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TMI Blog2016 (10) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... following reasons:- "The learned counsel for the Assessee reiterated the stand of the Assessee as contained in the miscellaneous application. We are of the view that jurisdiction u/s.254(2) of the Act can be exercised only to rectify an error apparent on the face of the record. The contention in the miscellaneous application, even if true, cannot give rise to any mistake in the order of the Tribunal apparent on the face of the record. The miscellaneous application, in our view, cannot therefore be entertained and the same is hereby rejected." The facts of the case, briefly stated, are as follows:- The question arose before the assessing officer, whether the Income Tax Rule-8 was applicable in assessing fringe benefit tax. The assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was done 40 per cent. of the net profit and loss had to be worked out which shall be chargeable to tax. Once this was done the expenditure on account of fringe benefits would automatically stand reduced to 40 per cent." The aforesaid judgement was rendered on 3rd July, 2014 of which the advisors of the appellant were not aware. The appellant was advised based on the earlier views of the Tribunal that he had no chance of success and was persuaded to write a letter dated 30th November, 2015 that the appellant was not desirous to press the appeal. Based on the aforesaid letter of the appellant the appeal was dismissed by the learned Tribunal by its order dated 3rd December, 2015. Subsequent thereto, the appellant discovered that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was decided a few months prior to that decision, but it was not brought to the attention of the Tribunal. In our opinion, in the circumstances, the Tribunal has not committed any error of law or of jurisdiction in exercising power under sub-section (2) of section 254 of the Act and in rectifying the "mistake apparent from the record". Since no error was committed by the Tribunal in rectifying the mistake, the High Court was not wrong in confirming the said order. Both the orders, therefore, in our opinion, are strictly in consonance with law and no interference is called for." Mr. Agarwal, learned advocate for the revenue, submitted that there can be no question of any mistake because the order dismissing the appeal was passed on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No elaborate reasoning is required to show that this judgement has no manner of application to the facts and circumstances of the case before us. The next judgement cited by Mr.Agarwal, is in the case of Mahakoshal Ceramics vs. Commissioner of Income Tax, a Division Bench judgement of Madhya Pradesh High Court, reported in (1983) 143 ITR 976 (MP). The question arose whether on the basis of a subsequent decision, a concluded matter could be reopened? That question was answered in the negative. The Madhya Pradesh High Court held as follows:- "If the appeal was dismissed as withdrawn as it was clear that the appeal itself was not competent, merely because of subsequent decision that the view of the law has changed, it could not be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, made, based on the earlier views taken by the Tribunal holding that Income Tax Rule-8 had no applicability in the matter of fringe benefit tax. (c) It does not appear that the learned Tribunal was alive of the fact that the jurisdictional High Court had already taken a different view. There is, as such, no doubt that the order was prayed for and passed under a mistaken belief that Income Tax Rule-8 had no applicability to the fringe benefit tax. Section 254(2) provides as follows:- "The Appellate Tribunal may, at any time within (six months from the end of the month in which the order was passed), with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner prayed for justice which was denied to her owing to patently wrong steps taken by her under legal advice. In such a situation the Court would be failing in its duty if it does not invoke its inherent powers to come to her rescue." In summing up, we may indicate the question which falls for consideration:- "whether the power under section 254(2) can be exercised in the case of a mistake apparent on the part of the litigant or his advisors?" For the reasons discussed above, we answer the question in the affirmative. This appeal is, therefore, disposed of by setting aside the order under challenge. The learned Tribunal shall hear out the appeal on merits. Considering that this matter has been hanging fire for long, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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