9911796707
TMI Blog2018 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... carry out a review of its own orders - Tribunal constituted of two members to have acted without judicial propriety in having considered review of an order passed by a three member Bench. The specific power granted for review to an Appellate Tribunal does not even include correction of errors apparent on the face of the record. For rectification of errors, there is a specific provision under Section 43 of the Act. The petition filed herein is under sub-section (7) of Section 39 of the Act, which allows a review only on the basis of the discovery of new and important facts, which, after the exercise of due diligence, were not within the knowledge of the review petitioner or could not be produced by him. There is no new or important facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on two grounds, one on judicial propriety and the other on the review being not possible for reason of there being no new facts placed before the Tribunal for the purpose of review under Section 39(7) of the Act. On merits, it is submitted that the suo motu order was barred by limitation. 3. The following questions of law arise from the order of the Tribunal: ( i) Whether it was proper for the Tribunal constituted with the Chairman and one member to review an order of the Tribunal constituted of the Chairman and two members? ( ii) Whether there was any scope for review as permissible under Section 39(7) of the Act? ( iii) Whether Section 35(2A) of the Act enables the Deputy Commissioner to re-open or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the passing of the order referred to therein . ( 2A) Notwithstanding anything contained in Sub-section (2), the Deputy Commissioner may pass an order under Sub-section (1) on any point which has not been decided in an appeal or revision referred to in Clause (b) of Subsection (2), before the expiry of a period of one year from the date of the order in such appeal or revision or before the expiry of the period of four years referred to in Clause (c) of the Sub-section, whichever is later . ( 3) No order under this Section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard . ( 4) 6. Sub-section (2) provides certain fetters on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer had immediately taken a proceeding, on the penalty order being passed, definitely it would have been within the period of limitation. However, the Deputy Commissioner thought it fit that the statutory proceedings initiated by the assessee as against the penalty order under Section 45A of the Act be concluded before proceedings are taken. This is on a wrong understanding on the prohibition under sub-section (2) of Section 35 of the Act. The appeal or revision against the penalty order issued on detection of offence subsequent to the completion of assessment is not the prohibition brought out under sub-section (2). The pendency of an appeal or revision, which prohibits invocation of Section 35(1) of the Act is from that order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that no such application shall be preferred more than once in respect of the same order . ( b) The application for review shall be preferred in the prescribed manner and within one year from the date on which a copy of the order to which the application relates was served on the applicant in the manner prescribed, and where the application is preferred by any person other than an officer empowered by the Government under Sub-section (1), it shall be accompanied by a fee of rupees two hundred and fifty . 10. The specific power granted for review to an Appellate Tribunal does not even include correction of errors apparent on the face of the record. For rectification of errors, there is a specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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