2004 (5) TMI 15 - HC - Income Tax

Recall of order by tribunal - appeal to HC - The assessee has filed this appeal under section 260A against the orders of Tribunal, dated October 29,1999, disposing of the appeal filed by the assessee and dated August 8, 2002, rejecting its application under section 254(2) for recall of its order dated October 29, 1999. - application has been filed after about two years and that too when the constitution of the Bench had undergone a change. Thus, to decide the claim made in the application u/s 254(2), the successor Members of the Bench could only refer to the material on record to see as to whether such contentions had been raised or not. Admittedly, no such material is available. - In this view of the matter, no fault can be found with the finding of the Tribunal that there was no mistake apparent from the record warranting action u/s 254(2) held that no substantial question of law arises out of the order of the Tribunal dated August 8, 2002, for consideration by this court.

Summary

Issues Involved:
1. Maintainability of a consolidated appeal against two orders of the Tribunal.
2. Withdrawal of the earlier appeal without liberty to file a fresh appeal.
3. Application under section 254(2) of the Income-tax Act, 1961.
4. Delay in refiling the appeal.

Issue-wise Detailed Analysis:

1. Maintainability of a consolidated appeal against two orders of the Tribunal:
The court noted doubts about the maintainability of a consolidated appeal against two orders of the Tribunal. However, given the factual position in this case, it was unnecessary to delve into this question. The assessee had previously filed an appeal under section 260A of the Income-tax Act, 1961, against the Tribunal's order dated October 29, 1999. This appeal was withdrawn to pursue an application under section 254(2) of the Act, and no liberty was sought or granted to file a fresh appeal against the same order.

2. Withdrawal of the earlier appeal without liberty to file a fresh appeal:
The court emphasized that the assessee had withdrawn its earlier appeal to pursue the application under section 254(2) without seeking or being granted liberty to file a fresh appeal. The reliance on the Supreme Court judgment in A.P. State Financial Corporation v. C.M. Ashok Raju was found inapplicable. The Supreme Court had entertained special leave petitions for the second time due to liberty granted to approach the High Court, which was not the case here. Sub-rules (3) and (4) of Order 23, rule 1, Code of Civil Procedure, were cited to clarify that a fresh suit or appeal is precluded if an earlier suit or appeal was withdrawn without permission.

3. Application under section 254(2) of the Income-tax Act, 1961:
The Tribunal dismissed the assessee's application under section 254(2) of the Act, which sought to recall the order dated October 29, 1999, on the grounds that certain submissions and arguments were not considered. The Tribunal held that section 254(2) does not authorize it to review or recall its order but only to rectify mistakes apparent from the record. The Tribunal found no evidence that the arguments were raised but not considered. The court upheld this finding, noting that the application was filed almost two years after the original order, and no material on record supported the contention that such arguments were raised initially.

4. Delay in refiling the appeal:
The appeal was refiled with a delay of 77 days. An application for condonation of this delay was also filed. However, the court, finding no merit in the appeal, deemed it unnecessary to issue notice to the respondents merely to consider the application for condonation of delay.

Conclusion:
The court concluded that the appellant could not file a second appeal against the Tribunal's order dated October 29, 1999, as no liberty was granted when the earlier appeal was withdrawn. The present appeal was treated solely as an appeal against the Tribunal's order dated August 8, 2002, dismissing the application under section 254(2) of the Act. The court found no substantial question of law arising from the Tribunal's order and dismissed the appeal in limine, without costs.