TMI Blog2006 (7) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Tribunal has relied on the decisions of CIT v. D.P.F. Textiles Ltd. [ 1999 (7) TMI 37 - MADRAS HIGH COURT] , Ahmedabad Electricity Co. Ltd. v. CIT [ 1992 (4) TMI 29 - BOMBAY HIGH COURT] , Gauri Sahai Ghisa Ram v. CIT[ 1979 (2) TMI 53 - ALLAHABAD HIGH COURT] and Chhat Mull Aggarwal v. CIT [ 1978 (11) TMI 58 - PUNJAB AND HARYANA HIGH COURT] to come to the conclusion that the assessee would have a right to appeal even if additions were made on the concessions made by the assessee. We also find that in the impugned order, the Tribunal has relied on the decision of the Supreme Court in Dr. Mrs. Renuka Datla v. CIT [ 2002 (12) TMI 6 - SUPREME COURT] in which it has been held that if an appeal is pending, it is not for the designated authority to question the possible outcome of the appeal, etc., nor for the High Court to hold that the appeal was sham, ineffective or infructuous. Hence, it appears to us that in the impugned order on the application u/s 254(2) of the Act, the Tribunal has reconsidered the contentions of learned counsel for the parties raised at the time of hearing of the appeal and has reversed its earlier finding in the appellate order dated November 26, 2001, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable and issued certificate on 25th Feb., 1999 under Section 90(1) of the Finance (No. 2) Act, 1998 setting forth therein the particulars of the tax arrears and sum payable towards full and final settlement of the tax arrears and the assessee paid an amount of Rs. 13,72,700 by challan as directed in the said certificate and intimated the fact of such payment to the designated authority. The designated authority then issued a certificate for full and final settlement of tax arrears under Section 90(2) of the Finance (No. 2) Act, 1998 in Form No. 3 on 28th April, 1999. 4. The Tribunal, after hearing learned Counsel for the parties and after referring to the authorities cited by learned Counsel for the parties held in its order dt. 26th Nov., 2001 [reported as Malwa Texturising (P) Ltd. and Ors. v. Asstt. CIT (2002) 77 TTJ (Ind) 995 .] that notwithstanding the provisions of Sub-section (4) of Section 90 of the Finance (No. 2) Act, 1998, it will have to decide the preliminary question raised by the Department that the appeal filed by the assessee was not maintainable. In the order dt. 26th Nov., 2001, the Tribunal, however, did not accept the contention of the Department that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , entitling the Tribunal to rectify their main order passed in appeal? 7. Mr. R.L. Jain, learned senior counsel for the appellant- Department submitted that under Section 254(2) of the Act, the Tribunal has the power only to rectify any mistake apparent from the record but by the impugned order, the Tribunal has not just corrected a mistake apparent from the record, but has reconsidered the contentions of the learned Counsel for the parties, which were raised at the hearing of the appeal and passed a fresh order holding in effect that the appeal though competent has to be treated as dismissed in view of the order/certificate issued by the designated authority under Section 90(2) of the Finance (No. 2) Act, 1998. 8. Mr. Chaphekar, learned senior counsel for the assessee, on the other hand, submitted that the Tribunal had taken an incorrect view of the law in its appellate order dt. 26th Nov., 2001 and had lost sight of the fact that under Sub-section (4) of Section 90 of the Finance (No. 2) Act, 1998, once the designated authority issued an order or a certificate under Sub-section (2) of Section 90 of the Finance (No. 2) Act, 1998, the appeal stood withdrawn by operation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le these appeals or not and the dispute is not regarding the KVSS and effect thereof. Therefore, we will proceed to analyse and adjudicate the preliminary objections raised by the Revenue. Thus, it will appear from the findings of the Tribunal in the appellate order dt. 26th Nov., 2001 quoted above that the Tribunal was of the view that the Revenue had raised the preliminary objection on the issue whether the assessee was competent to file the appeal or not and that the dispute before the Tribunal was not regarding the KVSS and the effect thereof and therefore it will have to proceed to analyse and adjudicate the preliminary objections raised by the Revenue. The aforesaid view taken by the Tribunal may have been an erroneous view as contended by the assessee but the error if any in the order of the Tribunal could be corrected in an appeal before the High Court and not on an application under Section 254(2) of the Act which is confined to only rectify the mistakes apparent from the record. 11. As a matter of fact, we find that in the impugned order dt. 16th Jan., 2004 of the Tribunal on the application filed by the assessee under Section 254(2) of the Act that the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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