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TMI Blog2015 (2) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable against the order passed by the Commissioner nor infact there is any finding given by the learned Tribunal in the impugned order that the appeal is held maintainable. Under the circumstances, as such the order passed by the learned Tribunal in rectification application/miscellaneous application is wholly without jurisdiction, as if in the original order, Tribunal was of the opinion that the order passed by the Commissioner was not appealable, in exercise of rectification powers the Tribunal simply could not have given directions to the Commissioner to pass fresh order on the respondent’s application. As such by passing the impugned order in the rectification application, the Tribunal has nullified the original order of the Commissioner and directed him to pass a fresh order after hearing the respondent. - Decided in favour of revenue. - SPECIAL CIVIL APPLICATION NO. 16524 of 2013 - - - Dated:- 25-11-2013 - MR. M.R. SHAH AND MR. R.P.DHOLARIA, JJ. FOR THE APPELLANT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Articles 226, 227 of the Constitution of India, petitioner - Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring to the assessee, pass the necessary orders. Sum and substance of the impugned order seems to be that the learned ITAT seems to have set aside the order passed by the Commissioner passed under section 119(2)(b) of the Act and has directed the Commissioner to pass a fresh order considering the observations made by the learned ITAT in the rectification application. [2.3] Feeling aggrieved and dissatisfied with the impugned order passed by the learned ITAT in rectification application, the Revenue - Commissioner of Income TaxII, Vadodara has preferred the present special civil application under Articles 226, 227 of the Constitution of India. [3.0] Mrs. Mauna Bhatt, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such the impugned order passed by the learned ITAT is wholly without jurisdiction. It is submitted that as such the learned ITAT dismissed the appeal preferred by the assessee, preferred against the order passed by the Commissioner under section 119(2)(b) of the Act by holding that the order passed by the Commissioner is administrative order. Appeal against the said order would not be maintainable before the learned ITAT. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has vehemently submitted that as such the order passed by the Commissioner under Section 119(2)(b) of the Act would not fall under any of the category as mentioned in section 253 of the Act and therefore, against the order passed by the Commissioner, under section 119(2)(b) of the Act, appeal before the learned ITAT under section 253 of the Act would not be maintainable. It is submitted that the learned ITAT cannot exercise the appellate jurisdiction unless the same is conferred under the statute. It is submitted that therefore, as such earlier the learned ITAT rightly dismissed the appeal as not maintainable. [3.5] Mrs. Bhatt, learned advocate appearing on behalf of the petitioner has heavily relied upon the observations made by the Division Bench of this Court in para 7 of judgment and order passed in Special Civil Application No.8003/2013. Making above submissions and relying upon above observations made in para 7 of the judgment and order passed by the Division Bench of this Court in Special Civil Application No.8003/2013, it is requested to allow the present special civil application. [4.0] Though served, nobody appears on behalf of the respondent. [5.0] Heard Mrs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of delay and after giving proper opportunity of hearing to the assessee pass the necessary orders. 6. Miscellaneous application is accordingly allowed. [5.4] However, from the aforesaid it can be said that the learned Tribunal seems to be of the view that the Commissioner may consider the case afresh including the issue of condonation of delay and after giving opportunity of hearing to the assessee and pass the necessary orders. Therefore, as such and without further entering into any technicality, it can be said that the learned Tribunal has set aside the order passed by the Commissioner and has remanded the matter to the Commissioner to pass a fresh order. Therefore, what is required to be considered is, whether the learned Tribunal is justified in passing the impugned order? [5.5] As stated hereinabove, as such the learned Tribunal dismissed the appeal as not maintainable and as such rightly held that the appeal was not maintainable. Once the appeal itself was held to be not maintainable, it is not appreciable how the rectification application in an appeal which was held to be not maintainable, can be said to be maintainable. Under the circumstances, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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