TMI Blog2017 (2) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be treated to be an order passed in appeal by Tribunal but where order passed in appeal is recalled, it is an order passed in appeal and, therefore, in our view, appeal would be maintainable. Aforesaid judgment of Madras High Court also does not help Assessee in this case. Aforesaid judgment shows that an appeal under Section 260A would lie against an order of Tribunal if a substantial question of law has arisen and for that purpose it would not be material whether it is a judgment deciding appeal or otherwise. Moreover, if an order is passed on an application under Section 254(2) so as to recall the judgment of Tribunal which is otherwise final and referable to Section 254(1) and (4), it would be an order where against appeal would lie under Section 260A but the pre-condition is that there must have been arisen a substantial question of law. In taking the above view we are fortified with some authorities, as may be referred, hereinbelow. In view of above discussion we are of the view that ITA filed against judgment and order dated 05.12.2008 passed under Section 254(2) recalling orders dated 18.07.2008 and 21.09.2007 is maintainable. - INCOME TAX APPEAL No. - 35 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/Luc/2005 and was admitted on following substantial question of law: Whether Income Tax Appellate Tribunal has erred in law in upholding the order passed by Commissioner of Income Tax (Appeals) allowing exemption under Section 11 of I.T. Act by holding that there has not been any infringement of Section 13 of Act by the Assessee. 5. The brief facts giving rise to both appeals are that Respondent-Assessee, namely, M/s U.S. Srivastava Memorial Educational Society (hereinafter referred to as the Society ) is an educational Society registered under Section 12-AA of Act, 1961. Sri K.B. Lal is the Secretary of Society and he has one daughter, namely, Pallavi Lal and wife, namely, Smt. Indu Lal. 6. During the course of assessment of year 2000-01, K.B. Lal, Trustee of Society, stated that his only source of income including remuneration received from Society is ₹ 5000/- per month, since 1997-98, which was increased subsequently to the tune of ₹ 7500/- per month. According to K.B. Lal, he neither owned a house nor had any bank balance nor had any Fixed Deposit. In Assessment Year 2000-01. Trustee had received loan of ₹ 40-50 lacs from Member of Parliament, Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd by Trustee, K.B. Lal that family is involved in the work of Trust and getting honorarium of ₹ 7500/- per month by K.B. Lal, ₹ 1000/- per month by Smt. Indu Lal, wife and ₹ 2000/- per month by Pallavi Lal, daughter. This explanation was not accepted by AO and on this count AO found that Trustee is using property of Trust for his own benefit in violation of provisions of Section 13 of Act, 1961. Being not satisfied with explanation submitted by K.B. Lal, AO passed order dated 25.05.2004 stating therein that since there had been a definite violation of provisions of Section 13, benefit of Section 11 is not available to Assessee for this year. By the said order, AO charged interest on total income of ₹ 16,75,791/- and issued notice of demand and penalty and also penalty proceeding under Section 271(1)(c) of Act, 1961 was initiated. 10. The order of AO dated 25.03.2004 was assailed by Assessee before Commissioner of Income Tax (Appeals)-1 (hereinafter referred to as the CIT(A) ). CIT(A) accepted explanation of Assessee and allowed appeal vide order dated 30.11.2004. Aggrieved by order dated 30.11.2004, Revenue preferred appeal before Tribunal in which cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 amounts to review of its own order without any valid basis as there was no case of mistake apparent from record. In support of his contention, learned counsel for appellant placed reliance on Supreme Court's judgment in Bharat Sanchar Nigam Ltd. and another Vs. Union of India, 2006(3) SCC 1. 16. It is further contended that under Section 254(2), it is only error which can be rectified and not the power of review which can be exercised to recall earlier judgment, passed in appeal, and to pass a different order. Thus Tribunal has clearly misdirected itself in exercise of power under Section 254(2) as review which it did not have and, therefore, impugned judgment in both these appeals are patently illegal and without jurisdiction. 17. It is not in dispute before us that Tribunal vide judgment dated 21.09.2007 decided appeal of Revenue and allowed same. Cross objections of Assessee were dismissed. Thereafter application filed under Section 254(2) by Assessee was rejected by a detailed order on 18.07.2008. 