TMI Blog2011 (2) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... is the duty of Advocates and Chartered Accountants not to boycott the Income-tax Appellate Tribunal and ask the Tribunal to desist from discharging judicial functions. At any rate, no Advocate can ask the Court to avoid a case on the ground that he does not want to appear in that Court Tribunal while exercising the power of rectification u/s 254(2) can recall its order in entirety if it is satisfied that prejudice has resulted to the party, which is attributable to the Tribunal's mistake, error or omission and which error is manifest error and it has nothing to do with the doctrine or concept of inherent power. In all cases where the Court is satisfied that the ex parte order (passed due to the absence of the Advocate pursuant to any strike call) could be set aside on terms, the Court can as well permit the party to realize the cost from the Advocate concerned without driving such party to initiate another legal action against the Advocate. Thus all the Miscellaneous Applications are allowed. - 575, 576 & 646 (LUCK.) OF 2005, 149 & 167 OF 2006, - - - Dated:- 15-2-2011 - H.L. KARWA,N.K. SAINI, JJ. Amit Shukla and Rakesh Garg for the Applicant. P.K. Bajaj and Anadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to come to Lucknow as he is tied up High Court and touring Bench at ITAT, Allahabad. 2. On the other hand Shri R.C. Sharma, learned CIT, DR submitted that the adjournment application filed by the learned Advocate is on false pretext. In fact learned counsel is not appearing in this Bench on count of strike organized by him and some other advocates. Learned D.R. submitted that counsel is resorting to collective absenteeism and they are all causing harm to public interest. This cannot be a good ground for adjournment. Learned D.R. referred to the decision of Hon'ble Supreme Court in Ramon Services (P.) Ltd. v. Subhash Kapoor [2000] 113 Taxman 676 for the proposition that when an Advocate, engaged by a party, goes on strike, there is no obligation on the part of the court either to wait or to adjourn the case on that account. Time and again Hon'ble Supreme Court has said that an Advocate has no right to stall the court proceedings on the ground that Advocates have decided to strike or to boycott the courts or even boycott any particular court. Learned D.R. pointed out that the learned Counsel is not appearing in a particular constitution otherwise he is appearing in other co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons, he was not available to conduct the appeal on 22-11-2007. 3. The assessee was handicapped in making alternate arrangement as no counsel was prepared to accept the brief on such a short notice and the call for absenteeism given by the members of Bar, made the task absolutely impossible. 4. From the narration given above, it may very kindly be seen that the assessee was prevented by reasonable and sufficient cause in attending to the said proceedings on the appointed date. It is therefore just and expedient that the ex parte order is called under rule 24 of the Income-tax Appellate (Tribunal) Rules, 1963, so that the appeal may be restored and decided on merits thereto. Prayer In view of the submissions made above, it is respectfully prayed that your honour be pleased: (a) to recall the ex parte order dated 22-11-2007 passed in ITA No. 435(Luc.)/2004 for the Block Period; (b) to restore the said appeal for being heard and decided afresh, in accordance with the provisions of law; and (c) to grant such other relief as is found admissible under law and equity. 10. A copy of the above referred order dated 22-11-2007 passed by the Hon'ble IT AT is enclosed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the International Labour Organisation (ILO), namely, the Constitution of 1919 and the Declaration of Philadelphia of 1944. The right to work is included in the Universal Declaration of Human Rights (1948) and the International Covenant on Economics, Social and Cultural Rights (1966). The right not to work could be comprehended as right to strike. The word strike has been defined under section 2(q) of the Industrial Disputes Act, 1947. Strike is the act of stopping work by a body of workmen for the purpose of coercing their employer to accede to some demands they have made upon him. A perusal of various provisions of the Industrial Disputes Act, 1947 would reveal that workers have no absolute right to go on strike. Section 22 of the Industrial Disputes Act, 1947 lays down circumstances in which strike in public utility services is prohibited. Under section 23 there are restrictions imposed on workmen from going on strike in the circumstances enumerated therein. If we look into the provisions of the Advocates Act and the Legal Practitioners Act, it become evident that the position of advocates is quite