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Shri Jayant D. Sanghvi, Sanghvi Villa, 13th Cross Road, Juhu Scheme, Mumbai-400049 Vs The Income Tax Officer, Ward 8(3)(1), Aayakar Bhavan,Mumbai-400020
November, 21st 2013
                    MUMBAI `J' BENCH
                MUMBAI BENCHES, MUMBAI
         (Arising from ITA No. 6407/Mum/2008 A. Y - 2003-04)
Shri Jayant D. Sanghvi,       Vs The Income Tax Officer,
Sanghvi Villa, 13 Cross Road,    Ward 8(3)(1), Aayakar Bhavan, M.
Juhu Scheme,                     K. Road,
Mumbai-400049                    Mumbai-400020
            (Applicant)                    (Respondent)
                  PAN No.        AJXPS7692G
        Assessee by              Shri S. C. Tiwari
        Revenue by               Shri Sanjeev Jain
        Date of hearing          1st November 2013
        Date of pronouncement    14th November 2013


     By way of this Miscellaneous Application the assessee is seeking

recall of order dated 7.5.2010 of this Tribunal whereby the appeal of the

assessee was dismissed as withdrawn.

2.   We have heard the Ld. A.R as well as Ld. D.R and considered the

relevant material on record. The Ld. A.R of the assessee has submitted

that the appeal in question was filed by the assessee against the order of

CIT passed u/s 263. In the mean time the Assessing Officer had already

passed assessment in pursuant to the revision order u/s 263 and the

assessee preferred an appeal which was pending before the CIT(A). The

Ld. Counsel has pleaded that the assessee was advised by his counsel

that in view of the Assessing Officer has already giving effect to the

impugned order passed u/s 263 it was better to agitate the matter in the
                                                                  MA 247/M/2013
                                                           Shri Jayant D. Sanghvi

proceedings against the fresh assessment order passed u/s 143 r.w.s 253

rather than pursuant this matter against the order passed u/s 263 itself.

Accordingly, the assessee agreed with the advice of the Authorised

Representative and requested for withdrawal of appeal. The Ld. A.R has

submitted that the assessee has now learnt that he was given wrong

advice and the fact of matter is that on withdrawal of appeal not only

order of Commissioner passed u/s 263 became final but it also as the

effect of finality to the consequential order passed by the A.O. Thus, the

Ld. A.R has submitted that the assessee should not suffer from the errors

and mistake committed by its Counsel and the order dated 7.5.2010 may

be recalled. The Ld. A.R has relied upon the decision of Hon'ble Supreme

Court dated 9.6.2010 in case of Improvement Trust, Ludhiana Vs Ujagar

Singh & Ors. in Civil Appeal No. 2395/2008 and submitted that the Hon'ble

Supreme Court has held that after all Justice can be done only when the

matter is fought on merits and in accordance with the law rather than to

dispose of it on such technicalities and that too at threshold. On the other

hand, the Ld. D.R has submitted that when the assessee himself has

withdrawn the appeal by filing letter dated 23.4.2010 which was accepted

by the Tribunal then there is no prima facie mistake or error in the order

of the Tribunal to be rectified u/s 254(2).

3.    Having considered the rival submissions and carefully perusal of

record we note that the assessee filed a letter dated 23.4.2010 seeking

withdrawal of appeal in ITA No. 6407/2008. The contents of the letter are

reproduced for the sake of convenience as under:
                                                                   MA 247/M/2013
                                                            Shri Jayant D. Sanghvi

                                              Jayant D. Sanghvi
                                              Sanghvi Villa, 13th Cross Road,
                                             Juhu Scheme,
The Registrar,
The Income Tax Appellate Tribunal,

Dear Sir,
            Sub: Assessment Year 2003-04
                 ITA No. 6407/M/08
       The aforesaid appeal is fixed for hearing today before Hon'ble I.T.A.T
`J' Bench.

2.    I desire to withdraw the aforesaid appeal and, therefore, crave
indulgence of the Hon'ble Members to allow me to withdraw the appeal.

3.     This submission may please be placed before the Hon'ble Members
for favour of order.

      Thanking You,
                                                       Yours Faithfully,
                                                     (Jayant D. Sanghvi)

4.    The above request of the assessee was allowed by the Tribunal and

accordingly the order dated 7.5.2010 was passed by the Tribunal whereby

the appeal of the assessee was dismissed as withdrawn. It is clear from

the record that there is no apparent error or mistake in the impugned

order of the Tribunal by accepting the request of the assessee for

withdrawal of the appeal. Even there is nothing in the request letter to

indicate that the assessee has withdrawn the appeal because of the

advice of his Counsel and for perusing the matter arising from the fresh

assessment order. The Jurisdiction of the Tribunal u/s 254(2) is very

limited and circumscribe. For exercising the jurisdiction u/s 254(2) it is

mandatory condition that such mistake should vide apparent, manifest
                                                                                   MA 247/M/2013
                                                                            Shri Jayant D. Sanghvi

and patent and not something which could be involved serious question of

fact or law. It is settled proposition that section 254(2) does not confer

power on the Tribunal to review its earlier order. When the Tribunal has

proceeded on the request of the assessee and the assessee has also failed

to point out any apparent mistake in the impugned order then in the garb

of rectification of mistake u/s 254(2) it is not permitted to the assessee to

change stand conscious taken. The decision relied upon by the Ld. A.R is

on the point of condonation of delay therefore the same is not applicable

in the facts of this case. It is pertinent to note that the assessee has filed

the present application after lapse of a considerable period of about three

years. Therefore, in the facts and circumstances of the case the

Miscellaneous Application of the assessee does not inspire the confidence.

Accordingly, we do not find any merit in the Miscellaneous Application.

5.      In the result, the Miscellaneous Application filed by the assessee is


Order pronounced in the open Court on this 14th day of November

                  Sd/-                                                      Sd/-
             (P. M. JAGTAP)                                       (VIJAY PAL RAO)
            Accountant Member                                       Judicial Member
Place: Mumbai: Dated: 14th November 2013
Copy forwarded to:
1       Appellant
2       Respondent
3       CIT
4       CIT(A)
5       DR
                                              /TRUE COPY/
                                                BY ORDER

                                           Dy /AR, ITAT, Mumbai
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