18. Question up for consideration is, whether any further application under Section 254(2) for recalling order dated 21.09.2007 was maintainable and whether any applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed under Section 254(2) is maintainable under law or not, to which he could not reply at all. However, what he submitted is that against orders passed under Section 254(2) an appeal under Section 260A is not maintainable and for that purpose placed reliance on judgments in Madhav Marbles Granites Vs. Income Tax Appellate Tribunal, 2012(246 CTR 243 (Raj.); Chem Amit Vs. Assistant Commissioner of Income Tax, 2005(272) ITR 397 (Bom.); Shaw Wallace and Co. Ltd. Vs. Income Tax Appellate Tribunal and others, 1999(240) ITR 579; M/s Samant Singh Vs. Commissioner of Income Tax and another, (Income Tax Appeal No. 9 of 2012), decided on 10.09.2013; and, Visvas Promoters P. LTD. Vs. The Income Tax Appellate Tribunal, Chennai, 2010(323) ITR 114 (Mad.). 22. It is also argued on behalf of Respondent-Assessee that in exercise of powers under Section 254(2) of Act, 1961, rectification includes recall of order and for this purpose reliance is placed on judgments in Commissioner of Income Tax vs. U.P. Shoe Industries, 1999(152) CTR 205 (All) and Assistant Commissioner, Income Tax, Rajkot Vs. Saurashta Kutch Stock Exchange Ltd., 2008(14) SCC 171. It is submitted that Tribunal has found err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 253, for a period not exceeding one hundred and eighty days from the date of such order and the Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order: Provided further that where such appeal is not so disposed of within the said period of stay as specified in that order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed. Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, the order of stay shall stand vacated after the expiry of such period or periods. (2B) The cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233 observing that no error can be said to be apparent on the face of record if it is not manifest or self-evident and requires an examination or argument to establish it. There cannot be any rule of thumb to define the term error apparent on the face of record since there being an element of indefiniteness inherent in its very nature, it must be left to be determined by authority concerned. 29. In Satyanarayan Laxminarayan Hegde and Ors. v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, Court said: An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. 30. A patent, manifest and self evident error which does not require elaborate documents or argument to establish it can be said to be an error apparent on the face of record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of record if one has to travel beyond the record, to see, whether judgment is correct or not. An error apparent on the face of record means a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Agarwal, 1993(202) ITR 14 (Cal.). 35. In our view it is not necessary to look into this aspect of the matter further for the reason that we are satisfied that if there is a mistake apparent from record it has to be rectified by Tribunal if other conditions of Section 254(2) regarding limitation etc. are satisfied and if this mistake is brought to the notice by Revenue or Assessee. Such power includes within its ambit even recall of order. 36. In the present case, however, it is not a simple case of allowing application under Section 254(2) for the reason that such an application was already rejected by Tribunal vide order dated 18.07.2008. Tribunal has exercised a power of recall on second application moved by Assessee under Section 254(2) by recalling not only order dated 18.07.2008 passed on Assessee's application under Section 254(2) but has also taken a different view than taken in earlier judgment dated 21.09.2007 without pointing out any such mistake. In our view, this was not permissible at all and, therefore, order dated 05.12.2008 is patently erroneous and not sustainable. 37. Now comes the question of maintainability of appeal which has been heavily pressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta High Court in Shaw Wallace and Co. Ltd. Vs. Income Tax Appellate Tribunal (supra) has been referred and quoted but therein we find that having referred to same, no view has been expressed by Court regarding maintainability of appeal. Therefore, this is not an authority on the question of maintainability of appeal. 42. Sri Agarwal, then relied on a Madras High Court's judgment in Visvas Promoters P. LTD. Vs. The Income Tax Appellate Tribunal, Chennai (supra) wherein Court held that against an order passed under Section 254(2), if a writ petition is filed it is not to be thrown on the ground of alternative remedy of appeal under Section 260A. 43. From aforesaid judgment we find that Court has clearly observed that an appeal under Section 260A does not lie merely on rejection of an application which does not decide substantial issue involved between the parties but pre-condition is that a substantial question of law must have arisen. If no substantial question of law arisen, no appeal would lie under Section 260A of Act, 1961. Referring to a Division Bench judgment of Bombay High Court in Chem Amit vs. Assistant Commissioner of Income Tax (supra), Court observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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