TMI Blog2016 (6) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 (2004 (11) TMI 24 - BOMBAY HIGH COURT). Thus in the process of atoning for a mistake, one should take utmost care to ensure no further prejudice is caused. The rejection on 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 bypassed by dealing with the merits in an Miscellaneous Application for rectification. In the above view, we set aside the impugned order dated 14th March, 2008 of the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest it is deemed to be an assessee in default under Section 140A(3) of the Act to the extent the tax and interest are unpaid. Consequent to the above the Assessing Officer passed an order dated 7th May, 2002 imposing a penalty of ₹ 91.13 lakhs under Section 221 of the Act. (c) Being aggrieved with the order dated 7th May, 2002 imposing penalty, the petitioner preferred an appeal before the Commissioner of Income Tax (Appeals) (CIT(A)). In appeal the CIT(A) by order dated 16th December, 2002 set aside the penalty. This, inter alia, on the ground that the Assessing Officer had not issued a proper demand notice under Section 156 of the Act before taking action to impose penalty under Section 221 of the Act. Thus holding that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the submissions, this Court by an order dated 31st July, 2007 allowed the Petition, inter alia, holding as under: 11. .... Therefore, the finding recorded by the Tribunal that the plea regarding nonservice of the demand notice was not raised before the Tribunal cannot be sustained. 12. Accordingly, the Writ Petition is allowed. The impugned order dated 7th March, 2007 passed by the Tribunal is set aside and the Tribunal is directed to dispose of the Miscellaneous Application on merits. (g) Consequent to the above order dated 31st July, 2007 of this Court, the Tribunal heard the petitioner's Miscellaneous Application and dismissed it by impugned order dated 14th March, 2008. This dismissal of the Miscellaneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no impact on penalty proceedings it cannot prefer an appeal under Section 260A of the Act. This for the reason that this Court in Chem Amit v/s. Assistant Commissioner of Income Tax 272 ITR 397 has held that no appeal can be filed from an order rejecting a Miscellaneous Application for rectification under Section 252(2) of the Act. 5. As against the above, Mr. Mohanty, the learned counsel for the Revenue submits that no interference with the order dated 14th March, 2008 of the Tribunal is called for. This for the reasons that this Court had directed the Tribunal to dispose of the Miscellaneous Application on merits. Thus in the context of the order of this Court dated 31st July, 2007 the Tribunal decided the issue on merits viz. the effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n error apparent on record in the order dated 9th May, 2006. This disposing of Miscellaneous Application could only be after recalling the conclusion in its order dated 9th May, 2006 allowing the Revenue's appeal and hearing the petitioner on the issue of penalty being imposable even in the absence of a demand notice being served upon the assessee. This was for the reason that its conclusion was reached without having considered the petitioner's contention that no penalty can be imposed in the absence of receipt of a demand notice by the petitioner. However, the Tribunal in the impugned order has dealt with the issue of imposition of penalty being imposed under Section 221 of the Act even without service of demand notice under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
