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TMI Blog2013 (10) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not normally entertain a writ petition. However, we have entertained this petition in view of the peculiar facts of this case. This petition is filed from an order dated 10 April 2013 dismissing a Miscellaneous Application for restoration of the petitioner's appeal dismissed by the Tribunal on 6 December 2007 for non prosecution. This Court in its order in the matter of Chem Amit vs. CIT 272 ITR 397 has held that no appeal under Section 260A of the Act would lie from an order dismissing a Miscellaneous/rectification application of an earlier order of the Tribunal disposing of the appeal. In such cases, the appeal under Section 260A of the Act would be from the earlier order which in this case is dated 6 December 2007. In view of the above, no appeal would be available under Section 260A of the Act from the order dated 10 April 2013. However, as the issue raised in the petition is of crucial importance in the passing of orders under the Act by the Tribunal viz. the issue of interpretation of Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 ("Tribunal Rules"), Section 254(1) and (2) of the Act we have entertained this petition in our extraordinary writ jurisdiction. 5) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of want of prosecution, as none was present on behalf of petitioner. e) On 18 December 2007, the petitioner received the order dismissing the petitioner's appeal. The order dated 6 December 2007 of the Tribunal records the fact that when the appeal was called out on 4 December 2007, none was present on behalf of the petitioner, therefore, the appeal was dismissed for want of prosecution. f) The petitioner states that on receipt of the order dated 6 December 2007, the petitioner's executives initiated process of drafting a Miscellaneous Application seeking to recall the said order and for that purpose even had a meeting with their Counsel. The Senior Officers of the petitioner were under the impression that the process of filing of Miscellaneous Application was complete and according to them they were waiting for a notice for hearing of the Miscellaneous Application from the Tribunal. g) It was sometime in July 2012 (no specific date mentioned) when the petitioner was preparing for the hearing of its appeal for a subsequent assessment year, it noticed that though a draft Miscellaneous Application was in the file, an acknowledged copy of the same from the Tribunal, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order dated 6 December 2007 made by the petitioner is an application to be considered within the province of Section 254(1) of the Act. However, the Tribunal misdirected itself by treating the application for recall as an application for rectification under Section 254(2) of the Act and not under Section 254(1) of the Act; c) The application dated 6 August 2012 for recall was made by the petitioner under the proviso to Rule 24 of the Tribunal Rules which does not provide for any period of limitation. Thus, such an application is appropriately required to be considered by the Tribunal under the proviso to Rule 24 of the Tribunal Rules without incorporating any period of limitation therein; d) The delay in moving the Miscellaneous Application on 6 August 2012 for recall of order dated 6 December 2007 was on account of genuine mistake /misunderstanding and no sooner the appellant realized the same in July 2012 an application was filed within a month for recall of the same. Thus, in the facts of the case, there was no delay and/or laches on the part of the petitioner; and e) The interests of justice would require that the order dated 6 December 2007 be recalled and the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The aforesaid order was received by the appellant on 18 December 2007. At no point of time prior to August 2012 did the petitioner make any movement to have the order dated 6 December 2007 recalled. The period to consider the limitation/ laches commences from 18 December 2007 and not from July 2012 as urged on behalf of the petitioner. Statutory Provisions: 9) Before dealing with the submissions of the Counsel, it may be convenient to reproduce the relevant provisions of the Act and Tribunal Rules which would have a bearing in considering the submissions made by the Counsel. Orders of Appellate Tribunal Section 254 : (1) The appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate Tribunal may at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1), and shall make such amendment is the mistake is brought to its notice by the assessee or the [Assessing] Officer: Provided that an amendment which has the effect of enhancing an amount or reducing a refund or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensuring that justice is done, the Tribunal cannot as a matter of practice bar any Advocates/representative from mentioning their matters before the Tribunal. If indeed this is so, the Tribunal must do away with such a practice. The mentioning of matters should be allowed by the Tribunal. It is of course in the Tribunal's discretion to allow the request made by the parties while mentioning but prohibiting mentioning of matters before a Court/Tribunal is a likely recipe for injustice. In case the Tribunal is following the practice of not allowing mentioning of matters before it, we would request the Tribunal to henceforth do away with such a practice and allow mentioning of matters. It is made clear whether or not to allow the application made on mentioning by the parties is for the Tribunal to decide in exercise of its discretion. 