A.R. Tiwari, J.

1. At the instance of the applicant (Commissioner of Income Tax, Bhopal), the Tribunal has stated the case and referred the undernoted question, labelled as of law, arising out of the order dated October 15, 1993, passed by the Tribunal in I.T.A. No. 403/Ind. of 1989, for the assessment year 1984-85 on an application under Section 256(1) of the Income Tax Act, 1961 (for short "the Act"), and registered as R. A. No. 2/Ind. of 1994 on January 11, 1995, for our opinion :

" Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Commissioner of Income Tax had no jurisdiction to revise the assessment order dated December 12, 1986, because the same, after rectification, stood merged in the order of the Commissioner of Income Tax (Appeals) "

2. Briefly stated, the facts of the case are that the assessment was originally completed on 12th December, 1986, under Section 143(3) of the Act. In that assessment deduction under Section 80HHC of the Act was allowed at Rs. 2,58,553. A proceeding under Section 154 of the Act was initiated. In this proceeding, the deduction under the same provision to the extent of Rs. 2,48,651 was allowed on 20th February, 1987. The Commissioner of Income Tax revised the order dated December 12, 1986, under Section 265 of the Act and set aside the order with direction to the Assessing Officer to reframe the assessment in accordance with law. The aforesaid order passed under Section 263 of the Act was challenged in appeal before the Tribunal. It was pointed out that an appeal against the original assessment dated December 12, 1986, was filed before the Commissioner of Income Tax (Appeals) and in that appeal the assessee had disputed the quantum of deduction allowed under Section 80HHC. In the meantime, the assessee had moved an application under Section 154 of the Act which was allowed by the Assessing Officer on February 20, 1987. The appeal presented by the assessee against the order dated December 12, 1986, was allowed to be withdrawn as infructuous. The Commissioner of Income Tax had passed the order on March 20, 1989, under Section 263 of the Act for the assessment year 1984-85. The appeal was allowed. Thereafter, the Department filed the application under Section 256(1) of the Act. On this application, the Tribunal stated the case and referred the aforesaid question.

3. We have heard Shri A.M. Mathur, learned senior counsel with Shri Vivek Sharan, for the applicant/Department, and Shri S.S. Samvatsar, learned counsel for the non-applicant/assessee.

4. We noticed that the Tribunal allowed the appeal of the assessee, directed against the order dated March 20, 1989, passed by the Commissioner of Income Tax under Section 263 of the Act in the undernoted terms :

" In view of these facts and circumstances, it is contended by learned counsel for the assessee that the assessment order coupled with the order passed under Section 154 by the Assessing Officer had merged in the order of the Commissioner of Income Tax (Appeals) and as such no order of the Assessing Officer was available for revision under Section 263 to the Commissioner of Income Tax, who revised the order subsequent to the order of the Commissioner of Income Tax (Appeals) on March 20,1989. In support, reliance has been placed upon Jeewanlal (1929) Ltd. v. Addl CIT : [1977]108ITR407(Cal) . The facts of that case are in pari materia with the case in hand. It has been held in that case that under the circumstances, the assessment order had merged in the appeal order of the Commissioner of Income Tax (Appeals) and, therefore, the Commissioner of Income Tax has no jurisdiction to rectify the order,"

5. The contention of Shri S.S. Samvatsar is that in exercise of the powers under Section 263 of the Act, the order dated December 12, 1986, was revised, whereas that order had ceased to be in existence because of its rectification under Section 154 of the Act on February 20, 1987. He, therefore, contended that on March 20, 1989, the initial order passed on December 12, 1986, was not in existence and as such there was no question of revising a non-existent order.

6. In Smt S.R. Venkataraman v. Union of India : (1979)ILLJ25SC , it is held that any order based on non-existent facts is illegal and has to be set aside. Such orders can be denounced as infected with abuse of power. The Tribunal thus did the right thing in incinerating such abuse. There was no justification in not reflecting the correct position in the statement of the case and in referring the question in a light-hearted manner.

7. Shri Samvatsar made a categorical statement before us that the initial order dated 12th December, 1986, was revised under Section 263 of the Act on March 20, 1989, whereas the aforesaid order had vanished on 20th February, 1987, in proceedings initiated under Section 154 of the Act.

8. In view of the aforesaid factual matrix, counsel for the applicant was unable to satisfy us as to how the Tribunal was not right to pass the order as it did. No authority can revise a thing which is not in existence. There is no dispute to this proposition of law.

9. In the circumstances, we are satisfied that the tribunal has committed no error of law and rightly held that the Commissioner of Income Tax had lacked jurisdiction to revise the order which was not available for revision on the relevant date.

10. In the result, we answer the question in the affirmative, i.e., in favour of the assessee and against the Department.

11. The aforesaid miscellaneous civil case thus stands disposed of with no order as to costs. Counsel fee for each side is, however, fixed at Rs. 750, if certified. Transmit a copy of this order to the Tribunal.