different from an employee. A Code of Ethics for the legal profession in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to a group of men pursing a learned art as a common calling in the spirit of public service. Pursuit of learned art in the sprit of a public service is the primary purpose. In ensuring the rule of law a most significant part is played by the lawyers. It is said that Judges most often shine with the reflected glory of lawyers. In this view it is difficult to concede a right to boycott courts to the lawyers on the analogy of conceding right to strike of employees. Moreover, the right to strike work in India is admittedly not absolute. This is so in the industrial sector as well as in public service sector. The members of the Bar Association thus have no right to boycott courts in view of the duties which they are required to discharge. It is true that under the Constitution of India, freedom of association is guaranteed as a fundamental right, but this right is subject to reasonable restriction in the interest of public order or morality. The prohibition against strikes by lawyers is inbuilt in the Advocates Act, 1961. The duties to the court and duties to the clients prescribed by Bar Council of India go to prove that strike or boycotting of courts is antithesis to practice in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, who accepts the brief in a criminal case, to attend the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty if he so fails to attend. This view of the Hon'ble Supreme Court is in consonance with the views of the Indian Judiciary for the last several decades. The Hon'ble Calcutta High Court adopted this view as early as 1923 in Traini Mohan Barar case (AIR 1923 Cal. 242). In that case a decision to boycott the court was in issue. A resolution was passed by the Bar Association not to appear before the Fourth Subordinate Judge in view of the fact that insult inflicted on Pleader Shri Babu Rabindra Nath Chatterjee, was an insult to the whole Bar. It was in consequence of the resolution that the pleaders refused to appear before the Subordinate Judge. The High Court ruled : The pleader has duties and obligations to their clients in respect of the suits and matters entrusted to them which were pending in the Court of the learned Subordinate Judge. There was further and equally important duty and obligation upon them viz., to co-operate with the Court in the ordinary and pure administration of justice. By the course which they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to decide cases by studying the pleas and the law on the subject even if unaided either by the parties or their counsel. There is no legal impediment in the way of the Court not to administer justice when lawyers abstain from appearing in Courts or they appear but refuse to assist the Court in the administration of justice. Code of Civil Procedure contains provisions for proceeding with cases where parties fail to appear." Thus the courts are unanimous in their verdict that deliberately absenting from court is unprofessional and unethical and there is no legal basis behind the strike commenced pursuant to the passing of resolution by the Bar Association when such association of lawyers have no arrangement for providing work to its members for their livelihood. If we examine the legal implication of a lawyer's accepting a brief we find an advocate does certainly undertake a duty on his client's behalf, but by accepting the brief, he enters into a contract, express or implied, with his client. He is deemed to have taken on himself a duty in the proper discharge of which, not only the client but the court and the public at large have an interest. Lawyers have extensive discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was dismissed and eventually the suit was decreed on 13-11-1998. Therefore, the appellant filed an application to set aside the ex parte decree. The said application was dismissed by the trial court, for which the following reasoning, inter alia, has been stated. It is settled law that strike or boycott by the advocates is no ground for adjournment. Hon'ble Supreme Court in Mahabir Prasad Singh v. Jacks Aviation (P.) Ltd. [1999] 1 SCC 37 has held that all the courts have to do judicial business during court hours. It is the solemn duty of every lawyer to attend the court. The defendant and the counsel very well know that the case was fixed on 26-8-1998 for plaintiffs evidence. Counsel for the defendant (at least 8 counsels had been engaged by the defendant) and the defendant deliberately did not appear on 26-8-1998. There is no bona fide or reasonable ground put forward by the defendant or their counsel for non-appearance. They, were knowing the consequence of non-appearance. I therefore, find no ground in allowing the application under Order 9 Rule 16 CPC. The