TMI Blog2020 (12) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the argument that the appellant s application under Rule 29 of ITAT Rules is liable to be dismissed as the conditions mentioned therein are not attracted, this Court is of the view that it cannot second guess what order the Tribunal would pass as it is not for this Court but for the Tribunal to decide the said application. In fact, it has been so held by the Supreme Court in the case of Jyotsna Suri [ 1998 (10) TMI 552 - SC ORDER] This Court is not impressed by the submission of learned standing counsel for the respondent that the additional evidence filed by the appellant had in all probability been considered by the Tribunal. In the impugned order passed by the Tribunal, there is no reference to either the additional documents placed on record by the appellant or to the written submissions/synopsis filed by the appellant. To hold that the additional evidence filed by the appellant had been considered by the Tribunal would be to presume and assume certain facts which are not apparent from the record. This Court is further of the opinion that as the appellant had admittedly filed an application for admission of additional evidence in terms of Rule 29 of the ITAT Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for orders on 08th November, 2019. Thereafter, the matter was listed for clarification by the Tribunal and the order on the said application was again reserved on 09th October, 2020. However till date no order has been pronounced by the Tribunal on the application filed by the appellant under Section 254(2) of the Act. 6. In the present appeal, it has been averred that since the appellant was awaiting the final outcome of the aforesaid miscellaneous application filed before the Tribunal, the impugned order dated 28.02.2019 was not challenged in appeal before this court within the prescribed period of limitation, and hence the present appeal is barred by limitation by 498 days. ARGUMENTS ON BEHALF OF THE APPELLANT 7. Mr. Ajay Vohra, learned senior counsel for the appellant states that the appellant has been constrained to file the present appeal under Section 260A of the Act without waiting for a final order in the rectification application filed by it, as the appellant wishes to avail the benefit of waiver of interest and penalty under the amnesty scheme being Vivad se Vishwas Scheme , for which declarations have to be filed latest by 31st December, 2020. 8. Mr A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the discretion of the court which is to be exercised judiciously. The question whether the discretion has been exercised judiciously or not cannot obviously be ordinarily a question of law unless it can be disputed or found that in exercising that discretion, the Tribunal has ignored some well settled legal principles in the matter of exercise of such discretion or has acted so grossly or arbitrarily that no authority trained and disposed to adjudicate the rights of the litigating parties as a judicial or quasi-judicial Tribunal would exercise such discretion in that manner. 11. He lastly contends that the additional evidence filed by the appellant vide application dated 14th January, 2019, had in all probability, been considered by the Tribunal. In support of his contention, he refers to the Index of Additional Documents mentioned in the application for admission of additional evidence and points out that the additional documents mentioned therein had been referred in the written submissions filed by the appellant with the Tribunal after the conclusion of the hearing on 22nd January, 2019. He states that the Tribunal would surely have examined and taken into account th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERENT AND IT CANNOT BE SAID IN LAW THAT THEY ARE PARALLEL OR MUTUALLY EXCLUSIVE PROCEEDINGS 18. This Court is also in agreement with the submission of learned senior counsel for the appellant that the scope of Sections 254(2) and 260A of the Act are entirely different and it cannot be said in law that they are parallel or mutually exclusive proceedings, i.e., if a party invokes Section 254(2), it is barred in law from invoking Section 260A of the Act. 19. Normally speaking this Court would not entertain an appeal under Section 260A of the Act if an application for rectification under Section 254(2) of the Act is pending consideration as there is some overlap and if the order is recalled by the Tribunal, then the initial appeal would become infructuous. But in the present case, as the last date for availing the benefit of amnesty scheme being Vivad se Vishwas Scheme is 31st December, 2020 and despite all efforts, the Tribunal is not deciding the application for rectification under Section 254(2) of the Act and learned counsel for respondent has stoutly opposed passing of any order in the present appeal to expedite disposal of the application filed by the appellant under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) set aside the order of the High Court and remanded the matter back to the file of the Tribunal to decide the application under Rule 29 of ITAT Rules and thereafter to dispose of the appeal on merits. The relevant observations of the Apex Court are reproduced hereinbelow:- The Tribunal has disposed of the appeal by its order of 3rd Jan., 1997, without considering the pending application under Rule 29 of the ITAT Rules, 1963, for adducing additional evidence. Obviously, that application was required to be disposed of first before the Tribunal heard the appeal on merits. The appellant also undertakes to withdraw the pending application before the Tribunal for making a reference under Section 256(1) of the IT Act for the above purpose. In view thereof, we direct that the Tribunal should first dispose of the application under Rule 29 on merits and thereafter proceed to dispose of the appeal on merits. The order dated 3-1-1997, is, therefore, set aside and the matter is remitted to the Tribunal for disposal on merit in accordance with law. The order of the High Court is set aside as above and the appeal is disposed of accordingly. RELIEF 24. For the aforesaid rea ..... 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