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TMI Blog2001 (2) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to this statement the admitted tax on the income-tax return was paid on 9-9-1998 and the same day the appeal was preferred before the Tribunal. He had also indicated in the said statement that the appeal is belated by 283 days and had filed an application seeking to condone the delay in filing of the appeal. 4. Mr. Sridhar contended that Supreme Court in CIT v. Filmistan Ltd. [1961] 42 ITR 163 had considered the term 'no appeal shall lie' with reference to the content of the provisions of the Income-tax Act, 1922 that stated that 'no appeal shall lie unless the tax has been paid'. He contended that the Apex Court had held that till such time the requirement of payment of tax has not been complied with, the appeal filed would not be enforceable by the appellant and it would be enforceable on payment only and in that event, the appellate authority could only consider the prayer to condone the delay in filing of the appeal. He pleaded that the ratio laid down by the Apex Court goes to indicate that an appeal filed without complying with the pre-condition of payment of tax is not a valid appeal. He contended that the appeal filed by the assessee would be effective only on paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the appellant had filed the appeal against the same block period assessment and had filed an application for stay of demand of tax as well. The Tribunal had granted interim stay and heard the appeal as well. He further pointed out that argument of the assessee that the provisions of section 249(4) of the Act applied to in regard to an appeal that lie before either the Deputy Commissioner of Income-tax (Appeals) or Commissioner of Income-tax (Appeals) did not find favour with the Tribunal. He pleaded that the Tribunal was placed with fact that though, Department had insisted that the assessee must pay tax based on the returned income but had not acted upon the return and that therefore, the argument of the Department appeal should only be admitted by the Tribunal on payment of admitted tax. In order on the appeal, the Tribunal had conceded to the argument of the Departmental Representative on the applicability of the provisions contained in section 249(4) of the Act that the appeal could be admitted by the Tribunal only on payment of admitted tax on the return of income filed by the assessee. The order of the Tribunal is dated 7-8-1998. Mr. Sridhar submitted that one cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not also consider the issue as to whether thereturn filed by the petitioner was a valid return of undisclosed income and the learned Assessing Officer has taken cognizance of the return or not. If the learned Assessing Officer had not taken cognizance of the return filed by the petitioner, then there is no case for the payment of taxes on the returned income. 4. A notice under section 158BC is claimed to have been served on the petitioner when he was imprisoned directing to file the return of undisclosed income and the time for filing of this return lapsed when the petitioner was in prison. After 8 months of imprisonment, when the petitioner was left at large, he had to respond to notices of so many authorities and also had an onerous task of putting together his life and did not have the time and the necessary details for computing undisclosed income, if any. Hence, the petitioner arrived at a possible figure of undisclosed income based on whatever he had in possession and by recollection and filed a return without giving year-wise break up and details of the undisclosed income. The learned Assessing Officer has stated in his order that the return was extremely belated and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t out the glaring mistakes in the order of the Tribunal compelling it to recall its earlier order. He submitted that the Tribunal after having recalled its order should examine the merits of the present petition along with the merits in the earlier appeal and this he submitted is the proper process of law. 5. Mr. Suryanarayana, the learned Departmental Representative referred to the decision of Madras High Court in Seshasayee Paper Boards Ltd. v. IAC [1986] 157 ITR 342 and submitted that an order of an appellate authority must be held as final unless by due process of law the said decision has been held otherwise by a superior court. He submitted that the order of the Tribunal dated 7-8-1998 in the case of the appellant has become final as far as the Tribunal is concerned. He pleaded that the present stay petition that is stated as based on an appeal filed on 9-9-1998 is in fact a supplementary appeal for the block assessment framed on the same assessee for the same years. He referred to the decision of the Bombay High Court in International General Electric Co. (India) Ltd v. CIT[1993] 202 ITR 960 and submitted that the court had ruled that for the same assessment year once an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R supplemented the argument of Mr. Suryanarayana and contended that the Act does not permit filing of a second appeal for the same set of years before any authority. He strongly supported the arguments advanced by Mr. Suryanarayana that the present appeal and the stay petition are supplementary appeal and that the Tribunal should not entertain such supplementary appeals. He finally pleaded that the Act does not empower any appellate authority to entertain supplementary appeal and therefore, the petition for stay, the appeal on which it is stated as arising and the miscellaneous application all deserve only to be dismissed. 