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TMI Blog2011 (2) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee are directed against the order of CIT(A), Agra dated 17-5-2005 relating to assessment years 1998-99 and 1999-2000. (2) The above noted cases were fixed for hearing on 30-10-2007. Nobody appeared on behalf of the assessee when the case was called for hearing. Earlier the cases were fixed for hearing on severed times but at the assessee's request the same were adjourned. There was also no communication or information as to why assessee remained absent on the above etc. It seems that assessee is not interested to pursue the matter. The laws aid those who are vigilant, not those who sleep upon their rights. This principle is embodied in well known dictum "vigilantibus non dormientibus jura subveniunt". Considering the facts and keeping in view the provisions or rule 19(2) of the Appellate Tribunal Rules, as were considered in 38 ITD 320 (Del.) in the case of CIT v. Multiplan India Ltd., we treat these appeals as un-admitted. (3) In the result, the appeals of the assessee are dismissed .. Sd. Sd. (H.L. Karwa) (D.C. Agrawal) Judicial Member Accountant Member Dated 30th October, 2007." In remaining appeals, the Tribunal has passed the similar orders and we r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnment was sought by learned Counsel for the assessee on 6-12-2006 and 15-10-2007. In between adjournments were also done at the request of D.R. At present, application for adjournment was filed by Shri Amit Shukla,who was present in other constitution, indicates that the learned Counsel for the assessee is resorting to collective anbsenteeism on account of strike call given by them vide their letter dated 22-10-2007. We accordingly do not hold the reason for adjournment justified and reject the application. The appeal is dismissed for want of prosecution. 5. In the result, the appeal of the assessee is dismissed. 6. Order is pronounced in the open court on 19-11-2007. Sd. Sd. (H.L. Karwa) (D.C. Agrawal) Judicial Member Accountant Member Dated 22-11- 2007." 2. The facts and the pleas taken by the assessees in all the Miscellaneous Applications are similar and for the sake of convenience, we reproduce the contents of M.A. No. 34(Luc.)/2008 arising out of ITA No. 435(Luc.)/2007, order dated 22-11-2007: "Sir, The above named assessee/appellant most respectfully begs to submit and showeth as under. 2. For conducting the aforesaid appeal wherein substantial issue w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ex parte orders passed by the Hon'ble Bench 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 the assessees/applicants had engaged Shri S.K. Garg, Advocate and Shri Rakesh Garg, Advocate 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 dates fixed for hearing. In such situation, the assessees/applicants could not make alternative arrangement also, as no Counsel was available to accept the brief. It was also submitted that the Tribunal had inherent judicial power to set aside the ex parte order and making fresh opportunity of being heard to the party. In view of the above, it was submitted that the orders passed in above appeals may be set aside and the appeals be restored for hearing on merits. 5. Shri Anadi Verma, Sr. D.R. vide letter dated 24-9-2009 and Shri P.K. Bajaj, Sr. D.R. vide letter dated 6-1-2011 filed detailed Written Submissions on behalf of the revenue. For the sak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. The rights and privileges of an advocate carry with them the corresponding duty not to abuse them. Thus when an advocate accepts a brief it is his bounden duty to attend to his client's interest with due diligence and if he fails to do so, he is likely to be dealt with for neglect and is also answerable to the client. If he is unable to attend when the case is called, he is bound to make some other arrangements for the proper representation of his client or the brief should be returned in good time. In short, the advocates owe a duty not only to their clients, but also to the court and are bound to co-operate with the court in the orderly administration of justice. 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. When we consider the role of lawyers in the administration of justice, we ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular judge because of any grievance - real or alleged, whether touching the court or of political or other character. The pleader accepting the vakalatnama cannot divest himself of his duties arising from such acceptance without leave of the court. If he desires to discharge himself from a case, he must give his client reasonable notice of his intention. It is not difficult to realize that serious uncertainties and inconveniences might arise in the conduct of judicial proceedings if the appointment of a pleader made in writing and lodged in the court where the case was to be tried could be revoked without the knowledge and sanction of the Court. If the practitioner wants to withdrawn he must always give reasonable notice of his withdrawal from the case to his client Hoby v. Built [1832] 3 B and Ad 350 : 1 LJKB 121 : 110 ER 131; Harris v. Osburn [1834] 2 Cr. And M. 629 : 4 Tyr. 445-149 ER 912; Nicolls v. Wison [1843] 11 M. and W. 106 : 12 L.J. Ex. 26: 152 ER 734; Whitehead