TMI Blog2014 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... al may come to finding that in view of certain further facts available in the search and seizure appeal, the findings in order dated 20.10.2010 of the Tribunal may not apply to the present appeal. However, the order of the Tribunal dated 20.10.2010 in regular assessment proceedings cannot be shut out at the threshold. - Tribunal directed to recall its order dated 30.1.2013 – Decided in favour of assessee. - Writ Petition No. 126 of 2014 - - - Dated:- 24-6-2014 - M. S. Sanklecha And G. S. Kulkarni,JJ. For the Petitioner : Mr. B. V. Jhaveri For the Respondent : Mr. P. C. Chhotaray ORDER (Per M. S. Sanklecha, J.) 1. At the request of the Counsel the petition is taken up for final disposal at the stage of admission. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner was not aware of the order dated 20.10.2010 of the Tribunal while making submission leading to order dated 30.1.2013 also of the Tribunal. This, according to the application, was for the reason that the Chartered Accountant briefing the Counsel in the appeal was unwell and bedridden. Therefore, the Counsel could not briefed on the above facts. 4. It was on receipt of the order of the Tribunal dated 30.1.2013 that the petitioner realised that the attention of the Tribunal was not drawn to the Tribunal's order dated 20.10.2010 in regular proceedings, which had given a finding of fact that the petitioner's had on sale of shares earned capital gains but had restored it to the Assessing Officer only to determine whether capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the rectification application, the petitioner had drawn attention to certain inconsistencies in the Tribunal's order dated 30.1.2013. However, this aspect was not dealt with in the impugned order. 7. Mr.Chhotaray, learned Counsel for Revenue strongly opposed the petition. According to Mr.Chhotaray, the entire issue stands decided by virtue of Tribunal's order dated 30.1.2013 and the statements made during the search and seizure proceedings by various persons including the assessee. Moreover he was at pains to point out that the petitioner had not preferred an appeal against the order dated 30.1.2013 of the Tribunal. In the above circumstances, he submits that no interference is called for. 8. On consideration of the riva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in the above case allowed the rectification application and recalled the earlier order and posted the appeal for fresh hearing. The Supreme Court while upholding the order of the Tribunal observed :- No illegality can be said to have been committed by the Tribunal in allowing the application and in recalling the order and no grievance can be made against such action of the Tribunal. Moreover, no prejudice had been caused to the Revenue inasmuch as the Tribunal has not allowed the appeal filed by the assessee nor quashed an order of assessment. It merely recalled the earlier order in the light of a decision of the High Court of Gujarat. The order of the Tribunal, therefore, was strictly in accordance with law. It may not be ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application, the Tribunal may come to finding that in view of certain further facts available in the search and seizure appeal, the findings in order dated 20.10.2010 of the Tribunal may not apply to the present appeal. However, the order of the Tribunal dated 20.10.2010 in regular assessment proceedings cannot be shut out at the threshold. Thus, the order dated 20.10.2010 of the Tribunal certainly does merit consideration by the Tribunal while deciding the appeal of the petitioner in the proceedings resulting from the search and seizure for the assessment year 2004-05 itself. 9. In the above view of the matter, we set aside the order of the Tribunal dated 18.10.2013 and direct the Tribunal to recall its order dated 30.1.2013 and thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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