TMI Blog2022 (5) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... stands preferred, filed along with the appeal papers, as indeed the communications between the ld. Departmental Representative and the field officer confirming this position, again duly furnished to the Tribunal prior to the date of hearing of the appeal/s. There being no reference to these documents, admittedly relevant, in the impugned order, reproduced in it s operative part hereinbefore, there has clearly been an omission on the part of the Tribunal in not noticing the same, much less have regard thereto, incumbent on it under law. The assessee s principal objection concerns the disregarding of the same by the Tribunal inasmuch as the same, having not been supplied to the assessee, could not form part of it s record. We, for the several reasons afore-stated, find the said argument misconceived. The argument presumes the non-consideration of the said material by the Tribunal in the first instance for this reason, even as there is no whisper of the same in it s order. That is, is wholly presumptuous. It further presumes that the Tribunal, though conscious of the said material, yet chose not to direct either the Revenue or it s Registry to supply a copy thereof to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, only to obfuscate the issue. The second argument, i.e., of an order, though mistaken, yet cannot be recalled inasmuch as scope of the instant proceedings is limited to making to amendments in respect of mistake/s apparent from record , the same glosses over the fact that the impugned order is not an order on merits, but an in limine dismissal of the appeal/s under reference for want of competence on technical, albeit mandatory, grounds. That a judgment is to be read as a whole, and it is the principle of law enunciated, it s ratio decidendi, that is binding, is trite law. The said argument is wholly misplaced and, if anything, itself mistaken. We cannot help observing the assessee s conduct in the matter. The Bench had in the instant proceedings on an earlier occasion, in response to Sh. Purohit s contention as to the assessee having not been supplied a copy of authorization memo by the Revenue, directed for the same to be provided to the assessee inasmuch as the same were relevant toward the maintainability of the Revenue s appeal u/s. 268A, as well as copy of the Revenue s Audit Objection, also called for by the Bench during hearing. Further instructions were also passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant appeals by the Revenue. 2.2 The relevant part of the Tribunal s order reads as under:- 2. We have heard both the parties. Admittedly, the tax effect in both the Departmental appeals is below Rs. 50 lakhs. Vide Circular No. 17/2019 dated 08/08/2019, issued u/s. 268A of the Act, it has been directed by CBDT that in case the tax effect does not exceed Rs. 50 lakhs, the appeal before the Tribunal may not be pressed/withdrawn. Since in both the Departmental appeals the tax effect is below Rs.50 lakhs therefore, both the appeals of the Revenue are not maintainable and are liable to be dismissed. 3. Learned D.R., however, contended that in these cases audit objection was accepted. However, the orders of the AO u/s. 147/148 do not contain any such mention. Therefore, nothing is borne out from the record so as to prove the contention raised by learned D.R. The Departmental appeals shall have to be decided on the basis of material available on record. In view of the above, it is clear that both the Department appeals are filed in violation of Board s circular therefore, both the appeals are not maintainable and are dismissed as such. 3. We have heard the parties, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for reference was filed or not filed in respect of any case. (5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly. The law, therefore, obliges the appellate forum, as the Tribunal, hearing the Revenue s appeal under the Act to have regard of the Boards Instructions, etc. issued u/s. 268A(1) as well as of the circumstance/s under which the same has been filed or, as the case may be, not filed in respect of any case. The relevant part of Board Instruction 03/2018 reads as under:- 10. Adverse judgment relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above, or there is no tax effect: (a) .., or (b) .., or (c) where a Revenue Audit objection in the case has been accepted by the Department, or (d) A perusal of the appellate record shows that para 2 of that the Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as submitted that it was not open for the Tribunal, in rectification proceedings, to recall its earlier order, and that a finding, right or wrong, cannot be reviewed; the Tribunal having no power to review it s order. 