70 after a delay of 32 months declaring a loss of Rs. 10 lakhs from business. During the course of assessment proceedings, the assessee, however, did not produce its books of accounts inspite of repeated notices as a result of which the assessment was completed under Section 144 of the Act. The assessee took the matter in appeal before the AAC and thereafter before the Tribunal. At both the stages, the matter was set aside/remanded to the AO. Again in the fourth round, the AAC determined the loss from business at Rs. 4,15,960 and the income from undisclosed sources at Rs. 5.00 lakhs. Dissatisfied with the order of the AAC, the assessee filed a second appeal before the Tribunal. The Tribunal, however, upheld the order of the AAC and dismissed the appeal by order dt. 7th Jan., 1990.
3. The assessee thereafter moved an application under Section 254 of the Act which was allowed by the Tribunal and the order dt. 7th Jan., 1990 was recalled. The Tribunal thereafter allowed the appeal by order dt. 4th Dec., 1992. It is in this context that the Revenue has sought the reference of the above quoted question for the opinion of this Court.
4. Learned senior counsel for the Revenue has submitted that power under Section 254 of the Act is limited and restricted to correction of errors apparent on the face of the record and not for deciding the matter over again on merits. In this connection, learned counsel has invited attention to the decision of this Court in CIT v. Smt. Gunvanti Bai, (1996) 219 ITR 632 (MP) and Prakash Chand Mehta v. CIT, (1996) 220 ITR 277 (MP). Reference has also been made to the decision of the Orissa High Court in CIT and Anr. v. ITAT and Anr., (1992) 196 ITR 640 (Ori).
5. All the cases cited by the learned counsel for the Revenue deal with the power of the Tribunal under Section 254 of the Act with regard to rectifying any mistake apparent from the record, In the present case, the question does not seek the opinion of this Court with regard to the scope of the power of the Tribunal under Section 254 of the Act and had it been so, there would not have been any difficulty in holding that the Tribunal did not have the power to set aside its order dt. 7th Jan., 1990 under Section 254(2). What is being posed for the opinion of this Court is whether the Tribunal could have given another opinion on the same set of facts. On due consideration of the material before us, we are of the opinion that since the earlier opinion of the Tribunal, on being set aside in exercise of the power under Section 254(2), cannot be said to be an opinion on record, there was no impediment for the Tribunal to form another opinion on the basis of the facts of the case and it was open to the Revenue to challenge the opinion/conclusions of the Tribunal. In this view of the matter, we answer the question against the Department and in favour of the Revenue (sic-assessee).