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TMI Blog2019 (7) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to denying the opportunity to cross-examine Mr. Devichand Chhoriya, author of the seized documents. Ld AR submitted that the Tribunal while deciding the captioned appeal did not adjudicate ground of appeal No.12 though the ground was never withdrawn by assessee. He submitted that non-adjudication of the ground in the appeal by the Tribunal is a mistake apparent from record in the order of the Tribunal which needs to be corrected. Ld.A.R. further submitted that against the order of ITAT (in ITA No.204/PN/2015) assessee had previously filed M.A. bearing No.33/PUN/2015 which was dismissed by the Hon'ble Bench vide order dt.27.07.2018. He submitted that in the said M.A. the assessee had not raised the issue of non-adjudication of ground No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the Tribunal, assessee has filed appeal before the Hon'ble Bombay High Court in ITA Nos.471/2016 and 475/2016. The Hon'ble High Court vide order dated 26.11.2018 has admitted the tax appeals for consideration. He also placed on record the copy of the aforesaid order. Ld.A.R. thereafter relying on the decision of Hon'ble Bombay High Court in the case of R.W. Promotions Pvt. Ltd. Vs. ITAT (W.P.No.2238/2014) decided on 08.04.2015 submitted that merely because an appeal has been filed before High Court, it would not prevent the Tribunal from dealing with an application u/s 254(2) of the Act. He therefore submitted that since the ground No 12 has not been adjudicated, the order of the Tribunal be recalled to decide the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order of Tribunal, assessee had filed an appeal u/s 260A of the Act before the Hon'ble High Court but the appeal was yet to be admitted. The Hon'ble High Court in the facts of the case held that the Tribunal has power to entertain an application u/s 254(2) of the Act for rectification of mistake. In the present case, however it is not a case where the assessee has merely filed an appeal before the Hon'ble High Court but it is a case where the Hon'ble High Court has admitted the appeal for consideration after framing substantial question of law. We thus find that the facts in the case of R.W. Promotions (supra) and the present case are distinguishable. 8. On the issue when a slightest change in the facts changes the factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d subsequently by the ITAT, Tax Appeal No.1231 of 2008, was already admitted on the substantial questions of law framed in the said appeal, impugned orders cannot be sustained. [Emphasis supplied] 10. Considering the totality of the facts involved in the present case and in view of the decisions cited hereinabove, we are of the view that in the present case since the appeal against the order of the Tribunal has already been admitted and a substantial question of law has been framed by the Hon'ble High Court, the Tribunal cannot proceed with the Miscellaneous Application u/s 254(2) of the Act. 11. In view of the aforesaid facts and following the decision cited above, the Miscellaneous Application u/s 254(2) of the Act seeking rect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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