v. Lord [1852] 7 Ex. 691 : 21 L.J. Ex. 239: 19 L.T. 113 : 155 ER 1126. Taking the same line of arguments the Hon'ble Supreme Court also observed that absenting from courts on a particular day in pursuance of a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason, and reason is never of more telling effect than when expressed with dignity wrapped in humility). A Division Bench of the same High Court has in Rajinder Singh v. Union of India [1993 (2) SLR 450] observed : What legal sanction the Association of Lawyers has to give call to the lawyers to go on strike is beyond our comprehension. The fear in the lawyers as is being projected by Mr. Saini, not to argue the case of being punished by the Association to go on strike or in other words to abstain from appearing in Court, has no legal basis. The functioning of the Courts in the matter of administration of justice is not to be regulated 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. Further comments can only be given as and when action of any Association in imposing penalty on a lawyer is challenged in any Court. If the position is examined from a different angle, the result would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir duties. And in case if the advocate himself is improperly dealt with - he should vindicate the independence of the Bar. [Above submissions (from pages 1 to 7) are extracted from an article by Hon'ble Justice Pana Chand Jain (Retd.). His contribution is gratefully acknowledged.] One of the other leading authorities on the issue under question is the judgment rendered by the Hon'ble Supreme Court reported in 113 Taxman 676. The facts of the case set out in para 3 of the said judgment (also reported in [2001] 1 SCC 118) read as under : The appellant Company was in occupation of a building as tenant at Barakhamba Road, New Delhi. A suit was filed against the appellant for eviction from the building and other consequential reliefs which was resisted by the appellant by raising various contentions. Issues in the suit were framed by the court and the case was posted to 26-8-1998 for trial. None of the advocates belonging to the firm of lawyers which was engaged by the appellant appeared in the court on the day because the advocates were on a strike called by the advocates' association concerned. As nobody for the appellant was present the court set the defendant ex parte and eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wait or to adjourn the case on that account. Time and again this 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. Vide U.P. Sales Tax Service Assn. v. Taxation Bar Assn. [1995] 5 SCC 716; K. John Koshy v. Dr. Tarakeshwar Prasad Shaw [1998] 8 SCC 624; Mahabir Prasad Singh v. Jacks Aviation [1999] 1 SCC 37 and Koluttumottil Razak v. State of Kerala [2004] 4 SCC 465. While concurring with Hon'ble Thomas, J., the other Hon'ble Judge of the Supreme Court Sethi, J. made observations, germane to the issue under question before this Tribunal. Generally strikes are anthiesis of progress, prosperity and development. Strikes by the professionals including the advocates cannot be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions. The services rendered by the advocates to their clients are regulated by a contract between the two besides statutory limitations, restrictions and guidelines incorporated in the Advocates Act, the rules made thereunder and rules of procedure adopted by the Supreme Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P.) Ltd. it was observed (SCC p. 40, para 2) "2. Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty-bound to insulate judicial functionaries within their territory from being demoralized due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open court." It was further held (SCC pp. 43-44 paras 16-18) '16. If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound itself in agreement with the submission of Shri M.N. Krishnamani, Senior Advocate that the courts were sympathizing with the Bar by not agreeing to dismiss the cases for default of appearance of the Striking advocates. The Hon'ble Judge expressed reservations with the observations of Thomas, J. that the courts had not been sympathizing with the Bar during the strikes or boycotts. Some courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the courts in the country have been impliedly sympathizers by not rising to the occasion by taking a positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. The Hon'ble Judge wrote further that it is not too late even now for the courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singh Case. Inaction will surely contribute to the erosion of ethics and values in the legal profession. