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TMI Blog2014 (3) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... e appropriate Appellate Authority, who after receiving same has registered it, there is no provision in the statute permitting withdrawal. Mere filing of an application seeking withdrawal of appeal would not have resulted as if the appeal stood withdrawn or deemed withdrawn unless an order is passed by Appellate Authority thereon for the reason that appellant could have always requested Appellate Authority not to pass any order on his withdrawal application since he does not press it and he could have the proceeded with his appeal - appeal continued to remain pending even if application was filed by petitioner seeking withdrawal of appeal - On the date when revision was filed by petitioner or when CIT passed order on petitioner's revision, petitioner's appeal, as a matter of fact, was pending before Appellate Authority. Hence the Revisional Authority was barred from revising order of Assessing Authority by virtue of sub-section (4) of Section 264 of Act, 1961. CIT committed a manifest error in exercising revisional power when petitioner's appeal was pending before CIT (Appeals) - The revision order was wholly without jurisdiction - thus, it has rightly been recalled - The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2012). On 24.02.2012 he sent an application by post seeking withdrawal of his appeal against assessment order dated 26.12.2011. This application is said to have been received in the office of CIT (Appeals) on 27.02.2012. Thereafter on 28.02.2012 petitioner preferred revision under Section 264 of Act, 1961 stating that he has already waived his right of appeal and thus challenging assessment order dated 26.12.2011, in revision. In the memo of revision submitted by petitioner, he specifically said in para 4 that he filed appeal before CIT (Appeals) which has been withdrawn . The Revisional Authority, i.e., CIT, Gorakhpur allowed revision partly vide order dated 26.03.2012 by deleting addition of Rs. 2,01,71,883/- made under Section 40A(3) of Act, 1961 but maintained rest of assessment order. 7. Petitioner's appeal, however, remain pending before CIT (Appeals). It appears that notice for hearing was issued thereon on 18.12.2012, fixing a date for hearing on which petitioner did not appear, but sought adjournment by a letter, sent by post. CIT (Appeals) declined to adjourn the matter and proceeded on appeal. He considered petitioner's withdrawal application and relying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l stands withdrawn. In the present case, revision preferred by petitioner, when appeal pending, was not maintainable. The Revisional Authority committed a patent error in exercising revisional jurisdiction during pendency of appeal, though it was prohibited under Section 264(4) of Act, 1961 and, therefore, its order dated 26.03.2012 was wholly without jurisdiction. It, thus, has rightly been cancelled by means of impugned order dated 29.08.2013 (Annexure-7 to the writ petition). 10. In order to examine rival submissions vis a vis the the issue raised in this petition, first, this Court need to see, when a Revisional Authority is permitted to entertain a revision under Section 264(1) of Act, 1961. It reads as under: 264. (1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed has not expired. In other words if the order of subordinate authority is appealable before Deputy Commissioner or Commissioner or Tribunal and limitation to file appeal has not expired, then revisional power under Section 264(1) shall not be exercised. 13. Another contingency is in respect of a matter where an appeal lies to Commissioner (Appeals) or Appellate Tribunal and there the assessee has not waived his right of appeal. This contingency is not applicable in cases where appeal lies to Deputy Commissioner (Appeals). 14. Clauses (b) and (c) are also very differently worded. Clause (b) contemplates a situation where an appeal has been filed before Deputy Commissioner (Appeals) and it is pending thereat. If in such a case, the order required to be passed by Appellate Authority is pending, at this stage or during that period, revision under Section 264(1) shall not be admissible since the Commissioner in such matter shall not revise an order passed by subordinate authority. 15. Clause (c), however, applies to a situation where order of subordinate authority is made subject of an appeal before Commissioner (Appeals) or Appellate Tribunal and that itself is sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt thereof. Order XXIII Rule 1 reads as under: 1. Withdrawal of suit of abandonment of part of claim.--(1) At any time after, the institution of a suit, the plaintiff may as against all of any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied.