TMI Blog2010 (9) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... eal order relating to the assessment year 1992-93 (I. T. A. No. 766/Mds/00) and 1995-96 (I. T. A. No. 681/Mds/03) on the ground that no legal ground was taken on the validity of the reopening of the assessment. The Tribunal further pointed out that no additional grounds stated to have been filed was available in the files. The Tribunal, however, rectified its orders on other aspects and granted the relief. The writ petitioner is challenging that portion of the order relating to the claim on the additional grounds raised on the validity of the reopening of assessment. 2. It is seen from the order of the Tribunal that it rectified the order as regards the broken period interest. Being a mistake apparent from the record, the Tribunal recal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment years 1992-93 and 1995-96. Aggrieved by this portion of the order, the present writ petitions are filed. 3. Learned counsel for the petitioner placed reliance on the decision reported in CIT v. Malladi Project Management P. Limited [2010] 324 ITR 87 (Mad), wherein it is held that failure by the Tribunal to consider a ground would not be a reason for filing an appeal. The reported decision relates to an issue raised by the Revenue that a particular ground raised was not considered by the Tribunal. To this, this court held that it is for the Revenue to bring the same to the notice of the Tribunal and get it rectified by a procedure known to law. The failure of the Tribunal to consider the issue raised, by itself, cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he apex court pointed out "in a pending proceeding, the Controller may pass interlocutory orders in a pending proceeding. Under section 36, he may pass orders for the summoning of witnesses, the issue of commissions for examination of witnesses discovery, production and inspection of documents and inspection of premises. . . .Under section 38 an appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal. As against the orders of the Appellate Tribunal under section 39 an appeal lies to the High Court." 6. Referring to section 38(1), the apex court pointed out "the object of section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any party. Thus, an order of the Rent Controller refusing to set aside an exparte order is subject to appeal to the Rent Control Tribunal." 7. Going by the above understanding of the phrase "every order" and the rejection of the rectification petition was on the merits and not as to the maintainability of the same, the proper course for the assessee would be to file an appeal under section 260A of the Income-tax Act. The section pro-vides for an appeal remedy as against every order passed in appeal by the Tribunal. Applying the decision of the apex court to the provisions under section 260A of the Income-tax Act, that the order passed being one on the appeal order, writ will not lie as against an order passed by the Tribunal in the rect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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