2007 (5) TMI 268 - AT - Income Tax

Summary

Issues Involved:
1. Recall of Tribunal Order under Section 254(2)
2. Adjournment Request due to Bar Association Resolution
3. Maintainability of Rectification Application under Section 254(2)

Issue-wise Detailed Analysis:

1. Recall of Tribunal Order under Section 254(2):
The assessee sought to recall the Tribunal's order under section 254(2) in M.A. No. 48/Jab/2005, dated June 19, 2006. The grounds for recall included the assertion that the miscellaneous application was fixed for hearing on May 5, 2006, attended by the assessee but not heard by the Tribunal, with an order subsequently passed on June 15, 2005. The Departmental representative opposed the application, citing the Orissa High Court's decision in CIT v. ITAT [1992] 196 ITR 838, which stated that an order rejecting an application for rectification under section 254(2) is not an order passed under section 254(1) and thus cannot be rectified under section 254(2).

2. Adjournment Request due to Bar Association Resolution:
The assessee's counsel requested an adjournment based on a resolution passed by the Tax Bar Association, Jabalpur, to boycott the Bench. The Departmental representative opposed this request, referencing the Supreme Court's condemnation of such actions by Bar members in several cases, including Mahabir Prasad Singh v. Jacks Aviation P. Ltd. [1998] RLR SCC 644; AIR 1999 SC 287. The Tribunal emphasized that judicial functions should not be obstructed by strikes or boycotts and referenced multiple Supreme Court decisions reinforcing this stance. The Tribunal held that adjournments cannot be granted based on such actions and proceeded to decide the application without granting the adjournment.

3. Maintainability of Rectification Application under Section 254(2):
The Tribunal considered whether the application for rectification of an order passed under section 254(2) was maintainable. The Orissa High Court in CIT v. ITAT [1992] 196 ITR 838 held that section 254(2) allows for the rectification of mistakes apparent from the record in orders passed under section 254(1), but not in orders passed under section 254(2). The Madhya Pradesh High Court in CIT v. G.M. Mittal Stainless Steel Ltd. [2004] 271 ITR 219 supported taking guidance from other High Courts' decisions in the absence of jurisdictional High Court or Supreme Court decisions. Consequently, the Tribunal concluded that there is no provision in the Income-tax Act to rectify an order of rectification passed under section 254(2), rendering the application not maintainable under the law.

Conclusion:
The Tribunal rejected the assessee's application for adjournment based on the Bar Association's resolution and held that the application for rectification under section 254(2) was not maintainable, thus dismissing the application. The order was pronounced at the hearing on May 25, 2007.