2000 (6) TMI 126 - AT - Income Tax

Summary

Issues:
1. Maintainability of a second Misc. Petition filed by the Revenue.
2. Interpretation of Rule 2(ii)(b) of the ITAT Rules, 1963.
3. Authority of the departmental representative to file a Misc. Petition.
4. Applicability of Section 254(2) of the Income Tax Act, 1961.
5. Power of the Tribunal to review its own order.

Analysis:

1. Maintainability of a second Misc. Petition: The Tribunal dismissed the second Misc. Petition filed by the Revenue on the grounds that it was not maintainable as it was filed by the departmental representative and not by the Assessing Officer, as required by Section 254(2) of the Income Tax Act. The Tribunal held that only the Assessing Officer could file the Misc. Petition, and the department was advised to file the petition through the competent authority within the prescribed time limit.

2. Interpretation of Rule 2(ii)(b) of ITAT Rules, 1963: The departmental representative argued that the Tribunal did not consider Rule 2(ii)(b) of the ITAT Rules, 1963, and cited decisions of the Madras High Court to support the contention that the Commissioner of Income Tax and the Assessing Officer both have the authority to file reference applications or Misc. Petitions. However, the Tribunal emphasized that only a person appointed by the Central Government as an authorized representative can act on behalf of the department before the Tribunal.

3. Authority of the departmental representative: The departmental representative claimed the right to file the Misc. Petition based on the authority granted by Section 116 of the Income Tax Act, 1961, which designates the departmental representative as an income tax authority. The representative argued that the Tribunal's decision did not consider the provisions of Rule 2(ii)(b) of the ITAT Rules, 1963, and was contrary to previous judicial decisions.

4. Applicability of Section 254(2) of the Income Tax Act, 1961: Section 254(2) empowers the Appellate Tribunal to rectify any mistake apparent from the record within four years from the date of the order. The Tribunal clarified that only the Assessing Officer, as specified in the Act, could bring such mistakes to the notice of the Tribunal. The departmental representative, although an income tax authority, could not be considered an Assessing Officer for the purpose of filing a Misc. Petition.

5. Power of the Tribunal to review its own order: The Tribunal reiterated that it had already determined in a previous order that the departmental representative did not have the authority to file a Misc. Petition. Therefore, the second Misc. Petition was dismissed on the grounds of maintainability and lack of authority of the departmental representative to file such a petition.

In conclusion, the Tribunal upheld its decision to dismiss the second Misc. Petition filed by the Revenue, emphasizing the necessity for the petition to be filed by the Assessing Officer as per the provisions of the Income Tax Act and the ITAT Rules.