TMI Blog2015 (4) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... even of the higher Court. Only when the assessee or the Assessing Officer calls upon the Tribunal to undertake an exercise which is not permissible within the meaning of section (2) of section 254 that the Tribunal can rely on the principle of judicial propriety or its reluctance or refusal to take upon itself the powers of the higher Court of Appeal. We can understand if the Tribunal had passed an order after considering the application made by the peritioner-assessee on its merits and in accordance with law. However, the refusal of the Tribunal to go ahead and reject the application only on the ground that the petitioner-assessee has invoked the appellate powers of higher Court cannot be sustained. That is contrary to the plain langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us, it was pointed out that there are certain mistakes and which need to be rectified. That application and copy of which has been annexed to this Writ Petition paper book at page 119 to 127 requests the Tribunal to correct such errors. The ultimate prayer therein is that the order on 16th January, 2013 in the above Income Tax Appeal suffers from mistakes which are apparent and deserve to be rectified. 4. It is this application filed on 28th May, 2013 which was placed before the Tribunal. The Tribunal passed the impugned order which reads as under: The assessee has moved an instant Miscellaneous Application (MA) against the order of the ITAT in ITAT No.3969/Mum/2012. 2. At the time of hearing, the AR for the assesseeappellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss such orders thereon as it thinks fit. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer: Provided further that any application filed by the assessee in this subsection on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees. 7. Dr. Shivram further submits that merely because from the initial order of the Tribunal and passed under subsection (1) of section 254 the aggrieved Assessee has filed the Appeal to the High Court and which is pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore this Court and is pending. Dr. Shivram submits that this understanding of the legal provision by the Tribunal as reflected in the impugned order ought to be immediately setright and corrected or the Tribunal would perpetuate the above view even in further matters. 8. Mr. Pinto, the learned counsel, appearing on behalf of the revenue submits that the application of the present nature as is filed by the petitionerassessee cannot be granted for it seeks review and recall of the initial order. Therefore the view taken by the Tribunal is neither erroneous nor perverse and the petition deserves to be dismissed. 9. After hearing both sides and perusing the two legal provisions, namely, under section 254 as reproduced above, and section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eek a full remedy similar before two authorities and in particular where the issue is pending for admission before higher forum. 10. The least that can be said about the understanding of the legal provision by the Tribunal is that it is ex facie incorrect and erroneous. Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments. That in a given case would not only save precious judicial time of the Tribunal bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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