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TMI Blog2004 (5) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was numbered as Income-tax Appeal No. 28 of 2000. The said appeal was disposed of vide order dated August 3, 2001, as under: "Mr. Mittal states that the appellant has filed an application for rectification of the order dated October 29, 1999, before the Income-tax Appellate Tribunal. This application, according to counsel, has been filed under section 254(2) of the Income-tax Act, 1961. In view of the pendency of the application for rectification, counsel does not want to press this appeal and wants to pursue the petition pending before the Tribunal. Mr. Sawhney, appearing for the Revenue, has no objection to the withdrawal of the appeal. Allowed as prayed for. Dismissed as withdrawn. No costs." A perusal of the above shows that the assessee did not press the said appeal and had withdrawn it to pursue its application under section 254(2) of the Act. No liberty was sought nor granted to the assessee to file a fresh appeal against the same order. Counsel for the appellant was asked to explain as to how, in the absence of any liberty granted to the appellant by this court to file a fresh appeal against the order dated October 29, 1999, a second appeal against the same wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. The High Court by the order dated April 24, 1992, dismissed the petitions. These appeals by way of special leave are against the judgment of the Division Bench of the High Court in the writ appeals, order dismissing the review petitions and the order dismissing the petitions which were filed in terms of the liberty granted by this court. 6. Learned counsel for the contesting respondents have strenuously contended that the special leave petitions against the judgment of the Division Bench of the High Court in writ appeals, having been rejected by this court, the High Court judgment has achieved finality and, as such, these appeals are liable to be dismissed on that short ground. We do not agree with learned counsel. This court while rejecting the petitions as withdrawn, granted liberty to the petitioner to approach the High Court and point out the case which was sought to be pleaded before this court. In other words, this court prima facie found the contentions of the petitioner to be plausible and, as such, granted liberty to raise the same before the High Court. The High Court heard the parties at length and passed a reasoned order running into 16 pages. In the facts and ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Upadhyay and Co. v. State of U.P., AIR 1999 SC 509, while explaining the principle underlying rule 1 of Order 23 of the Code of Civil Procedure, the Supreme Court at page 512 has observed as under: "'We are of the view that the principle underlying rule 1 of Order 23 of the code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under article 226 of the Constitution once again. While the withdrawals of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der which is apparent from the record warranting rectification under section 254(2) of the Act. Counsel for the appellant has not been able to controvert this factual position. He has not drawn our attention to any material on record to show that such contention had actually been raised before the Tribunal when the appeal was heard originally. The appeal was decided on October 29, 1999, by a Bench of the Tribunal consisting of Vice President, Mr. R.M. Mehta, and Shri B.S. Saluja, Judicial Member. The application under section 254(2) of the Act was filed after almost two years on June 11, 2001, when the constitution of the Bench had undergone a change. If the assessee thought that the contentions raised by it before the Bench had not been taken note of, it was incumbent upon it to bring it to the attention of those very Members who had heard the appeal immediately on receipt of the order when the matter was still fresh in their minds. For this purpose, we may refer to the observations made by the apex court in Roop Kumar v. Mohan Thedani [2003] AIR SCW 2425; AIR 2003 SC 2418. In para 11 of the judgment, it has been observed as under: ".... statements of fact as to what transpired ..... X X X X Extracts X X X X X X X X Extracts X X X X
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