9911796707
TMI Blog2012 (12) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... an addition of Rs.1 ,48,00,000 /- and other to Rs.43,300/-. The assessee's case with respect to addition of Rs.1 ,48,00,000 /- was allowed. The request for deleting addition of Rs.43 ,300 /- was not accepted. It was only when the Tribunal while allowing the Revenue's appeal and holding that the Commissioner erred in rectifying his own order that the Commissioner's original order dated 9.1.2002 was revived. It was therefore, only by virtue of Tribunal's order dated 31.3.2008 that the appellant's cause to challenge the Commissioner's order dated 9.1.2002 came to be revived. For the first time therefore, after rectification was allowed in favour of the assessee by the Commissioner( Appeals), he was aggrieved by the Commissioner's original o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we had issued notice for final disposal. We have heard learned counsel for the parties for final disposal of the appeal. For the purpose of this appeal, we frame following substantial question of law for consideration : Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal is right in law and on facts in dismissing the appeal of the appellant without going into the merits of the case on the ground that it was not maintainable? 2. Brief facts may be noted at this stage. 2.1 For the assessment year 1993-1994, assessment order under section 143(3) of the Act read with section 147 was passed on 27.3.2000. The Assessing Officer computed the total income of assessee at Rs.1 ,61,33,330 /-. The assessee pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) as well as order of rectification. The Tribunal was of the opinion that the Commissioner( Appeals) erred in exercising power of rectification. The Tribunal allowed the Revenue's appeal making following observations : 70. The power of rectification u/s 154 can be exercised only if there is mistake apparent from the record of the assessment of the assessee . In other words in order to attract the power to rectify u/s.154, it is not sufficient, if there is merely a mistake in the order sought to be rectified. This mistake to be rectified must be one apparent from the record. A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectification of original appellate order of CIT(A) on the given facts. Accordingly, the Revenue's appeal is allowed and the order of CIT( A) passed u/s154 of the Act is reversed. 2.3 Now that the Tribunal had reversed the order of Commissioner( Appeals) under section 154 of the Act, the assessee preferred rectification application before the Tribunal itself seeking to revive its previous appeal against order of the Commissioner. Such rectification application was dismissed by the Tribunal by order dated 15.5.2009 observing that under section 254(2) of the Act, the Tribunal has power to rectify at any time within four years from the date of order, mistake apparent from record. The assessee had consciously requested the Tribunal to grant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000 /- and other pertained to Rs.43,300/-. The assessee's case with respect to addition of Rs.1 ,48,00,000 /- was allowed. The request for deleting addition of Rs.43 ,300 /- was not accepted. 4. During the pendency of such rectification application, the assessee had also preferred an independent appeal before the Tribunal. Upon rectification application being granted and since the assessee was not interested in pursuing remaining small claim of Rs.43 ,300 /- which was not accepted by the Commissioner(Appeals) in the rectification order, assessee's appeal before the Tribunal was rendered infructuous . It is true that assessee had filed an application for withdrawal of the appeal. However, even if such application was not filed and if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cause, no reason, no possibility of maintaining any appeal against the Commissioner's original order dated 9.1.2002. 6. Under the circumstances, he has filed fresh appeal before the Tribunal once the entire reason for challenging the Commissioner's order changed. In our view therefore, delay was technical in nature and well explained. Tribunal having held that Commissioner( Appeals) should not have exercised rectification powers, had the responsibility to examine the assessee's challenge to the original order dated 9.1.2002 by which its appeal came to be dismissed by the Commissioner. The assessee only required an opportunity to challenge on merits the additions made by the Assessing Officer and confirmed by the Commissioner. 7. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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