application is hereby dismissed with costs. The appellant therefore approached the High Court with an appeal agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntially a service - oriented profession. The relationship between the lawyer and his client is one of trust and confidence. In Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra [1984] 2 SCC 556/[1984] SCC (Cri.) 335 it was observed that : (SCC Headnote) An advocate stands in a loco parentis towards the litigants. Therefore, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsel's paramount duty is to the client. The client is entitled to receive disinterrted, sincere and honest treatment." It would be against professional etiquette of a lawyer to deprive his client of his service in the court on account of strike. No advocate can take it for granted that he will appear in the court according to his whim or convenience. It would be against professional ethics for a lawyer to abstain from the court when the cause of his client is called for hearing or further proceedings. In Brahma Prakash Sharma v. State of U.P. (AIR 1954 SC 10/1954 Cri. LJ 238/1953 SCR 1169) a Constitution Bench of the Hon'ble Supreme Court held that a resolution passed by the Bar Associatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating.' 'A three-Judge Bench of Hon'ble Supreme Court has reminded members of the legal profession in Lt. Col. S.J. Chaudhary v. State (Delhi Admn.) [1984] 1 SCC 722 : 1984 SCC (Cri.) 163 that it is the duty of every advocate who accepts a brief to attend the trial and such duty cannot be overstressed. It was further reminded that 'having accepted the brief, he well be committing a breach of his professional duty, if he so fails to attend.' A lawyer is under obligation to do nothing that shall detract from the dignity of the court, of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the courtroom. (Warvelle's Legal Ethics, at p. 182). In the light of the consistent views of the judiciary regarding the strike by the advocates, no leniency can be shown to the defaulting party, and if the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex parte order. Hence, pleading rule 24 of Appellate Tribunal Rules, it is argued that the ex parte decree cannot be sustained. It is to be remembered that in the aforesaid case, substantial cost was awarded against the appellant. Secondly, an ex parte judgment being recalled in legal framework outlined earlier would amount to allowing of the miscellaneous application. That the ex parte judgment can be sustained in itself even if ruling in Multiplan India Ltd. is ignored we have got enough indications of. Secondly, adherence to the said Rule cannot be at the cost of law as laid down and interpreted by the Hon'ble Supreme Court above. A rule does not exist in vacuum - it is an aid to functioning. It is formalization of procedure. It cannot create a situation where by adherence to it would be in contravention of law laid down. The basic proposition of ITAT passing orders "as it deemed fit laid down in section 254(1) cannot be curtailed by bounds apparently created by a unduly formalistic interpretation of rule 24. Besides the factual matrix of prior intimation to client and attempt to reach court by one of lawyer of the lawyer firm under question as detailed in para 8 of the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Rule 24 of Appellate Tribunal Rules clearly provides that if the appellant does not appear either personally or through A.R. the Tribunal may dispose the appeal on merits after hearing the respondent. The proviso to this rule says that : "Where an appeal has been disposed of as provided above"... and subsequently the appellant appears and provides sufficient cause for non-appearance the ex parte order shall be set aside. In the instant case this factual matrix is absent. Here the appeal has not been disposed off on merits. Therefore, the main rule as well as proviso do not have any application. It has been repeatedly pleaded that these MAs are to be restored under rule 24 proviso. For example in MA Nos. 11 and 12 it is clearly mentioned in the application of the assessee that it is under rule 24 of the Appellate Tribunal Rules. This being so the mandate on the Hon'ble Tribunal is confined to deciding whether this application under rule 24 is maintainable or not. The Appellate Tribunal Rules are adjunct to the main provision of statute embodied in section 254 onwards of Income-tax Act, 1961. It is well established that if the language of the statute is plain and capable of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds of appeal have not been adjudicated so it constitutes a mistake apparent from record. [Some MAs in fact are under section 254(2)] This is a completely untenable argument because assessee chose not to present the grounds of appeal before the Bench and