9911796707
TMI Blog1982 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessment year under appeal, i.e., 1971-72, the assessee filed a declaration in Form No. 12 seeking continuation of registration under s. 184(7) of the I.T. Act. This declaration was not filed within the prescribed time and an application explaining the reasons for the delay and seeking condonation was filed. The ITO refused to condone the delay and completed the assessment taking the status of the assessee as an unregistered firm. The assessee, in its appeal against the order of assessment, raised the ground of status as well. The AAC set aside the assessment order and remanded the case to the ITO directing him to deal with the question of continuation of registration in the assessment order itself. After remand, when the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that as the matter of registration has become final after the orders of the Commissioner for the same year the same question cannot be re-agitated in another forum and in this view of the matter, the Tribunal allowed the appeal of the Department and it is after this judgment that the assessee submitted an application to the Appellate Tribunal for making a reference to this court and the Tribunal, therefore, has made a reference seeking an answer to the question. In the same matter, the assessee submitted an application before the Tribunal u/s. 154 of the I.T. Act for rectification of the Tribunal's order dated July 28, 1976, seeking correction of the order of dismissal of the appeal as withdrawn. The Tribunal dismissed this application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 245M but withdrawal on the basis of the legal situation that the appeal was not competent and it was withdrawn and the appeal was dismissed as withdrawn. It clearly amounts to a dismissal of the appeal as not competent and it was contended that even if subsequently the view of law had changed still it will not entitle the assessee to file an application u/s. 154 as it could not be said that it was a mistake apparent on the face of the record as if this were permissible, whenever the legal position changes on account of subsequent decisions, it will always be open to the parties to approach the Tribunal to reopen the appeal which has been once decided and this could not be contemplated under s. 154 of the I.T. Act. It was, therefore, contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section shall be made within a period of thirty days from the date on which the order of the Appellate Tribunal permitting the withdrawal of the appeal is communicated to the assessee. (6) An application made to the Settlement Commission under this section shall be deemed to be an application made under sub-section (1) of section 245C and the provisions of this Chapter (except sub-section (7) of section 245D) shall apply accordingly. (7) Where an application made to the Settlement Commission under this section is not entertained by the Settlement Commission, then, the assessee shall not be deemed to have withdrawn the appeal from the Appellate Tribunal and the provisions contained in section 253, section 254 and section 255, shall, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant that the appeal was not competent and learned counsel for the parties agree that as the law prevailed then, the appeal was not competent and, therefore, if the appeal filed by the assessee was dismissed as withdrawn, it could not be said that as there was no provision for withdrawal the Tribunal was not right in allowing the appeal to be withdrawn. It, therefore, could not be contended that that having been done, it is an error apparent on the face of the record. In substance, the order of the Tribunal dismissing the appeal as withdrawn clearly amounts to dismissal of the appeal as not competent, and it is, therefore, clear that the question of withdrawal of such an appeal under the circumstances stated above is not covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to its notice by the assessee, and where the authority concerned is the Appellate Assistant Commissioner, by the Income-tax Officer also ........" This clearly provides that a rectification can be done only if there is an error apparent on the face of the record. 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 there is an error apparent on the face of the record. Apparently, on the date on which the appeal was dismissed, the appeal was not competent and in substance, counsel for the assessee withdrawing the appeal submitted that the appeal was not competent and he chose to pursue the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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