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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 ..... plication No.220/AHD/2012 in ITA No.548/AHD/2012 for the assessment year 2000-01, by which in exercise of powers under subsection (2) of section 254 of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), the learned ITAT has allowed the said miscellaneous application by observing that "we are of the view that considering the peculiar circumstances of the case, the Commissioner of Income Tax may consider the case afresh including the issue of condonation of delay and after giving proper opportunity of hearing to the assessee pass necessary orders". [2.0] Facts leading to the present special civil application in nutshell are as under: [2.1] That the respondent herein - assessee filed the return of income for the Assessment Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that the same was not maintainable. [3.3] It is further submitted that as such by passing the impugned order, the learned ITAT has nullified its earlier order passed in appeal dismissing the appeal as not maintainable. It is further submitted that as such by passing the impugned order, except submitting that MA is accordingly allowed, neither the order passed by the Commissioner under section 119(2)(b) of the Act has been specifically set aside nor any specific direction is given. It is submitted that whatever is stated in para 5 can be said to be their views. However, as such neither the order passed by the Commissioner under section 119(2)(b) of the Act has been set aside nor any specific direction given to the Commissioner. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication 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. Mauna Bhatt, learned counsel appearing on behalf of the petitioner and perused the impugned order passed by the learned Appellate Tribunal in Miscellaneous Application/Rectification Application as well as the original order passed in ITA No.548/AHD/2012. [5.1] The challenge by the assessee before the learned Appellate Tribunal was the order passed by the Commissioner on the application submitted by the assessee under section 119(2)(b) of the Act praying for condonation of delay in furnishing return of income. As such by order dated 15.05.2012, the learned Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 6 of the impugned order reads as under: "5. We find that the assessee is a retired labourer and is not fully conversant with tax laws. Considering the totality of facts and in the interest of justice we are of the view that considering the peculiar circumstances of the case the Commissioner of Income tax may consider the case afresh including the issue of condonation 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there cannot be any rectification/miscellaneous application in an appeal which was not maintainable before the Tribunal. [5.6] Even otherwise the impugned order cannot be sustained and it suffers from serious legal defect. As stated hereinabove, 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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