hence appeal has been dismissed in default. This dismissal is adjudication of the grounds of appeal. So it is incorrect to say that this case is a mistake apparent from record. Apart from this if we look at the latest judicial rulings relating to section 254(2) we find that in the case of Saurashtra Kutch Stock Exchange Ltd. 305 ITR 227 (SC) the Hon'ble Court labels in (para 37) such a mistake, as patent, manifest and self evident error which does not require elaborate discussion of evidence or arguments. It is clear that no such error has been committed in the ex parte dismissal. In the earlier judgment of Honda Siel Power Products Ltd., reported in 165 Taxman 307 (SC) what is spoken of is "manifest error". The scope and import of section 254(2) has been classically defined in the case of Smt. Santosh Jawa reported in 104 TTJ (518) (Jaipur) which has relied on the judgment of Hon'ble Supreme Court in the case of 176 ITR 535. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f case laws given by the assessee In the compilation of case laws 7 cases have been cited. The first case is of Ramon Services Pvt. Ltd., which has been cited by the undersigned originally. The second case cited is 294 ITR 401. This is pertaining to rules 19, 20 and 24. Here no such plea as raised by the undersigned was considered or decided. It did not pertain to deliberate non-appearance. Likewise judgment of R.P. Borah of 302 ITR is clearly distinguishable. In the case of A.K. Agrahari 323 ITR, the appeal was restored because adjournment application was rejected and written submission etc., filed by the assessee was not considered. In the instant case the factual matrices is completely different. For example there is no written submission in cases of L.H. Sugar. Likewise in MA numbers 13, 24, 62. Further for a paper book to be considered it has to be referred. The judicial opinion is settled in this aspect. In the case of S.C. Mudaliar, 74 ITR as well as Shri Bhagwan Radha Kishan, 22 ITR the case pertains to rule 24 of Appellate Tribunal Rules 1946. Rule 24 as it stood then specifically provided for dismissal in default and is clearly different from present rule where that pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be violated by such patently unpardonable conduct unbecoming of an officer of the Court, as honourable and esteemed members of the Bar undisputably are. We must all not only profess but practice what we preach about the haloed stature of a justice dispensing institution. Submitted. Sd. Anadi Verma Dated : 21-1-2011 Sr.DR-I." 6. In rejoinder, Shri Amit Shukla, Advocate, ld. Counsel for the assessee submitted that the ld. S.R.D.R. opposed the above applications by referring to the decision of the Hon'ble Apex Court. In the case of Mahabir Prasad Singh v. Jacs Aviation [1999] 1 SCC 37. Crux of the said case, as pointed out by the ld. D.R., was that the action of the "strike" by the lawyers is condemnable and the same being an act of negligence and professional misconduct, should not be treated as reasonable cause for setting aside the ex parte order. The ld., D.R. also submitted that rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963 also is of no avail to the applications as the Tribunal has not decided the appeal on merits, but dismissed the same in default. Shri Amit Shukla, ld. Counsel for the assessee relied upon the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self-imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the Court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realize the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and canons of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor (B and Cm.) MPSEB v. Tax Recovery Officer (sic) 11 TTJ (Jab.) 149. Shri Amit Shukla, Advocate, ld. Counsel for the assessee submitted that the said decision was on an entirely different set of facts. There the application was given on behalf of the assessee to recall an order of the Tribunal that had been passed under section 254(2) i.e., against the order earlier passed by the ITAT in the Misc. Application. The Tribunal rejected the second application on the ground that no application under section 254(2) lies against the order of rectification. 6.3 Shri Amit Shukla, Advocate, ld. Counsel for the assessee submitted that in any case the submission made by the ld. D.R. to the effect that rules 24 and 25 are available to recall an ex parte order, only where the Tribunal has decided an appeal on merits is devoid of merits. These are merely the enabling provisions under which the Tribunal can proceed to decide the appeal on merits. The said Rules do not place any restriction on the powers of Tribunal to recall an ex parte order, rather rule 24 as a whole was substituted by the Income-tax (Appellate Tribunal) (Amendment) Rules, 1987 with effect from 1-8-1987. 