IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI `J' BENCH
MUMBAI BENCHES, MUMBAI
BEFORE SHRI P. M. JAGTAP, AM & SHRI VIJAY PAL RAO, JM
MISCELLANEOUS APPLICATION No. 247/Mum/2013
(Arising from ITA No. 6407/Mum/2008 A. Y - 2003-04)
Shri Jayant D. Sanghvi, Vs The Income Tax Officer,
th
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
ORDER
PER VIJAY PAL RAO, JM
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assessee was dismissed as withdrawn.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
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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:
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Shri Jayant D. Sanghvi
Jayant D. Sanghvi
Sanghvi Villa, 13th Cross Road,
Juhu Scheme,
Mumbai-400049
23.4.2010
The Registrar,
The Income Tax Appellate Tribunal,
Mumbai
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,
Sd/-
(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
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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
dismissed.
Order pronounced in the open Court on this 14th day of November
2013
Sd/- Sd/-
(P. M. JAGTAP) (VIJAY PAL RAO)
Accountant Member Judicial Member
Place: Mumbai: Dated: 14th November 2013
Subodh.
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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