ORDER
N. Vijayakumaran, J.M.
1. The assessee has filed this miscellaneous petition against the order dt. 13th Oct., 2003 of this Tribunal in ITA No. 1034/Mds/1998 for the asst, yr. 1993-94 [reported as M. Ashok Kumar Porwal v. Asstt. CIT (2005) 94 TTJ (Chennai) 129–Ed.]. The grievance of the petitioner is that the Tribunal while deciding the appeal omitted to consider the decision of the Hon’ble Kerala High Court in the case of Paul Mathews & Sons v. CTT (2003) 263 ITR 101 (Ker) which was cited before the Tribunal while hearing the appeal. The learned representative for the petitioner, Shri Banusekar submitted before us that this is an error/mistake apparent on record which requires rectification under Section 254(2) of the IT Act, 1961, as held by the Delhi Bench decision of the Tribunal in the case of Finquick Finance (P) Ltd. v. Dy. CIT (2003) 81 TTJ (Del) 319 : (2003) 87 ITD 323 (Del) that where the decision cited before the Tribunal was not considered at all, there is a mistake apparent on the record rectifiable under Section 254(2) of the Act. The learned representative of the petitioner further invited our attention to the order passed by the CIT under Section 263 of the Act, which was challenged before the Tribunal in appeal. He particularly invited our attention to the last speaking portion of the said order of the CIT, wherein the AO was directed to modify the assessment by including the amount of Rs. 81,92,659. The learned representative for the petitioner, therefore, contended that by virtue of this direction the AO cannot decide the issue on merits as he has simply to follow the direction given by the CIT in the revisionary order. This is a prejudice caused to the assessee which requires rectification. The learned representative further contended that the paper book filed by the assessee at the time of hearing of the appeal contained some relevant extracts of some decisions of Hon’ble High Courts and the Tribunal, which appear at pp. 55 to 68 of the paper book, which were not considered by the Tribunal while deciding the appeal filed against the order of the CIT passed under Section 263 of the Act. On the other hand, the learned Departmental Representative relied on the order of the Tribunal.
2. We have considered the rival submissions in the light of the materials placed before us and the precedents relied upon. We have perused the entire case records. The submission of the assessee is that the decision of the Hon’ble Kerala High Court in the case of Paul Mathews & Sons v. CIT (supra) cited at the time of hearing of the appeal, was left out to be considered by the Tribunal by oversight. As held by the Delhi Bench of the Tribunal in the case of Finquick Finance (P) Ltd. v. Dy. CIT (supra), this is a mistake apparent on record which requires to be rectified under Section 254(2) of the Act. As rightly contended by the learned representative for the petitioner, the last portion of the order passed under Section 263 of the Act requires reconsideration. Therefore, in the interest of justice and for the reasons stated above we recall the order dt. 13th Oct., 2003 of the Tribunal passed in ITA No. 1034/Mds/1998.
3. In the result, the miscellaneous petition is allowed.