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2015 (10) TMI 1518 - HC - Income TaxRectification application u/s 154 to rectify the factual error which had crept into the earlier order dated 16.11.2010 - application under section 254(2) of the Act seeking recall of the order passed by the Tribunal in the light of the fact that the same confirmed the previous order passed by the Commissioner (Appeals), which already stood merged with the subsequent order - Tribunal dismissed the miscellaneous application mainly on the ground that there was no sufficient reason for non-appearance at the time of hearing of the appeal on the part of the assessee - Held that:- The approach adopted by the Tribunal cannot in any manner be said to be reasonable. When the order which was subject-matter of challenge before the Tribunal was no longer in existence as the same had merged with the subsequent order passed by the Commissioner (Appeals), the Tribunal was not justified in not recalling the previous order passed by it on the appeal preferred by the assessee confirming the previous order passed by the Commissioner (Appeals). Merely because the Tribunal did not find that sufficient cause had been made out by the assessee of remaining absent at the time when the appeal came to be decided, was no reason for the Tribunal, having regard to the facts and circumstances of the case to reject the application filed by the petitioner. Besides, it is an admitted position that against the subsequent order dated 3.3.2011 passed by the Commissioner (Appeals), the revenue had already preferred an appeal which is pending before the Tribunal, which fact had also not been brought to the notice of the Tribunal by the departmental representative. It is in these circumstances that the Tribunal had proceeded to uphold the previous order passed by the Commissioner (Appeals). Having regard to the overall facts of the case, in the opinion of this court the Tribunal ought to have allowed the application and recalled its previous order confirming the order passed by the Commissioner (Appeals), inasmuch as on that date the said order passed by the Commissioner (Appeals) already stood merged with the subsequent order. Rectification allowed - Decided in favour of assessee.
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