TMI Blog2018 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... under :- Defect(s) are waived. Application No. 7675/18 in appeal no. 151/2017 and 7674/18 in appeal no. 152/2017 are disposed of. It is very clear that against the order of rectification under Order 47 Rule 7, the appeal is not maintainable. In that view of the matter, the appropriate remedy for the appellant is to file appeal before the appropriate forum. Both the appeals stand disposed of. 2. He further relied upon the decision of this Court in R. A. M. Movers Pvt. Ltd., Hanumangarh Town Versus Asst. Commissioner of Income Tax, Sri Ganganagar decided on 25.01.2018 which reads as under:- 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee. 2. While admitting the appeal, this Court framed following substantial question of law :- ( i) Whether in the facts and circumstances of the case, the impugned order dated 27.03.2002, passed by the Tribunal is erroneous wherein the Tribunal has held that investment allowance is not available to the assessee, as it is engaged in mining raising, loading and transporting of gypsum from mines owned by RSM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been passed in appeal would enable the parties to challenge the same before this court in an appeal under section 260A of the Act. The procedure adopted by the Revenue in this case has deprived the right of statutory appeal to the petitioner. No appeal is entertained by this court from an order dismissing the miscellaneous application for rectification under section 254(2) of the Act (see Chem Amit (supra)). Thus in the process of atoning for a mistake, one should take utmost care to ensure no further prejudice is caused. The rejection on the merits of the contentions of the parties by the Tribunal on a substantial question of law is subject to the statutory right of appeal under section 260A of the Act. This right cannot be by-passed by dealing with the merits in an miscellaneous application for rectification. 8. In the above view, we set aside the impugned order dated March 14, 2008 of the Tribunal. We direct the Tribunal to recall its order dated May 9, 2006 to the extent it upheld the order of the Assessing Officer imposing penalty under section 221 of the Act and post the appeal for hearing at a date convenient to it. Needless to state the petitioner's appeal in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation application of the department is held to be not maintainable. 4. Delhi High Court in the case of Lachman Dass Bhatia vs. ACIT, ITA No. 724/2010, Decided on 06.08.2010 wherein it has been held as under:- 23. In view of our foregoing analysis, we proceed to record our conclusions in seriatim: (i) An order passed under Section 254(2) recalling an order in entirety would not be amenable to appeal under Section 260A of the Act. (ii) An order rejecting the application under Section 254(2) is not appealable. (iii) If an order is passed under Section 254(2) amending the order passed in appeal, the same can be assailed in further appeal on substantial question of law. 24. At this juncture, Mr. Mehta submitted that if the assessee is not in a position to prefer an appeal, he will be left remediless. The said submission deserves to be dealt with. When the appeal is not maintainable, in our considered opinion, the same can be challenged by way of writ petition under Articles 226 and 227 of the Constitution of India. Mr. Mehta further submitted that if this Court is of the view that writ would lie, permission should be granted to convert the appeal to the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal (2012)246CTR(Raj)243, [2014]362ITR647(Raj) wherein it has been held as under:- 16. This legal position settled by the Hon'ble Supreme Court and in view of the amendment in law w.e.f. 01.04.1989, admittedly, applicable to assessment year 1999-2000 involved in the present case, appears to have escaped the attention of the learned ITAT while passing the original appellate order on 30.05.2008 and again in the impugned order Annex-1 dated 27.04.2010 under Section 254(2) of the Act even though CIT (Appeals) had dealt with the same. 17. The requirement on the part of the assessee to establish that debts in question had really turned bad is no longer there after 01.04.1989 and it is left to the business prudence of the assessee to claim such deduction by merely writing off such advances or debts as bad debts in the Books of Accounts and debiting the same in the P L account of me assessee Otherwise, any advance would have been shown on the assets side of the Balance Sheet under the heading of 'Debtors' or 'Loan Advances' under the heading Current Assets. So long as the outstanding debt is shown on the Assets side of the Balance Sheet, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer while making addition of ₹ 22,70,370/-. Dealing with the same in extenso, the Division Bench of this Court has dismissed the appeal and confirmed the order passed by the Tribunal confirming the addition of ₹ 24,46,550/- and ₹ 8,64,485/-. As stated above, at the time of hearing of the Tax Appeal, the assessee did not point out before this Court that they have already preferred rectification application before the Tribunal which is pending nor even at the time of deciding the rectification application (subsequently) by the Tribunal it was pointed out before the Tribunal that against the judgment and order passed by the learned Tribunal which is sought to be rectified, they preferred appeal, which has been dismissed by the Division Bench on merits. Shri Shah, learned counsel for the petitioner is not in a position to dispute the above. Under the circumstances, now it is not open for the petitioner to contend that despite the dismissal of appeal by this Court, rectification application would be maintainable, on issues/grounds, which came to be earlier considered by the Division Bench while deciding the Tax Appeal No.653 of 2012 under the guise of the rectificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-Section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. SECTION 35C (2) of the Central Excise Act, 1944 (2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-Section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal: Provided that an amendment which has the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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