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2013 (10) TMI 354 - ALLAHABAD HIGH COURTApplication for Modification of Order - Whether the Tribunal is justified to deal with the application for modification of the order without listing the same before the Bench who passed the order – Held that:- The same bench would have disposed of the application for modification appears to be misconceived as a perusal of Rule 31-A makes it abundantly clear that application for rectification of a mistake is to be heard by the same bench which had heard the appeal or otherwise as directed by the President - the order of which modification has been sought, has disposed of the application and not the appeal - Thus, the order has been passed by the Bench presided over by the President is fully within its competence and it is incorrect to say that it travelled beyond its jurisdiction. Whether the Tribunal was justified in dismissing the Misc. Application holding that the Modification Application is in the nature of an application seeking review of the order on merits - the modification of the order has been sought on account of the non-consideration of the facts of the case and the grounds taken in support of the stay cum waiver application – Held that:- The appellant has not deposited the amount as directed by the Tribunal vide order - the date on which none was present on behalf of the appellant - The appellant has stated that non-presence before the Tribunal was for the reason that the train reached late to New Delhi - It is also true that the appeal has been rejected in terms of the order whereby the application for modification was rejected. Section 35-F is not a condition precedent for filing an appeal, but it is certainly a condition precedent for hearing the appeal on merits - Statutory right of appeal subject to condition of deposit shall be treated as a valuable right of the assessee and the Tribunal should not be very harsh on the appellant while exercising the discretionary powers under Section 35-F. There was some misunderstanding as the appellant had never filed any appeal against the requirement of pre-deposit before the High Court, but as stated that he intends to file an appeal before the High Court against the stay order - there was no occasion for the appellant to produce copy of any order passed by the High Court as mentioned in the order -The fact remains that the appeal of the appellant has been dismissed for not complying the earlier orders of the Tribunal without touching the merit - Interest of justice would suffice, if the appeal preferred by the appellant before the Tribunal is restored and decided on merits provided appellant deposited amount – Decided in favour of Assessee.
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