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2015 (10) TMI 14 - ITAT CHENNAI

2015 (10) TMI 14 - ITAT CHENNAI - TMI - Recall the orders after expiry of four years by tribunal either on its own or on the application filed by the Revenue - Held that:- Tribunal on its own passed an order after referring to the latter judgment of the Apex Court in Electronics Corporation of India Ltd. [2011 (2) TMI 3 - Supreme Court] recalling its earlier order and restored the appeals on file. We find from the records that the Revenue filed applications on 15.1.2013 praying for the recall of .....

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er may be the reason, four years period as provided u/s 254(2) for rectification has expired even on the date of filing of applications by the Revenue. In all fairness, this Tribunal ought to have issued notice to the assessee after taking the applications filed by the Revenue on record. It is unfortunate that the Tribunal has not issued any notice and suddenly passed the order. This Tribunal is of the considered opinion that when the applications filed by the Revenue were not taken on file and .....

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me Tax (Appellate Tribunal) Rules, 1963 would come into operation. One may say that Rules 24 and 25 are applicable only to appeals and not to the miscellaneous petitions, the fact remains that the order was passed by the Tribunal suo motu recalling its earlier orders therefore, for all practical purposes the order is passed without giving any opportunity to the assessee. Therefore, this Tribunal is of the considered opinion that there is gross violation of principles of natural justice. Therefor .....

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For The Respondent : Shri Shaji P. Jacob, Addl. CIT ORDER PER N.R.S.GANESAN, JUDICIAL MEMBER The assessee filed the present miscellaneous petitions to recall the order of this Tribunal dated 18.4.2013. 2. Shri C. Naresh, ld. Representative for the assessee submitted that this Tribunal by orders dated 21.1.2008 and 20.8.2007 dismissed the appeals filed by the Revenue on the ground that COD approval was not obtained for prosecuting the appeals before this Tribunal. According to the ld. Representa .....

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a query from the Bench, whether the Revenue filed any application to recall the earlier orders of this Tribunal, the ld. Representative clarified that he was not aware of anything and there is no reference in the order of the Tribunal about filing of miscellaneous petition by the Revenue. The Tribunal, it appears that, on its own motion passed the order setting aside its earlier orders and restored the appeals. 3. The first contention of the assessee is that this Tribunal cannot recall the order .....

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assessee. According to the ld. Representative, after expiry of four years from the date of the order, the Tribunal has no power to pass an order u/s 254(2) of the Act by recalling its earlier order. The ld. Representative has also placed his reliance on the unreported judgment of Kerala High Court in CIT vs State Bank of Travancore in R.P. No.895 of 2010 dated 30.11.2011, the copy of which is filed by the assessee and submitted that the Apex Court in Electronics Corporation of India Ltd vs Unio .....

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not be ignored. The Kerala High Court further found that the approval granted or declined by the COD could be gone into by the appellate court in any case pending or disposed of. The application of the Revenue to restore the appeal on the basis of the subsequent judgment was rejected by the Kerala High Court. Referring to the decision of Delhi Bench of this Tribunal in DCIT vs Airport Authority of India [2013] 143 ITD 319, the ld. Representative submitted that when the COD approval was denied pr .....

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rder of the Tribunal cannot be recalled. According to the ld. Representative, it was not the case of the Revenue that the application filed by the Revenue for COD clearance was pending when the appeal was dismissed by this Tribunal. Referring to another judgment of the Madras High Court in State Trading Corporation vs Commissioner of Customs, W.A.No.651 of 2015, dated 1.6.2015, the ld. Representative submitted that on identical set of facts, the Madras High Court found that the W.A cannot be res .....

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the appeal. Therefore, the Tribunal found that its earlier orders dismissing the appeals need to be recalled. Accordingly, the orders were recalled. On a query from the Bench whether the Revenue has filed any application for recall of the earlier orders of the Tribunal, the ld. DR fairly submitted that he is not aware of any application filed by the Revenue. The fact remains that the Tribunal recalled its orders. On a query from the Bench how the Tribunal can recall its orders after expiry of f .....

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ribunal s order, COD approval was granted. Under such circumstances, whether the limitation imposed u/s 254(2) would have operated or not is the most crucial aspect to be considered for deciding the miscellaneous petition. The Tribunal specifically found that after COD approval was given, the Tribunal could not, in the interest of justice, refuse to recall its order even after four years from the date of the impugned order. The ld. DR has also placed his reliance on the judgment of the Madras Hi .....

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pex Court in Electronics Corporation of India Ltd. recalling its earlier order and restored the appeals on file. We find from the records that the Revenue filed applications on 15.1.2013 praying for the recall of the Tribunal orders on the ground that COD clearance is no longer required in view of the judgment of the Apex Court in M/s Electronics Corporation of India vs UOI (Civil Appeal No.1883 of 2011). After receiving the applications from the Revenue the same was not numbered and even taken .....

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