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TMI Blog2004 (5) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-2004 - Judge(s) : N. K. SUD., S. S. GREWAL. JUDGMENT The judgment of the court was delivered by N.K. Sud J. - The assessee has filed this appeal under section 260A of the Income-tax Act, 1961 (for short "the Act"), against the orders of the Income-tax Appellate Tribunal, Chandigarh Bench (for short "the Tribunal"), dated October 29,1999, disposing of the appeal filed by the assessee and dated August 8, 2002, rejecting its application under section 254(2) of the Act for recall of its order dated October 29, 1999. We have our doubts about the maintainability of a consolidated appeal against two orders of the Tribunal. However, in view of the factual position in this case, it is not necessary for us to go into that question. It is an admitted position that the assessee had earlier preferred an appeal under section 260A of the Act before this court against the order of the Tribunal dated October 29, 1999, which was numbered as Income-tax Appeal No. 28 of 2000. The said appeal was disposed of vide order dated August 3, 2001, as under: "Mr. Mittal states that the appellant has filed an application for rectification of the order dated October 29, 1999, before the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 50 per cent, marks for performance appraisal were excessive. The Division Bench reduced the interview marks from 25 per cent, to 15 per cent, and increased the marks, regarding length of service above 5 years, from 15 per cent, to 25 per cent. With these modifications, the Division Bench dismissed the writ appeals. The Corporation filed special leave petitions against the judgment of the Division Bench which were rejected by this court on October 4, 1991, by the following order: 'The special leave petitions are rejected as withdrawn with liberty to the petitioner to approach the High Court, if it is so advised, to point out the case which has since been pleaded before us.' 5. Thereafter, the Corporation, in terms of the liberty granted by this court, approached the High Court by way of miscellaneous petitions requesting the High Court to consider the matter afresh in the light of various points raised in the petitions. The High Court by the order dated April 24, 1992, dismissed the petitions. These appeals by way of special leave are against the judgment of the Division Bench of the High Court in the writ appeals, order dismissing the review petitions and the order dismissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim." Sub-rule (3) specifies the circumstances under which a court may permit a plaintiff to withdraw from a suit with liberty to institute a fresh suit in respect of the same subject matter. Sub-rule (4) places an embargo on institution of a fresh suit in respect of any subject matter against which an earlier suit had been withdrawn without the requisite permission under sub-rule (3). In Upadhyay and Co. v. State of U.P., AIR 1999 SC 509, while explaining the principle underlying rule 1 of Order 23 of the Code of Civil Procedure, the Supreme Court at page 512 has observed as under: "'We are of the view that the principle underl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain submissions and arguments made by the assessee had escaped its notice while deciding the appeal which had resulted in miscarriage of justice and, accordingly, it was prayed that order dated October 29, 1999, should be recalled and the appeal be decided afresh. This application has been rejected by the Tribunal vide impugned order dated August 8, 2002. The Tribunal has observed that section 254(2) of the Act does not authorize it to either review or recall its order. The scope of its jurisdiction under this provision is confined to rectification of the mistakes apparent from record which may be found in its order passed in appeal and consequent amendment, if any. The Tribunal has observed that there was nothing on record to show that the arguments, which are allegedly raised but not considered by the earlier Bench, were in fact, urged before the Bench at the time of hearing. Thus, it has been held that there is no mistake in its order which is apparent from the record warranting rectification under section 254(2) of the Act. Counsel for the appellant has not been able to controvert this factual position. He has not drawn our attention to any material on record to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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