6.4 Shri Amit Shukl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order; and (iii) The Proviso has specifically been added to the new form of rule 24, so as to cure such defect in the earlier rule. 6.7 Shri Amit Shukla, Advocate, ld. Counsel for the assessee submitted that the aforesaid proposition goes to negate the plea of the ld. Sr. D.R. that where appeal has not been decided on merits, rule 24 cannot be pressed into service for recalling an ex parte order. Even at the cost of repetition, Shri Amit Shukla, ld. Counsel for the assessee submitted that such a negation is based on the principle that even without Rule in its behalf the Tribunal has inherent power and jurisdiction to recall the ex parte order under section 254(2) of the Act. 6.8 It was also submitted on behalf of the applicants that the matter of recalling the ex parte order, deserves to be examined from other angle also. It is undisputed fact that in all these appeals there were variety of grounds and while deciding the appeals in default, the Tribunal did not deal with and decide any of the grounds. It is not a case where the appeal remained non-admitted or was not found to be non-maintainable for any reason whatsoever. Shri Amit Shukla, Advocate, ld. Counsel for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates by the Tribunal precisely on the ground that each one of them was prevented by "sufficient cause" from prosecuting the appeals as above. The cause given is that assessees/applicants had engaged Lawyers and Chartered Accountants from Lucknow and Kanpur for conducting the cases. However, due to call for absenteeism given by the members of various bars of Lucknow, Kanpur, Bareilly and Allahabad and also for other unavoidable reasons, the counsels could not become available to conduct the appeals on the different dates fixed for hearing. It is pleaded that in such a situation, the assessees/applicants could not make alternative arrangement also, as no counsel was available to accept the brief. The facts are very clear that the Tribunal has dismissed the above referred appeals in default on the ground that none was present to prosecute the appeals. At this stage, we are not going to enquire into the cause of strike by the Lawyers. Admittedly the Lawyers and Chartered Accountants were on strike for some reason or the other and they have boycotted the Tribunal and did not put their presence before the Tribunal. We are of the view that the Tribunal should not go into the cause of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters which were extraneous. The judicial proceedings in this Court relating to the administrating the High Court during that period would indicate that this went severely wrong in the High Court's administration in certain matters. The fact is that the advocates were on strike justifiably or otherwise. Why should the Court embark on the reason for the strike which was not the issue before it? Therefore, all the observations which we have quoted above were totally unwarranted. A judge must be of sterner stuff. His mental equipoise must always remain firm and undeflected. It is essential that a Judge should not allow his personal prejudice to go into the decision-making as was remarked by Scrutton, LJ. in R v. Bath Compensation Authority [1925] 1 KB 635, 719 (CA) : The object... is not merely that the scales be held even; it is also that they may not appear to be inclined. 6. A closed mind is antithetical to fair hearing. Prejudice tends to corrupt the ability to exercise independent judgment. It has a tendency to intrude upon a free mind and may influence the outcome. At this stage, it is worthwhile to recall the words of Mr. Justice Frankfurter in Public Utilities Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates Act. Rules I and II of Chapter II of the Rules lay down standards of professional conduct and etiquette and duties to the client and to the Court. Rule 12 provides that an Advocate shall not withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Rule 15 provides that it shall be the duty of an Advocate freely to uphold the interest of his client by all fair and honourable means without regard to any unpleasant consequence to himself or to any other. Rule 24 lays down that an Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. In our view, amongst various duties required to be discharged by the lawyers, one of the duties to the court is that an Advocate shall maintain towards the Court a respectful attitude bearing in mind that the dignity of the judicial office is essential for the survival of an independent judiciary, and thus of constitutional Government. In our opinion, it is difficult to concede a right to boycott courts to the lawyers on the analogy of conceding right to strike of employees. The members of the Bar Association thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated or controlled by the Association of lawyers, in the manner of giving calls to its members to go on strike and not to appear in Courts in their cases, which is not legal when such association of lawyers have no arrangement for providing work (judicial work) to its members for their livelihood, how such calls are given for strike by such association." In our view, the Courts are unanimous in their verdict that deliberately absenting from court is unprofessional and unethical and there is no legal basis behind the strike commenced pursuant to the passing of resolution by the Bar Association when such association of lawyers have no arrangement for providing work to its members for their livelihood. 