Law:

Section:

Section 254 of the Income-tax Act, 1961, read with article 226 of the Constitution of India - Appellate Tribunal - Power of - Whether, where order under section 254(2) is made by Tribunal on an application filed seeking rectification or annulment of order made in appeal, order impugned must be treated as an order made in appeal and once it is held that order impugned came to be made in an appeal, section 260A is attracted and an appeal will lie to court from such order - Held, yes - Whether as an appeal lies under section 260A against an order under section 254(2), writ petition against order under section 254(2) is liable to be rejected on ground that petitioner has an alternative remedy provided under Act - Held, yes FACTS An order was made by the Tribunal resulting in an application filed by the appellant under section 254(2) seeking rectification of the order. The said application was allowed and earlier order made came to be rectified. On writ, the revenue challenged the Tribunal's order under section 254(2). The respondent contended that since the petitioner had a right of appeal provided under section 260A against the impugned order, the instant petition was liable to be rejected by the Court on the ground that the petitioner had an alternative remedy provided under the Act. HELD The substance of the order impugned in the instant petition was rectification of the earlier order made in appeal. This was clear from the prayer made in the application filed under sub-section (2) of section 254 and also the substance of the order made. Whether the Tribunal had the jurisdiction or the power to rectify the earlier order or not was a matter which was required to be considered on merits. However, since the impugned order was made by the Tribunal on an application filed seeking rectification or annulment of the order made in the appeal, the order impugned must be treated as an order made in the appeal. Once it was held that the order impugned came to be made in an appeal, section 260A was attracted and an appeal would lie to the High Court. It is necessary to point out that if two views are possible on an interpretation of the provision which provides for a right…

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