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TMI Blog2019 (7) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in the order of Tribunal is hereby dismissed, being not maintainable. X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of Allahabad High Court in the case of Hiralal Suratwala Vs. CIT reported in 56 ITR Page 339 (All) and the decision of Hon'ble Gujarat High Court in the case of CIT Vs. Smt. Vasantben H. Sheth reported in (2015) 372 ITR 536 (Guj). 4. Thereafter a query was raised to the Learned AR as to whether assessee has preferred appeal against the order of Tribunal before Hon'ble High Court and if so then whether The Tribunal can decide the issue in 254(2) proceedings? In response to the query of the Bench, Ld AR submitted that against the quantum order passed by the Tribunal, assessee has filed appeal before the Hon'ble Bombay High Court in ITA Nos.471/2016 and 475/2016. The Hon'ble High Court vide order dated 26.11.2018 has admitted the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted the appeals of the assessee for consideration of substantial question of law. In support of assessee's contention that when even though against the order of Tribunal, assessee has filed appeal, still Tribunal can entertain an application u/s 254(2) of the Act seeking rectification of the order passed by Tribunal, Ld.A.R. has placed reliance on the decision of Hon'ble Bombay High Court in the case of M/s. R.W. Promotions Private Limited (supra). 7. We find that in the case of R.W. Promotions Pvt. Ltd. (supra), it was the case where against the order of Tribunal, assessee had filed an appeal u/s 260A of the Act before the Hon'ble High Court but the appeal was yet to be admitted. The Hon'ble High Court in the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 38 Taxmann.Com 110 (Guj) has held that when appeal has been filed before the Hon'ble High Court, the appeal is admitted and substantial question of law has been framed in the said appeal, then the Tribunal cannot recall the order. The relevant portion of the order reads as under : "6. In view of the above stand taken by the learned counsel appearing on behalf of the respondent - assessee recorded hereinabove, more particularly when against the impugned judgement and order dtd.11/7/2008 passed in ITA No.633/Ahd/2008, which has been recalled subsequently by the ITAT, Tax Appeal No.1231 of 2008, was already admitted on the substantial questions of law framed in the said appeal, impugned orders cannot be sustained. [Emphasis supplied] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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