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TMI Blog2013 (4) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... me known as 'Kar Vivad Samadhan Scheme'. Subsequent to the notification of the said scheme, the first respondent filed second appeal before the second respondent, Income-tax Appellate Tribunal (for short the Tribunal) and the appeal was barred by limitation by 26 days. An application was filed for condoning delay and the application was supported by an affidavit sworn to by one Mrs. Deepa, an employee of the first respondent. According to the petition averments, the Tribunal took an unusual step of hearing the condonation petition separately. 4. Thereafter, the first respondent in the light of the pending appeal obtained a Certificate in terms of the Kar Vivad Samadhan Scheme. Certificate is filed at Annexure 'H'. 5. The Department filed an application before the Tribunal and that application was dismissed. The Department filed an appeal under section 216A of the Income-tax Act before this Court in ITA No. 166/1999. This Court dismissed the appeal on the ground that no substantial question of law arises from the order and appeal. Thereafter, a Miscellaneous Petition was filed seeking to recall the order in exercise of inherent powers of the Tribunal on the ground of a fraud playe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts reveal of the factum of the respondent deriving the benefits in terms of Kar Vivad Samadhan Scheme. The Department has issued a Certificate in terms of Annexure 'H' in terms of the Certificate. Penalty of ₹ 2,62,42,770 is waived. This benefit is in the light of a pending appeal. The appeal was barred by time and an affidavit was filed explaining delay in the matter. The petitioners have produced material on record with regard to the details of the fraud in terms of examination of Mrs. Deepa and Mr. Buhari. The documents are found at page 50 and it runs up to page 64. The petitioner made an application to recall the order on the ground of a fraud and in the light of the Supreme Court's judgment. In the said petition, the Department pointed out several omissions in the affidavit filed by Mrs. Deepa. The Tribunal has rejected the petition even without referring to the judgment on the basis of which the Miscellaneous Petition was filed. In the application, the petitioner has stated that the application now preferred by them is for invoking the inherent powers of the Court for recalling its orders on the ground of a fraud. Dr. Krishna, as I mentioned earlier complains that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal has taken pains to notice the various provisions of the Act and also the judgment of the Supreme Court, the Tribunal would not have ruled that there was no power to set aside a fraud in the given set of circumstances. 14. The Punjab High Court in V. Venkataraman v. Controller of Estate Duty [1960] 38 ITR 1 has considered the powers of the Tribunal and has ruled "that it is a settled Rule that a judicial Tribunal could recall and quash its own order in exceptional cases when it was shown that it was obtained by fraud or by palpable mistake or was made in utter ignorance of a statutory provision and the like, and for the application of that rule the class of the Tribunal was not a material matter but what was of substance and material was the nature of the proceedings before it; if the proceedings were in the nature of judicial proceedings, then irrespective of the class of the Tribunal the rule applied; that the Appellate Tribunal had inherent jurisdiction to entertain the first application dated February 13, 1950. 15. The Calcutta High Court has considered the case of a power to rectify an order. The Calcutta High Court has ruled that the inherent power to rectify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore a case is certainly made out by the petitioner before me. Any non-interference in a case like this would be perpetuating and percolating a fraud played on a Judicial Tribunal. Moreover, the petitioner has also placed some acceptable materials with regard to fraud. Therefore notwithstanding the stiff opposition of Sri Sarangan, learned Senior Counsel, I am compelled to interfere in the larger interest of purity of justice and purity of Tribunal. I must also notice that the Tribunal has gravely erred in finding fault with the Department in not bringing it to the notice of the Tribunal, the order of the High Court. A careful reading of the material on record would reveal that the appeal filed by the Tribunal was dismissed by this High Court on the ground of "no substantial question of law". It was not in case of any adjudication either on a plea of fraud or on a plea of jurisdiction of power of the Tribunal. The entire approach of the Tribunal in my view requires to be noticed by this Court to reject the case of the respondent. 18. Sri Sarangan, learned Senior Counsel however invites my attention to the judgment of the Supreme Court in Smt. Sushila Rani v. CIT [2002] 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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