2008 (7) TMI 356 - HC - Income Tax

The original grievance of the appellant that the order dated December 12 2002 which had been passed by the Tribunal without considering all the material on record. It is another matter that the Tribunal itself did not have power to recall the order and enter into a review. However we feel that it is a fit case for remand. Consequently the order dated December 12 2002 is set aside and the matter is remanded to the Tribunal to hear the parties and arrive at a decision afresh.

Summary

Issues:
Appeal against Tribunal's order dated December 12, 2002 for assessment year 1992-93; Application under section 254(2) filed by appellant; Tribunal's order recalling impugned order; Revenue's appeals against orders dated March 16, 2004 and June 11, 2004; Court's view on Tribunal's powers under section 254(2); Revival of present appeal; Tribunal's order set aside; Matter remanded for fresh decision.

The appellant filed an appeal against the Tribunal's common order dated December 12, 2002, for assessment year 1992-93. Simultaneously, the appellant also filed an application under section 254(2) of the Income-tax Act, 1961, claiming that the material on record was not considered by the Tribunal. The Tribunal accepted the contentions raised by the appellant and recalled the impugned order dated December 12, 2002. Subsequently, the Tribunal reheard the appeals and passed an order dated June 11, 2004, in favor of the appellant.

The Revenue, aggrieved by the orders dated March 16, 2004, and June 11, 2004, filed two appeals (I. T. A. No. 491 of 2004 and 662 of 2004) against these orders. The court, in its order dated November 16, 2004, set aside the orders of recall passed by the Tribunal, stating that the Tribunal had exceeded its powers under section 254(2) and the proceedings amounted to a virtual review, which was impermissible in law. Consequently, the present appeal, initially deemed infructuous due to the Tribunal's order dated March 16, 2004, was revived by an order dated June 11, 2004.

The present appeal was considered by the court after the above proceedings. The court acknowledged the appellant's grievance that the Tribunal's order dated December 12, 2002, was passed without considering all the material on record. While noting that the Tribunal did not have the power to recall the order and conduct a review, the court deemed it appropriate for the matter to be remanded. Accordingly, the court set aside the order dated December 12, 2002, and remanded the matter to the Tribunal for a fresh decision.

In conclusion, the court disposed of the appeal by setting aside the original order and remanding the matter for a fresh decision by the Tribunal.