9911796707
TMI Blog2000 (11) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dt. 7th Sept., 1995 (ITA No. 259/Asr/1995). (2) One Misc. Appln. No. 50/Asr/1995 and another Misc. Appln. No. 23/Asr/1996 arising out of ITA No. 259/Asr/1995 were also rejected by Hon'ble Tribunal vide its orders dt. 12th Jan., 1996, and 31st Oct., 1997, respectively. (3) Misc. Appln. No. 23/Asr/1996 has not sufficiently and effectively dealt with the objection of the applicant regarding jurisdiction of SMC ITA No. 259/Asr/1995 was filed on 13th March, 1995, whereas the assessment was completed by the Asstt. CIT on 23rd March, 1995. The assessment was made at Rs. 4,42,53,898. At the time of filing the appeal the assessment was pending and, therefore, the applicant was not in a position to give the figure of assessed income nor he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the case are that the AO, Ward-I(i), Amritsar, vide his order dt. 30th Aug., 1993, imposed a penalty of Rs. 1,00,000 under s. 271B of the IT Act, 1961, for the default of not getting the books of accounts audited as per the provisions of s. 44AB of the Act. Against the order of the AO the assessee preferred an appeal before the CIT(A). The learned CIT(A) vide his order dt. 30th Nov., 1994, dismissed the appeal of the assessee. 2.1. The assessee came in second appeal before the Tribunal. The Tribunal, Amritsar Bench 'SMC', vide his order dt. 7th Sept., 1995, passed in ITA No. 259/Asr/1995, dismissed the appeal, observing as under: "3. At the time of hearing the assessee and his counsel remained absent despite notice served by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, copy of assessment order was not attracted. (2) Column No. 3-A and 3-B of Form No. 36 were filled in by the appellant as under: 3-A Total income declared Rs. 29,640 3-B Total income as computed by the AO Rs. 29,640 (not disputed) The assessment was completed by the Asstt. CIT Circle 1(3), Amritsar, by assessment order, dt. 22nd March, 1995, at Rs. 4,42,53,898. (3) The Asstt. Registrar had not pointed out the defect in the memo of appeal and had not asked the appellant to rectify the defect within any reasonable time. No enquiry was made about the assessed income and the appeal was heard ex parte. (4) A further defect was also found in the Tribunal's order dt. 7th Sept., 1995, to the effect that the appeal was defective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the assessee is that while disposing of the Misc. Appln. No. 23/Asr/1996, the Tribunal has not properly considered and adjudicated upon the issue regarding jurisdiction of SMC. According to the learned counsel for the assessee, in this case, the AO has completed the assessment on 23rd March, 1995, determining the total income at Rs. 4,42,53,898 and, therefore, under the provisions of IT Act, the appeal No. 259/Asr/1995 should have been placed before the Division Bench of the Tribunal and Single Member of the Bench had no jurisdiction to decide the appeal. It is relevant to note that the assessee had moved Misc. Appln. No. 50/Asr/1995 before the Tribunal and the learned Hon'ble Member rejected the same on 12th Jan., 1996. In the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secondly, under the law, the Tribunal has no power to rectify its order dt. 31st Oct., 1997, passed under s. 254(2) of the Act. Sec. 254 provides as under: "254. (1) The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-s. (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the AO." From the above, it is clear that time allowed for rectification under the provisions of law is four years from the date of order passed under s. 254(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rectified must be one which has been passed by the Tribunal in an appeal filed under s. 253. In our view, an order rejecting an application for rectification under s. 254(2) is not available to be rectified under s. 254(2). The same may relate to an appeal, but it is not an order passed by the Tribunal under sub-s. (1) of s. 254. As indicated above, the assessee's application for rectification under s. 254(2) was rejected by the Tribunal. The second application was for rectification of some alleged mistakes in the said order of rejection. Sec. 254(2) had no application to such an order. The Tribunal was not justified in purporting to act under s. 254(2) and passing the impugned order." 3.1. In the case of CIT vs. Smt. Gunwanti Bai (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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