11) Now turning to the merits of this petition, it is contended by the petitioner that the order passed on 6 December 2007 on its appeal was an order passed in breach of Rule 24 of the Tribunal's Rules. We find that when the appellant is not present before the Tribunal when the appeal is called out for hearing the Tribunal could either adjourn the hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinks fit and shall communicate any such order to the assessee and to the Commissioner". The provisions of Section 254(1) of the Act though reproduced herein above are again reproduced for convenience and read as under: " 254(1) The appellant Tribunal may after giving both the parties to the appeal an opportunity of being heard pass such order thereon as it thinks fit. It would therefore, be noted that Section 33(4) of the 1922 Act and Section 254(1) of the Act are almost identically worded. Thus it is not open the Tribunal to exercise its inherent powers to dismiss the appeal for default as the mandate of Section 254(1) of the Act is to dispose of the appeal on merits even in the absence of the appellant. This would logically follow from the decision of the Apex Court in S. Chennippa Mudaliar (supra). 13) This Court in the matter of Chemipol vs. Union of India (244) E.L.T. 497 (Bom.) while dealing with the powers of Customs Excise and Service Tax Appellate Tribunal to dismiss an appeal for default has observed that though every Court or Tribunal has an inherent power to dismiss the proceeding for non prosecution yet this inherent power is lost where the statute requires the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an order dismissing an appeal for default of appearance by the Tribunal was an order which suffered from an error apparent on the face of the record. We are of the view that in the above circumstances if there is an error apparent on the face of the record, Section 254(2) of the Act alone is applicable. Where Parliament has provided a specific provision in the Act to deal with a particular situation, it is not open to ignore the same and apply some other provision. Section 254(2) of the Act empowers the Tribunal to correct/rectify its order only within four years from the date of the order which is sought to be rectified. In this case it is an admitted position that the miscellaneous application is filed on 6 August 2012 i.e. beyond four years of the order dated 6 December 2007 which is sought to be rectified. 15) It was next contended that in any event Section 254(2) of the Act would have no application on the ground that Miscellaneous Application made in August 2012 is under the proviso to Rule 24 of the Tribunal Rules which does not have any period of limitation. Moreover in such cases, it is contended that the application is not to rectify an error in the order but is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original order. However, the recall, if any, is only as a consequence of rectifying the original order. It is pertinent to note that Section 254(2) of the Act does not prohibit the recall of an order. In fact the power/jurisdiction of the Tribunal to recall an order on rectification application made under Section 254(2) of the Act is no longer resintegra. The issue stands covered by the decision of the Apex Court in Assistant Commissioner of Income Tax vs. Saurtashtra Kutch Stock Exchange Limited (2008) 305 ITR 227 which held that though the Tribunal has no power to review its own order, yet it has jurisdiction to rectify any mistake apparent on the face of the record and as a consequence therefore, Tribunal can even recall its order. In the above case before the Apex Court on 27 October 2000 the Tribunal dismissed the appeal of Stock Exchange holding that it was not entitled to exemption under Section 11 read with Section12 of the Act. On 13 November 2000 the Stock Exchange filed a rectification application under Section 254(2) of the Act before the Tribunal. The Tribunal by its order dated 5 September 2001 allowed the application and held that there was mistake apparent on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. In fact, the Apex Court in the Sultan Sadik v/s. Sanjay Raj Subba reported in 2004(2) SCC 277 has observed as under:::: " Patent and latent invalidity In a wellknown passage Lord Radcliffe said : " An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." This must be equally true even where the brand of invalidity is plainly visible, for there also the order can effectively be resisted in law only by obtaining a decision of Court." Further the Supreme Court in Sneh Gupta v/s. Dev Sarup (2009) 6 SCC 194 has observed " We are concerned herein with the question of limitation. The compromise decree, as indicated herein before, even if void was required to be set aside. A consent decree as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in Limitation Act 1963 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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