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, the recall may be made subject to such conditions and under such observations as are deemed in accordance with legal observations mentioned above, esp. by the Hon'ble Apex Court, and which uphold the sanctity and status of the Hon'ble ITAT. Submitted. Sd. Sr. D.Rs." 5.1 Vide letter dated 21-1-2011, Shri Anadi Verma, Sr. D.R. submitted another set of Written Submissions. For the sake of convenience, we reproduce the same verbatim as under : "Sub. : Written Submission; synopsis and final arguments- May it Please Your Honour In continuation of the earlier written submission filed in this miscellaneous application on 24-9-2009,the following submissions is made further : 1. The appeals filed by the assessees relating to above said MAs. have been dismissed in default either through the application of the judgment in the case of Multiplan India Ltd. (38 ITD 320) (Delhi) or they have been decided in absence of the appellant and dismissed in default due to strike call for specific boycott of a particular Member (Judge) of the Tribunal. These are admitted facts and on record, and even in the MAs filed it has been admitted that the absence of the counsel was due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e). Strong reliance is placed on paras E to H of page 154 to paras A to F of page 155. In the case of Dharmendra Textiles Processors reported in 306 ITR 277 (SC) it has again been held that legislative casus omissus cannot be supplied by judicial interpretative process. In this regard strong reliance is placed on para 22 to para 25 of the judgment occurring on pages 301 and 302. In the instant case the language of rule 24 is plain and it is clear that the case of the appellant does not fall under rule 24. How to construe ex parte order? How then is the ex parte order to be construed? It is clear that this order passed by the Hon'ble Bench is an order within the confines of the very wide powers given to it under section 254 (1). Section 254(1) says that the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, "pass such orders thereon as it thinks fit." Opportunity was clearly provided to both the parties. The revenue was present on the date of hearing. The assessee through its AR deliberately chose not to present itself before the Bench for hearing. Under these circumstances Tribunal passed an order as it thought fit to pass. This ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DTR (2011) 98 (Delhi) (FB). The scope of section 254(2) has also been discussed in this judgment. It has been held that an order can be recalled in its Entirety if (ITAT) is satisfied that prejudice has resulted Attributable to Tribunal's mistake, error or omission. Is this the case here? Covered matter In the last hearing, judgment of Hon'ble ITAT, Jabalpur was submitted before the Hon'ble Bench in the matter of Additional Director MPSEB v. TRO. This case was on the issue of strike by the Bar through boycott of a particular court. In this case an application under section 254(2) of the assessee was dismissed ex parte in view of the strike by the Bar. It has been argued that the legal aspects detailed in this judgment are pertaining to section 254(2), so not applicable here. This is incorrect. We have to appreciate facts resulting in the ratio of the judgment. The ratio of the judgment is whether ex parte dismissal on account of non-prosecution of appeal or application in view of strike by the Bar is correct or not. The other aspect does not matter. What matters is that this was an issue which related to the Advocates Act, 1961 as well as context of dismissal of application. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinguishable on facts. Hence all these cases are distinguishable. Further none of the MAs are backed by an affidavit under rule 10 of Appellate Tribunal Rules, 1963. Hence the pleas thereon are ex parte statement of non-sworn facts and deserve to be ignored. The aspect of Multiplan applied cases or otherwise is of no significance since the MAs clearly indicate that non-prosecution of appeal was due deliberate abstinence of appearance. No reasonable cause thereof has been shown. Prayer 1. The MAs should be dismissed as non-maintainable in view of the legal position described in detail above since rule 24 does not apply. Section 254 (2) also does not apply. 2. Alternatively, if the above such prayer is not accepted and the Hon'ble Bench feels compelled to recall the orders then it may, subject to the approval of Hon'ble Bench, be subject to at least the following two conditions. (a) Award of punitive and exemplary costs under rule 32A of the Appellate Tribunal Rules, 1963. A minimum of Rs. 50,000 per case should be imposed, (b) The two detailed submissions given by the undersigned should be exhaustively discussed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lct the petitioner with the cost portion as he is innocent. Hence we issue notice to M/s. Das Gupta & Co., Lawyers of Delhi, to show cause why the petitioner shall not be permitted to realize the said cost amount from the said advocates. ** ** ** 10. But the fact remains that the appellant was set ex parte due to the absence of the appellant and his counsel in the court when the case was taken up for hearing. In the Special circumstances of this case we are inclined to set aside the ex parte order dated 26-8-1998, on some terms. ** ** ** 15. Therefore, we permit the appellant to realize half of the said amount of Rs. 5,000 from the firm of advocates M/s. B.C. Das Gupta & Co., or from any one of its partners. Initially we thought that the appellant could be permitted to realize the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them. Nonetheless we put the profession to notice that in future the advocate would also be answerable for the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Accountants. Shri Amit Shukla, Advocate, pointed out that in the case of Ramon Services (P.) Ltd. (supra), the Hon'ble Apex Court itself has held that whatever may be the punishment given to the striking lawyers, the litigants should not suffer because of such strike, the ex parte order should be recalled. He also relied on the decision of the Hon'ble Apex Court in the case of Mangi Lal v. State of Madhya Pradesh [1994] 4 SCC 564. Shri Amit Shukla, Advocate, ld. Counsel for the assessee also referred to the judgment of the Hon'ble jurisdictional High Court in the case of Prayag Udyog (P.) Ltd. v. ITAT [2000] 245 ITR 288/[2001] 118 Taxman 68 wherein it was held that :- "An appeal under the Income-tax Act, 1961, has to be decided on the merits and can not be dismissed for default. A litigant should not be penalized for the default of his counsel." Reliance was placed on behalf of the applicants on the following case laws : (i) Tribhuwan Kumar v. CIT [2007] 294 ITR 401 (Raj.) (ii) Rajendra Prasad Borah v. ITAT [2008] 302 ITR 243/174 Taxman 568 (Gau.) (iii) Anil Kumar Agrahari v. CIT [2010] 323 ITR 260 (MP). 6.2 As regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the merits on question of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. Rule 24 of the Appellate Tribunal Rules, 1946, as amended in 1948, insofar as it enables the dismissal of an appeal before the Income-tax Appellate Tribunal for default of appearance of the appellant, clearly comes into conflict with section 33(4) and is therefore ultra vires." 6.5 Shri Amit Shukla, Advocate, ld. Counsel for the assessee submitted that following the above judgment of the Hon'ble Supreme Court in the case of S. Chenniappa Mudaliar (supra), it was held in a series of judicial pronouncements that rule 24, as the said Rule stood at the relevant time, was contrary to inherent power and jurisdiction of the Tribunal to set aside the ex parte order in the interest of justice. 6.6 In view of the above, Shri Amit Shukla, Advocate, ld. Counsel for the assessee submitted that the only conclusion that emerges is that- (i) Tribunal has inherent power and jurisdiction to set aside the ex parte order passed by it earlier, in the interest of justice; (ii) Rule 24, as it existed before being substituted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005] 275 ITR 247 (All.), (iii) Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466/165 Taxman 307 (SC), (iv) Lachman Dass Bhatia Hingwala (P.) Ltd. v. Asstt. CIT [2011] 330 ITR 243/196 Taxman 563/[2010] 8 taxmann.com 301 (Delhi) (FB), (v) CIT v. K.L. Bhatia [1990] 182 ITR 361/51 Taxman 436 (Delhi), Ms. Deeksha Suri v. ITAT [1998] 232 ITR 395/100 Taxman 573 (Delhi), Karan & Co. v. ITAT [2002] 253 ITR 131/[2001] 118 Taxman 473 (Delhi), J.N. Sahni v. ITAT [2002] 257 ITR 16/123 Taxman 569 (Delhi) and Smt. Baljeet Jolly v. CIT [2001] 250 ITR 113/[2000] 113 Taxman 38 (Delhi) - overruled. In view of the above, it was submitted by Shri Rakesh Garg, Advocate and Shri Amit Shukla, Advocate, the ld. Counsels for the assessee that in the interest of justice ex parte orders deserve to be recalled for the purposes of adjudicating upon the grounds that remained undecided even by treating the applications to be covered by the provisions contained in section 254(2) of the Act. 7. We have carefully considered the exhaustive written submissions as well as the arguments advanced by both the parties at the time of hearing. We have perused the materials available on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were convicted and sentenced as per the judgment dated 23-1-1986 as under. Rigorous imprisonment for one year each under section 147 of the Indian Penal Code, rigorous imprisonment for 5 years and fine of Rs. 500 each, in default of payment of fine, rigorous imprisonment for two months under section 307 of the Indian Penal Code. Both sentences were directed to run concurrently. The appellant filed Criminal Appeal No. 117 of 1986 in the High Court. On 27-8-1993 the appeal came up before D.M. Dharmadhikari, J. It was adjourned since the lawyers at Jabalpur were on strike on that day. Thereafter the matter was listed on 11-10-1993. On that day also the lawyers were on strike. Therefore, the appeal was dismissed by the Hon'ble Madhya Pradesh High Court for want of prosecution. The appellants in that case preferred an application under section 482 Code of Criminal Procedure for restoration of the appeal, which was dismissed by the Hon'ble High Court on 26-11-1993. The appellant preferred the Special Leave Petition before the Hon'ble Supreme Court and the Hon'ble Supreme Court observed that the fact is that the Advocates were on strike justifiably or otherwise. Why should the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding of such opinions can hardly be characterised as an unruly attitude on the part of the advocates. Such holding of opinions, nor again, would either obstruct or disturb the judiciary. If the learned Judge had the slightest compunction he should have rescued himself. 8. Therefore, we set aside the same and direct the appeal be restored to file and heard on merits." From the above it is clear that whatever may be punishment given to the striking Lawyers, the litigants should not suffer because of such strike, the ex parte order should be recalled. In that view of the matter, strike by the Advocates or the reason for strike is not an issue before us. Therefore, no findings are being given as to whether strike by Advocates and Chartered Accountants during the relevant period was justifiable or otherwise. 