2011 (1) TMI 226 - AT - Income Tax

Rectification of mistakes - It is true that sub-section (2) of section 254 can be invoked only in a situation if there is a mistake in the order passed by the Tribunal under sub-section (1) of section 254 - An order rejecting an application for rectification u/s 254(2) cannot be rectified u/s 254(2) - Indisposition of the counsel constitute reasonable cause for nonappearance on the fixed date of hearing - This ground cannot constitute any cause to recall of the said order as what was done in that order was to bring the earlier order in conformity with the decision of the Hon ble Apex Court rendered subsequently - The miscellaneous application filed by the assessee which is rejected and dismissed

Summary

Issues:
Recall of tribunal's order, jurisdictional concerns, principles of natural justice, opportunity of hearing, rectification application validity, counsel's non-appearance justification.

Recall of Tribunal's Order:
The appellant sought recall of the order passed by the Tribunal in a miscellaneous application. The Tribunal had disposed of the Revenue's application claiming a mistake in the order, stating that the order had merged with the High Court's decision. However, subsequent to the Tribunal's orders, the Supreme Court's decision made the High Court's decision irrelevant. The Tribunal rectified its previous order, withdrawing it to align with the Supreme Court's ruling.

Jurisdictional Concerns:
The Revenue had submitted an application contending that the order merged with the Punjab & Haryana High Court's decision, which was challenged due to jurisdictional issues. The Tribunal, post the Supreme Court's decision, noted that the High Court's decision was no longer valid law, leading to the rectification of the previous order.

Principles of Natural Justice and Opportunity of Hearing:
The appellant argued that the Tribunal's order was passed without affording a reasonable opportunity of hearing and violated principles of natural justice. The appellant cited the counsel's indisposition as a valid reason for adjournment, referring to a High Court decision to support the claim.

Rectification Application Validity:
The appellant contended that the order passed by the Tribunal under section 254(2) was invalid as it was against the earlier order passed under the same section, and the rectification was not based on the issues raised by either party. The Tribunal, citing legal precedents, rejected the appellant's application as it was not maintainable.

Counsel's Non-Appearance Justification:
The appellant argued that the counsel's non-appearance due to indisposition should be a valid reason for setting aside the Tribunal's order. However, the Tribunal noted a lack of cooperation from the appellant's side and rejected this ground for recall.

In conclusion, the Tribunal rejected the appellant's miscellaneous application, stating that the relief sought was legally untenable. The Tribunal rectified its previous order to align with the Supreme Court's decision and dismissed the appellant's application based on legal precedents and lack of merit in the arguments presented.