-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the act of withdrawal. On page 322, para 9 of the judgement, the Court observed: The right to withdraw has been expressly conferred by rule 1(1); there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes in itself a right to revoke the withdrawal. As we said earlier, certain consequences arise from the withdrawal which prevent his revoking the withdrawal, the withdrawal is complete or effective as soon as it takes place, and, in any case, as soon as information of it is conveyed to the Court, and no order of the Court is required to effectuate it or even to recognize it. 1030. In Smt. Raisa Sultana Begam (supra), Order 23, Rule 1, as was in the statute book prior to 1976, was under consideration, which read as under : 1. (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with rules, the plaint would become the property of the Court and it would result in certain legal consequences, i.e., pendency of a suit or a case before a Court of law. The said legal consequences cannot be nullified without any order of the Court by the litigant simply by orally or in writing informing the Court that he intends to withdraw the suit. It is true that under Order 23 Rule 1, as it stood before 1976 amendment, there was no provision requiring any specific order to be passed by the Court allowing the plaintiff to withdraw his suit but considering the entire procedure of institution of a suit, it cannot be doubted that a suit, duly instituted, and registered in a Court of law cannot stand withdrawn without any order of the Court. In this regard, it would be appropriate to have the procedure of filing of suit in C.P.C., as it was prior to its amendment in 1976. 1033. Order IV Rule 1 (Allahabad amendment) provides for institution of suit and reads as under : 1. (1) Every suit shall be instituted by presenting to the Court or such officer as it appoints in this behalf, a plaint, together with a true copy for service with the summons upon each defendant, unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , empowering the Court to consider as to whether the plaintiff should be saddled with the liability of payment of cost or not also contemplates that an application for withdrawal of suit by itself would not result in any consequences whatsoever unless the Court has applied its mind regarding the cost. If what has been held in Smt. Raisa Sultana Begam (supra) is taken to be correct, it would mean that there would be no occasion for the Court to apply its mind on the question of cost under Rule 1(3) since the suit would stand dismissed as withdrawn as soon as the plaintiff informs the Court about his decision for withdrawal of the suit either orally or in writing. This is nothing but making Rule 3 (1) redundant. The earlier judgement of this Court in Raja Shumsher Bahadoor Vs. Mirja Mahomed Ali (1867) Agra H.C.R. 158 wherein this view was taken that the withdrawal must be regarded as terminating automatically the proceedings in the suit involving the suit's immediate dismissal was not found to be correct subsequently by the Division Bench in Ram Bharos Lall. We, therefore, find it appropriate in the entire facts and circumstances to take a different view and have no hesitation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge has found that recently even the Apex Court has taken a similar view in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others, 2011(2) SCC 705 reversing a decision of this Court. The view taken by this Court that once an application to withdraw the suit is filed there is no occasion to file a further withdrawal application to withdraw the earlier application, has been negatived by Apex Court observing that an application praying for withdrawal of withdrawal application was maintainable. 23. Now coming back to the provisions in Act, 1961. Here I find that there is no provision which permits withdrawal of an appeal, once it is filed, and registered. In other words, once right of appeal is exhausted, by party concerned, and the appeal is filed before appropriate Appellate Authority, who after receiving same has registered it, I find no provision in the statute permitting withdrawal thereof. It is perhaps in this context of the matter that a three Judge Bench of Apex Court in CIT Vs. Rai Bahadur Hardutroy Motilal Chamaria (supra) said: It is also well established that an assessee having once filed an appeal cannot withdraw it. In other words, the assessee havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (4) of Section 264 of Act, 1961. 27. There is another aspect of the matter. Clause (a) talks of a situation where assessee has not waived his right of appeal. When appeal is filed, the right of appeal stands availed and exhausted by assessee, hence question of waiver of right of appeal thereafter would not arise. Moreover, Clause (b) and (c) also makes a distinction in respect of an appeal preferred before Commissioner (Appeals) or Appellate Tribunal vis-a-vis appeal preferred before Deputy Commissioner (Appeals). For an appeal preferred before Deputy Commissioner (Appeals), Clause (b) says that if an order on appeal is pending but when an appeal is preferred before Commissioner (Appeals) or Appellate Tribunal, Clause (c) contemplates that the order has been made subject of appeal, meaning thereby mere filing of appeal against assessment order is sufficient to attract Clause (c) and thereafter power of revision shall stand lost and cannot be invoked. 28. In view thereof, I am clearly of the view that CIT committed a manifest error in exercising revisional power when petitioner's appeal was pending before CIT (Appeals). The revisional order, therefore, was wholly wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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