TMI Blog2013 (12) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and the non-consideration of the same, constitutes a mistake apparent from record within the meaning of section 254(2) of the Act - Following CIT vs. K. M. Sugar Mills (P.) Ltd. [2004 (8) TMI 59 - ALLAHABAD High Court] - An omission to consider the Ground, which appears in the Memorandum of Appeal filed by the assessee, is a mistake apparent from record within the meaning of section 254(2) of the Act - It is justified to recall the order of the Tribunal - Decided in favour of assessee. - MA No. 30/PN/2012 (Arising out of ITA Nos. 104 to 110/PN/2011) - - - Dated:- 11-12-2013 - Shri G. S. Pannu And Shri R. S. Padvekar,JJ. For the Appellant : Mr. (Dr.) Vinay Karnawat For the Respondent : Mrs. Shailaja Rai ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law. In view of this the assessments completed by the AO are illegal and without jurisdiction." 4. The aforesaid Ground of Appeal No.1 challenging the initiation of proceedings u/s 147/148 for assessment years 1997-98 to 2002-03 has been adjudicated by the Tribunal by way of para 7 of its order dated 30.03.2011 (supra). The Tribunal dismissed the said Ground for the reason that the same was not pressed by learned counsel during the course of hearing. 5. Before us, the appellant, appearing in person has pointed out that he had not withdrawn the said Ground and not even accorded permission to his the then Counsel to withdraw the same as the same was never asked for from him. In this connection, the petitioner further submitted that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiation of proceedings u/s 147/148 of the Act has been dealt with by the Tribunal on a misconception, as emerging from the affidavit filed by the appellant petitioner in the course of hearing before us. It is a trite law that dispensation of justice should not suffer on account of a fault which is not attributable to an assessee-subject. The bonafides of the averment made by the appellant petitioner are not assailed before us. Considering such peculiar circumstances of the case, in our considered opinion, it would merit indulgence u/s 254(2) of the Act to hold that the Ground of Appeal No.1 was dismissed by the Tribunal on the basis of a wrong plea made on behalf of the assessee and therefore it constitutes an error within the meaning of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee pointed out that Tribunal affirmed the observations of the CIT(A) which were factually wrong. In this connection, reference was made to para 5 (xi) of the order of CIT(A) wherein reference was made to Annexure- A of the assessment order stating that the impounded bill book No. 10 showed total receipts of Rs.1,70,619/- as against receipts recorded in the cash book of Rs.51,505/- only. In this connection, it was point out with reference to the Annexure- A of the assessment order that the total receipts of impounded bill book No.10 mentioned therein is Rs.89,245/- and not Rs.1,70,619/-. Therefore, according to him the estimation made by the CIT(A) and which has been affirmed by the Tribunal is on a wrong basis and therefore the same co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT vs. Ramesh Chand Modi, 249 ITR 323, an omission to consider the said Ground, which appears in the Memorandum of Appeal filed by the assessee, is a mistake apparent from record within the meaning of section 254(2) of the Act and therefore we deem it appropriate to recall the order of the Tribunal dated 30.03.2011 (supra). 12. In view of the aforesaid discussion, the order of the Tribunal dated 30.03.2011 (supra) is recalled and the captioned appeals of the assessee are re-instituted for adjudication afresh on merits. Accordingly, the Registry is directed to post the captioned appeals of the assessee in due course before the regular Bench after issuance of notice of hearing to both the parties. 13. In the result, the Miscellaneous App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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