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TMI Blog2015 (2) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... n of delay in filing the return remained pending before the Commissioner. He, therefore, sent a reminder on August 29, 2008, and stated as under : "I have filed an application for condonation of delay in filing the return of income for the assessment year 2001-02 which was beyond the time limits of section 139(1) of the Income-tax Act 1961. Simultaneously the return of income was also filed in Ward-4, Nadiad claiming a refund of Rs. 16,589 relevant to Acknowledgment No. 2241011266, dated November 17, 2003. The matter is pending till date only because the application under section 119(2)(b) filed on November 16, 2003 is pending with the Commissioner of Income- tax-II, Baroda. I am a poor illiterate villager knowing nothing on Income-tax matters and it would be an act of kindness if the matter is disposed of in my case with necessary directions to the Income-tax Officer concerned considering the fact that refund is pending for more than four years." 3. The Commissioner finally passed an order on February 21, 2009, and rejected the petitioner's application under section 119(2) of the Act. He observed that the petitioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax under reference here. A strong note of displeasure is conveyed to him as a cautionary measure." 5. The respondent thereupon filed an appeal before the Income-tax Appellate Tribunal. The Tribunal, by an order dated May 15, 2012, dismissed such appeal holding that the same was not maintainable since the order passed by the Commissioner under section 119(2)(b) of the Act was an administrative order. The respondent filed application for rectification before the Tribunal. The Tribunal on such application referring to the decision of this court dated May 2, 2013, in Special Civil Application No. 8003 of 2013 allowed the rectification application in part making the following observations : "3. We have heard the rival submissions and perused the material on record. From the order dated January 5, 2009, passed under section 119(2)(b) we find that the application of the assessee was rejected for the reason that the return was filed almost three years from the due date. The assessee's submission is that the delay was not of three years but of eight months and seventeen days. It was further the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l nullified the original order of the Commissioner and directed him to pass a fresh order after hearing the respondent. The Tribunal could have done this if the appeal was maintainable. When the Tribunal was of the opinion that the appeal was not maintainable, there was no question of giving such a direction, particularly in the order on application for rectification, the Tribunal did not come to any different conclusion. In other words, without holding that the appeal was maintainable, the order under challenge could not have been interfered with. This petition, however, involves peculiar facts. The respondent- assessee, who was a labourer and retired more than 10 years back, did not have any taxable income under normal circumstances. He had perhaps in his entire life never filed any return of income. As a part of golden hand shake, he received a lump sum amount of Rs. 1,30,000. The employer deducted a hefty tax at source of Rs. 33,949. It appears that he was entitled to refund of such tax deducted at source. Under such circumstances, he filed his return for the assessment year 2000- 01. Such return was delayed. Such return is ignored on the ground that no valid return is filed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary orders. Therefore, as such and without further entering into any technicality, it can be said that the learned Tribunal has set aside the order passed by the Commissioner and has remanded the matter to the Commissioner to pass a fresh order. Therefore, what is required to be considered is, whether the learned Tribunal is justified in passing the impugned order ? (5.5) As stated hereinabove, as such the learned Tribunal dismissed the appeal as not maintainable and as such rightly held that the appeal was not maintainable. Once the appeal itself was held to be not maintainable, it is not appreciable how the rectification application in an appeal which was held to be not maintainable, can be said to be maintainable. Under the circumstances, as such the rectification application in the appeal which was held not maintainable, ought not to have been entertained by the learned Tribunal, unless in a rectification application it was submitted that the learned Tribunal has committed an error in holding that the appeal is not maintainable and the learned Tribunal takes the view that the appeal was maintainable. In the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner on his application under section 119(2)(b) of the Act approached before this court, we would have in all probabilities directed the Commissioner to take a fresh decision. Considering these facts arising from the record, we refuse to exercise our discretionary writ jurisdiction. 9. Before closing however, we cannot lose sight of one important aspect of the matter, viz., despite our earlier order dated May 2, 2013, being pointed out to the Tribunal in this case, the Tribunal still exercised its power of rectification and remanded the proceedings to the Commissioner. This, in our opinion, was a serious error. When this court had, in the order dated May 2, 2013, portion of which is reproduced in this order, had held that the Tribunal was correct in first order holding that the Commissioner's order under section 119(2)(b) was not appealable before the Tribunal and that, therefore, such order did not call for rectification. The Tribunal referring to and relying on the same judgment of the respondent could not have repeated the same error in law. In any case, this position had been made beyond any controversy by a subsequent judgment of this court November 25, 2013 in case of CI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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