8. Now, we will consider the arguments advanced before us by both the parties regarding duties and conduct of the Lawyers and Chartered Accountants when they are representing the assessee before various forums including Income-tax Appellate Tribunal. If we look into the provisions of the Advocates Act and the Legal Practitioners Act, it is clear that the position of Advocates is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in number of judgments that absenting from Courts on a particular day in pursuance of a concerted movement on the part of the Lawyers to boycott a Court amounts to professional misconduct. In the case of S.J. Choudhary v. State (Delhi Administration) [1984] 1 SCC 722, the Hon'ble Supreme Court observed that it is the duty of every Advocate, 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. Even the various High Courts of the country have condemned the strike or boycott of Courts by the Lawyers. It would be fruitful to refer to the decision of the Hon'ble Punjab and Haryana High Court in the case of S. Maharaj Baksh Singh v. Charan Kaur AIR 1987 Punj. & Har. 213. In this case, the Hon'ble High Court observed that- "Counsel abstaining from appearing in Court cannot, therefore, but be construed as being contrary to the manner and norms of this great and noble profession, Law, as Justice Holmes so aptly put it, is 'a calling of thinkers'. The weapon of the Bar has thus always been reason, and reason is never of more telling effect than when express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in the case of Mangi Lal (supra). In that case also, the Hon'ble Supreme Court has held that whatever may be the punishment given to the striking lawyers, the litigant should not suffer because of such strike, the ex parte order should be recalled. 10. Now, the question before us is whether the ex parte orders passed on different dates in above appeals should be recalled or not, if recalled, then under which provision of law or the Rules? 10.1 Firstly, we will refer to rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963, which reads as under : "Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent : Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able opportunity of being heard." 10.4 Section 254(1) of the Act provides that the Tribunal may, after giving both the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit. In the instant case, it is clear that no opportunity of being heard was provided to the assessees/applicants and the appeals were dismissed for want of prosecution. In fact, the Tribunal has not decided the appeals on merits. Section 254(2) of the Act provides that the Tribunal may, at any time, within four years from the date of order with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment if the mistake is brought to the notice by the assessee or the Assessing Officer. 10.5 In the case of CIT v. Keshav Fruit Mart [1993] 199 ITR 771 (All.), the Hon'ble jurisdictional High Court held as under : "Omission to consider a ground raised in the memorandum of appeal before the Income-tax Appellate Tribunal is a mistake apparent from the record and the Tribunal would be justified in setting aside its order passed without doing so." 10.6 Shri Rakesh Garg, Advocate and Shri Amit Shukla, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Tribunal. The Tribunal was, therefore, perfectly justified in recalling the order in exercise of powers under section 254(2) of the Act." (iii) In the case of Honda Siel Power Products Ltd. (supra), the Hon'ble Supreme Court held as under : "'Rule of precedent' is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. 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. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake; it has accordingly rectified its order. In our view, the High Court was not justified in interfering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view the ratios laid down by the Hon'ble Supreme Court in the cases of Ramon Services (P.) Ltd. (supra) and Mangi Lal (supra) and also the decisions cited in paras 10.7(i) to 10.7(iv), we set aside the orders of the Tribunal passed in ITA No. l67 (Luc.)/2006 dated 31-10-2007, ITA Nos.575 & 576 (Luc.)/2005 dated 30-10-2007,ITA No. 149 (Luc.)/2008 dated 22-11-2007, ITA No. l361 (Alld.)/1997 dated 22-11-2007, ITA No. l372 (Alld.)/1997 dated 19-11-2007, ITA No. l371 (Alld.)/1997 dated 19-11-2007, ITA No. l326 (Alld.)/1997 dated 19-11-2007, ITA No. 262 (Alld.)/1999 dated 13-12-2007, ITA No. l387 (Alld.)/1997 dated 30-10-2007, ITA No. l388 (Alld.)/1999 dated 30-10-2007, ITA No. 241 (Luc.)/2007 dated 30-10-2007, ITA Nos. 174 (Alld.)/1997, 1623 (Alld.)/1995 and 175 (Alld.)/1997 dated 8-11-2007, ITA Nos. 344 & 345 (Alld.)/1999 dated 30-10-2007, ITA No. 53 (Luc.)/2007 dated 30-10-2007, ITA No. 435 (Luc.)/2007 dated 22-11-2007 and ITA No. 646 (Luc.)/2005 dated 5-11-2007 and restore the appeals under section 254(2) of the Act, for hearing on merits subject to the condition that the applicants/assessees in each Miscellaneous Application pay a cost of Rs. 1,500. The applicants/assessees will sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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