TMI Blog2016 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court in Commissioner of Income Tax vs. Tata Chemicals Ltd. [2002 (4) TMI 42 - BOMBAY High Court] an appeal on an issue not urged before the Tribunal is not maintainable. However, we have expressed our view as it is a pure question of law and identical issues are likely to arise before the Tribunal. - Income Tax Appeal No. 2323 of 2013 - - - Dated:- 6-1-2016 - M. S. Sanklecha And B. P. Colabawalla, JJ. For the Appellant : Mr. Tejveer Singh For the Respondent : Mr. Ashok Patil ORDER P. C. 1. This Appeal under Section 260A of the Income Tax Act, 1961 (the Act) challenges the order dated 8th February, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order is in respect of Assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such approval of the COD is obtained later and such application for recall is in accordance with law. 4. Thereafter on 17th February, 2011, the Supreme Court in Electronics Corporation of India Ltd. v/s. UOI 332 ITR 58 held that the approval of COD is no longer required to prosecute a dispute amongst the departments of the Government and Public Sector undertakings inter se. 5. Consequent to the above, in 2012 the Appellant-Revenue filed a miscellaneous application before the Tribunal for recall of the order dated 6th November, 2007 dismissing its appeal. The Tribunal by the impugned order dated 8th February, 2013 dismissed the application for recall of the order dated 6th November, 2007 as being beyond the period of limitation provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before it filed its appeal for A.Y. 1996-98 to the Tribunal. This inspite of the COD mechanism being very much in force at that time. The recall of its earlier orders in respect of ONGC by the Supreme Court in the case of ELECTRONICS CORPORATION OF INDIA LTD only does away with the practice in view of the changed circumstances. The necessity of obtaining approval from COD which was in practice at the relevant time cannot be done away with on the ground that the Supreme Court has now held that the practice needs to be discontinued. However we are conscious that the above decision was rendered in the exercise of our writ jurisdiction where the conduct of a party also becomes a relevant factor and here we are dealing with a statutory ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the prescribed form and he informed us that it was in the prescribed form. Therefore, on the aforesaid facts, no occasion to exercise powers under Rule 12 of the ITAT Rules can arise for either the rejection or return of the memorandum of appeal. This is in fact not done. 10. However, the Revenue while not disputing the above position yet urge that the order dated 6 November 2007 dismissing its appeal passed by the Tribunal purportedly under Section 252(1) of the Act is in effect and substance an order passed under Rule 12 of the ITAT Rules. We are unable to understand how Rule 12of the ITAT Rules can have any application, for simple reason that the sine quo non for its application is that the memorandum of appeal is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amending its memorandum of appeal. This has also not been done by the Appellant-Revenue. In the absence of such an application, the appellants before the Tribunal would be free in cases where the memorandum of appeal is rejected under Rule 12 of the ITAT Rules to file/ represent a competent appeal long after the period of limitation to file an appeal has expired from the order of the lower authority even after excluding the period when the appeal was first filed and rejected under Rule12 of the ITAT Rules. This could never be the objective as it would result not only in stale issues being reactivated and disrupting finality acquired to quasi judicial orders by passage of time. Consequently, no fault can be found with the impugned order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case the Supreme Court order in Electronics Corporation (supra) has done away with such a requirement stands on the same footing, is, in our view not correct. In any case whether such an application for recall of an order on the basis of the COD after four years from an order of the Tribunal dismissing the appeal is sustainable is not an issue arising for our consideration and therefore not being dealt with in these facts. 13. Be that as it may, we may point out that the issue as raised in question viz. inapplicability of Section 254(2) of the Act to the application for recall and the applicability of Rule 12 of ITAT Rules to such an application was not an issue urged by the Revenue before the Tribunal, thus not considered by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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