9911796707
TMI Blog2016 (6) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... h May, 2006 passed under Section 254(1) of the Act by the Tribunal. The relevant Assessment Year is 200102. 2. This Petition was admitted on 18th September 2008. 3. Briefly the facts leadings to this Petition are as under :- (a) The petitioner filed its return of income on 31st October, 2001 declaring a total income of Rs. 74.18 crores, paying self assessment tax of Rs. 90 lakhs. This was in partial discharge of tax and interest liability aggregating of Rs. 10.03 crores. (b) On 13th December, 2001 the Assessing Officer passed an order under Section 140A of the Act. The above order held that as the petitioner had failed to partially pay the self assessment tax along with interest it is deemed to be an assessee in default under Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking action under Section 221 of the Act though raised before the Tribunal has not been considered. However, by an order dated 7th March, 2007 the Tribunal dismissed the petitioner's Miscellaneous Application, inter alia, holding that there was no error apparent from the record. This for the reason that no submission with regard to nonservice of a demand notice before imposing a penalty under Section 221 of the Act upon the petitioner was made during the hearing of the appeal leading to order dated 9th May, 2006. (f) The petitioner challenged the order dated 7th March, 2007 of the Tribunal by filing Writ Petition No.1517 of 2007 in this Court. On consideration of the submissions, this Court by an order dated 31st July, 2007 allowed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand notice had been raised by the petitioner before the Tribunal during the hearing of its appeal under Section 252(1) of the Act. At the hearing of the Miscellaneous Application the Tribunal should have recalled the order of dismissal dated 9th May, 2006 and listed the appeal of the petitioner before it for hearing under Section 254(1) of the Act on the issue it had failed to to consider. Not following the above procedure has left the petitioner remedyless. This is so as even though the petitioner is aggrieved by the order of the Tribunal holding on merits (while disposing of rectification application) that nonservice of a demand notice would have no impact on penalty proceedings it cannot prefer an appeal under Section 260A of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order." 7. We note that this Court in its order dated 31st July, 2007 has while setting aside the order dated 7th March, 2007 of the Tribunal dismissing the petitioner's Miscellaneous Application had held that there was an error apparent from the record in the order dated 9th May, 2006. The direction of the Court in its order dated 31st July, 2007 to the Tribunal to dispose of the Miscellaneous Application on merits as there is an error apparent on record in the order dated 9th May, 2006. This disposing of Miscellaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. This right cannot be bypassed by dealing with the merits in an Miscellaneous Application for rectification.
8. In the above view, we set aside the impugned order dated 14th March, 2008 of the Tribunal. We direct the Tribunal to recall its order dated 9th May, 2006 to the extent it upheld the order of the Assessing Officer imposing penalty under Section 221 of the Act and post the appeal for hearing at a date convenient to it. Needless to state petitioner's appeal in respect of only the above issue would be decided after hearing the parties. The other issues would not be redecided as they stand concluded by the order dated 9th May, 2006.
9. Rule made absolute in above terms. No order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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