8.1 In the case of Mahabir Prasad Singh (supra), the Hon'ble Supreme Court held that all the Courts have to do judicial business during Court hours. It is the solemn duty of every lawyer to attend the Court. 8.2 Keeping in view the various pronouncements of the Courts we are of the view that strike by the Advocates should be condemned in strong words. It is the duty of Advocates and Chartered Accountants not to boycott the Income-tax Appellate Tribunal and ask the Tribunal to des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n merits after hearing the respondent. The proviso to this Rule says that "where an appeal has been disposed of as provided above" and subsequently the appellant appears and provides sufficient cause for non-appearance, the ex parte order shall be set aside. According to the ld. D.R. in the instant cases, the above factual matrix is absent. Here, the appeals have not been disposed of on merits. Therefore, the main Rule as well as proviso do not have nay application. Shri Anadi Verma, ld. Sr. D.R. submitted that most of the Miscellaneous Applications are filed under rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963. He, therefore, submitted that the Tribunal is confined to decide whether this application under rule 24 is maintainable or not. He further submitted that the Appellate Tribunal Rules are adjunct to the main provision of the Statute embodied in section 254 onwards of the Income-tax Act, 1961. We find merit in the submissions of Shri Anadi Verma, ld. D.R. We find that the language of Rule is plain and it is clear that the applications of the applicants/assessees do not fall under rule 24 of the Appellate Tribunal Rules because none of the appeals was decided on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered and decided by the Tribunal and hence there is a mistake apparent from the record and the Tribunal should set aside the orders and restore the appeals for hearing. They also submitted that all the Miscellaneous Applications may be treated as filed under section 254(2) of the Act. 10.7 (i) In the case of Laxmi Electronic Corpn. Ltd. (supra) at page 401, the Hon'ble Allahabad High Court observed and held as under : "It is a well settled proposition that an act of court (which, in the context, means and includes a Tribunal of the nature of the Income- tax Appellate Tribunal) should not prejudice a party. In such a case, it would not be just to drive the party to a reference under section 256. It must be left to the Tribunal to reopen the appeal if it finds that it has omitted to deal with an important ground urged by the party. We are not persuaded to agree that the expression "record" in the phrase "mistake apparent from the record" in section 254(2) means only the judgment. The record means the record before the Tribunal. Failure to deal with a preliminary objection of the nature concerned herein certainly amounts to a mistake apparent from the record." (ii) In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r then the Tribunal would be justified in rectifying its mistake, which had been done in the present case." (iv) In the case of Lachman Pass Bhatia Hingwala (P.) Ltd. (supra), the Full Bench of the Hon'ble Delhi High Court held as under : "In Honda Siel Power Products Ltd. [2007] 293 ITR 132 (Delhi) the High Court considered the contention that the recall of the Tribunal's entire decision was prohibited on the basis that in the garb of rectification, the order cannot be recalled. The application for rectification was filed as the Tribunal had not taken note of a binding precedent though it was cited before the Tribunal. In that factual background, the Supreme Court held that the power of rectification has been conferred on the Tribunal to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record and that atonement to the wronged party by the court or the Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. The court took note of the fact that the Tribunal committed a mistake in or considering material which was already on record and the Tribunal ackno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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