6. The rival contentions have been given our very careful consideration. We would first deal with the miscellaneous petition on the order dated 7-8-1998. The first contention is that one other decision of the Tribunal passed before 15 months from the date of the order in question was not considered. It is not the contention of the appellant that the said decision was referred during the argument and was omitted to be considered. At best it could be said the order of the Tribunal in the instant case is per incuriam but that does not give raise to mistake from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has replied that it does not have the finances to deposit the tax and this was noted by the Tribunal as refusal to its proposal or offer and concluded that the non-payment of the tax due on a return of income filed by the assessee would not give the right of appeal to him. This is an opinion that is expressed by the Tribunal after affording the assessee an opportunity to make good the default. The expression of opinion may not be in line with the opinion expressed by one other bench but all the same it still remains an opinion. The expression of opinion of a bench is not open for review by another bench and the only course open is to make a reference to a larger bench. No bench in the guise of rectifying a mistake that is apparent from the record could review any order because, the Act does not permit or provide for a review or revision of an order of the Tribunal. The Act under section 263 permits revision of an order of Assessing Officer by his superior the Commissioner and had also placed certain conditions fulfilment of which alone that the Commissioner gets the power under the Act to revise the order of Assessing Officer. The Act has prescribed the right of appeal to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 272A. (2) The Commissioner may, if he objects to any order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, a Commissioner (Appeals) under section 154 or section 250, direct the Assessing Officer to appeal to the Appellate Tribunal against the order. (3) Every appeal under sub-section (1) or sub-section (2) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Commissioner, as the case may be: Provided that in respect of any appeal under clause (b) of sub-section (1), this sub-section shall have effect as if for the words 'sixty days', the words 'thirty days' had been substituted. (4) The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) has been preferred under sub-section (1) or sub-section (2) by the other party, may, notwithstanding that he may not have appealed against such order or any part thereof, within thirty days of the receipt of the notice, file a memorandum of cross-objections, ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be mistakes committed in appreciation of facts. in order to give finality to the correctness of facts appreciated by the Tribunal, it provided for rectification of its order in cases where the mistakes are apparent from the record and this is available in section 254(2) of the Act. Section 254 further provides that only in cases where section 256 of the Act has been moved by either of the parties, the order of the Tribunal shall be final. This suggests that the Tribunal is can no longer deal with the case once it pronounces its order and more so when no further proceedings like calling for a reference to the High Court on a question of law or a direct reference to the Supreme Court. Tribunal had been held as seized of the appeal only when the reference against it order is pending because as and when the High Court or the Supreme Court gives its decision Tribunal is required to give effect to such orders under section 260 of the Act on its order. The sections 254 and 256 of the Act is reproduced below for facility. 254. Orders of Appellate Tribunal. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly. (3) Where in the exercise of its powers under sub-section (2), the Appellate Tribunal refuses to state a case which it has been required by the assessee to state, the assessee may, within thirty days from the date on which he receives notice of such refusal, withdraw his application, and, if he does so, the fee paid shall be refunded. There used to be section 245M of the Act that permitted an appeal filed before the Tribunal to be allowed to be withdrawn in order to enable the assessee to approach the Settlement Commission. This was so thought of by the lawmaker for avoiding of parallel proceedings. Section 245M also provided that in the event the application moved before the Settlement Commission fails, the appeal that was allowed to be withdrawn by the Tribunal would be treated as never withdrawn. For the sake of facility the said section is brought down. 245M. Certain persons who have filed appeals to the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) appeal arising out of appellate order based on an assessment order; (2) appeal against the order of the Commissioner revising the order of assessment under section 263 of the Act; (3) appeal consequent to the giving effect to the order of the Commissioner; (4) appeal against the assessment framed consequent to the assessment being set aside; (5) reassessment consequent to reopening of assessment; (6) appeal against rectification of assessment, reassessment, revision, rectification of appellate order; and (7) appeal against an order of registration of a firm and so on. The appeals as listed above are considered independent proceedings and do not overlap one another. The issue in the present stay application and the appeal is quite different from the one described in the earlier paragraph. In civil proceedings a cause of action triggers an appeal and once that appeal is disposed of, the next course of action is namely, appeal to High Court or Special Leave to the Supreme Court. For the same cause of action the Court may not be empowered to hear the appeal or application because, on that very cause of action, the Court has pronounced its decision and its decision operates on prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight applying the said ratio of the Apex Court could have directed the Tribunal to proceed with the hearing of the appeal subject to its satisfaction that the delay in filing of the appeal is on account of a reasonable cause. The said decision could perhaps be relied upon if the appeal is pending and had not been disposed of. The Tribunal on a point having given its decision, the parties only should resort to the legal process because the earlier decision for the same assessee, same set of facts and year, etc., would be staring on the face of the Tribunal and that acts as res judicata. Though, courts have held in a number of cases that the principle of res judicata is not applicable to income-tax proceedings and this has been so stated on the reasoning that each assessment year is different and independent, but the general principle of res judicata applies to the appellate court. his is precisely what the Bombay High Court had come to hold that the appellate authority having disposed of an appeal for an assessment year, another appeal before him does not lay on a different point. This can be extended to mean that an appeal that is dismissed for a default could not be reinstated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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