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2014 (3) TMI 431 - HC - Income TaxRevision power u/s 264 of the Act – Withdrawal of application - Whether mere filing of a withdrawal application in an appeal per se amounts to withdrawal of appeal or waiver of right of appeal – Held that:- Assessee is not correct in asserting that as soon as he filed application for withdrawal of appeal, it would result in a situation where the assessee can be said to have waived his right of appeal - This presumption is thoroughly misconceived - It pre-conceives a situation that as soon as an application for withdrawal is filed, the appeal is deemed withdrawn as if the authority concerned, where appeal is pending, has no otherwise power or right in respect of pending appeal - there is no provision under the Act, 1961, which contemplates such a situation - Relying upon Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others [2011 (1) TMI 175 - SUPREME COURT OF INDIA] - there is no provision which permits withdrawal of an appeal, once it is filed, and registered - once right of appeal is exhausted, by party concerned, and the appeal is filed before appropriate Appellate Authority, who after receiving same has registered it, there is no provision in the statute permitting withdrawal. Mere filing of an application seeking withdrawal of appeal would not have resulted as if the appeal stood withdrawn or deemed withdrawn unless an order is passed by Appellate Authority thereon for the reason that appellant could have always requested Appellate Authority not to pass any order on his withdrawal application since he does not press it and he could have the proceeded with his appeal - appeal continued to remain pending even if application was filed by petitioner seeking withdrawal of appeal - On the date when revision was filed by petitioner or when CIT passed order on petitioner's revision, petitioner's appeal, as a matter of fact, was pending before Appellate Authority. Hence the Revisional Authority was barred from revising order of Assessing Authority by virtue of sub-section (4) of Section 264 of Act, 1961. CIT committed a manifest error in exercising revisional power when petitioner's appeal was pending before CIT (Appeals) - The revision order was wholly without jurisdiction - thus, it has rightly been recalled - The Appellate Authority has rightly proceeded to decide appeal in view of the fact that petitioner did not press his application for withdrawal of appeal and more so in the light of judgment of Apex Court CIT Vs. Rai Bahadur Hardutroy Motilal Chamaria [1967 (4) TMI 8 - SUPREME Court] - the appeal filed could not have been withdrawn – Decided against Assessee.
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