3.2 The Revenue s case is that there has been an omission on the part of the Tribunal while considering its instant appeals to have regard to the fact, expressly brought forth and conveyed to the Tribunal, that the same were covered under exceptional Cl.10 (c) of the Board Instruction 03/2018, dated 11/07/2018 and, that, therefore, the same stand wrongly dismissed as being in violation of the said Board Instruction (BI) and, thus, not maintainable. Now, by own admission, or as a corollary to his objection of the AM u/s. 253(2) being not liable to be considered as the same, was not provided thereto, the assessee would have no case where the circumstance/s, of which regard is to be had by the Tribunal while hearing the Revenue s appeal, of it having been filed on acceptance of a RAO or, simply put, in pursuance to the exceptional clause 10(c) of the Board Instruction 03/2018, was to be communicated by the Revenue to the Tribunal per the Grounds of Appeal (form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended by the assessee. There is further no prescribed manner in which the Revenue is to communicate the fact of it s appeal or reference having been filed despite low tax-effect due to it being saved by an exception/s to the general instruction specifying the monetary limit, to an appellate authority hearing it s appeal. No fault can thus be said to lie at the door of the Revenue in communicating this fact to the Tribunal through the AM, a statutory document forming part of the appeal papers. Rather, inasmuch as it impinges directly on the competence of the appeal being filed, it s inclusion under AM, which, by definition, provides the necessary authorization to the authority filing the appeal for and on behalf of the Revenue, can only be regarded as apt and proper. In any case of the matter, the same is a circumstance attending the filing or, as the case may be, not filing an appeal by the Revenue, of which the Tribunal is to by law have regard. That being the case and, as explained hereinbefore, there being no prescribed format for communicating the exception attending a particular case, even a mention thereof, i.e., that the Revenue s appeal being heard is excepted by a Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, which besides being relevant from the stand-point of the issue at hand, i.e., the maintainability of the instant appeals u/s. 268A, it was obliged to have regard to. The Revenue, on it s part, was required to bring forth the relevant Board Instruction where-under its appeals stand filed, which also thus becomes the circumstance for their filing, in fact, bringing the same to the notice of the Tribunal, and which it did, mentioning also the relevant clause of the said Instruction. 3.4 Coming to the second argument, i.e., that the Tribunal cannot, in rectification proceedings, recall it s order u/s. 254(2) proceedings. The same is, again, as well as the decision relied upon in support, misplaced. The appeal/s under reference was dismissed by the Tribunal for want of the requisite competence, i.e., on account of low tax-effect, in complete disregard of the express statement in the authorisation memo/s u/s. 253(2) to the effect that despite having a low tax-effect, it was saved under the exceptional clause 10(c) of the BI 03/2018, explaining thus the basis for it s filing. The only consequence and, rather, concomitant of the Tribunal, in the rectification proceedings, finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of the said material by the Tribunal in the first instance for this reason, even as there is no whisper of the same in it s order. That is, is wholly presumptuous. It further presumes that the Tribunal, though conscious of the said material, yet chose not to direct either the Revenue or it s Registry to supply a copy thereof to the assessee, as in that case, forming part of it s record, it would be obliged to take cognizance thereof. That is, acts in a partisan manner. Rather, where so, i.e., the material was not admitted by the Tribunal on this ground, the same ought to form part of it s order, which only would qualify the same as a judicial order inasmuch as the same has to be, by definition, a speaking order. On merits, to even suggest that the AM u/s. 253(2), which forms part of the appeal papers, is not a part of the Tribunal s record, is, to our mind, perverse. There is no requirement in law for the Revenue to have filed the same with the assessee who could though seek a copy of the same, nor any prescribed manner for communicating the same. Rather, inasmuch as the same concerns the legal competence for filing an appeal, mention thereof in and as part of the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference for want of competence on technical, albeit mandatory, grounds. That a judgment is to be read as a whole, and it is the principle of law enunciated, it s ratio decidendi, that is binding, is trite law. The said argument is wholly misplaced and, if anything, itself mistaken. Before parting with this order, we cannot help observing the assessee s conduct in the matter. The Bench had in the instant proceedings on an earlier occasion, in response to Sh. Purohit s contention as to the assessee having not been supplied a copy of authorization memo by the Revenue, directed for the same to be provided to the assessee inasmuch as the same were relevant toward the maintainability of the Revenue s appeal u/s. 268A, as well as copy of the Revenue s Audit Objection, also called for by the Bench during hearing. Further instructions were also passed for the assessee to make arrangements for collecting copy thereof from the Registry. This is borne out by order sheet entries dated 11/9/2020, 18/9/2020 and 25/9/2020. The assessee, however, did not take the copy thereof. As it transpires, this was as that would defeat the assessee s case. We have, however, at our end, confirmed that the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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