TMI Blog2023 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to the parties regarding the date of hearing of the Miscellaneous Petition, once an appeal is disposed of. As per Sub-Clause 2 to Rule 34A of the Income Tax (Appellate Tribunal) Rules, 1963, procedure for filing appeal under the Rules will apply mutatis mutandis to application u/s 254(2) of the Income Tax Act, 1961. Sub- Clause 3 to Rule 34A of the Income Tax (Appellate Tribunal) Rules, 1963 states that the Tribunal shall dispose the application after giving both the parties to the application a reasonable opportunity of being heard. Rule 19(1) of the Income Tax (Appellate Tribunal) Rules, 1963, contemplates serving of a copy of the Miscellaneous Petition on the Assessee or on the counsel or authorized persons respectively. Tribunal has to notify to the parties specifying the date and place of hearing of the appeal and send a copy of the memorandum of appeal to the respondent. Thus, application under Section 254(2) of the Income Tax Act, 1961, has to be communicated to the petitioner. In this case, it appears that the copy of the petition has not been sent to the petitioner. Thus, mere dispatch of a notice is not sufficient. To hold that notice came to the knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad gone un-noticed and therefore, the petitioner was unaware of the listing of the miscellaneous petition in M.P. No. 47/CHNY/2021 moved by the respondents to recall the order dated 23.12.2020 in ITA. No. 3039/CHNY/2018. 6. As far as proceedings under Section 254 of the Income Tax Act is concerned, Rule 34A of the Income Tax (Appellate Tribunal) Rules, 1963, contemplates the procedure for filing the application. The aforesaid Rule reads as under: 34A. (1)An application under Section 254(2) of the Act shall clearly and concisely state the mistake apparent from the record of which the rectification is sought. (2) Every application made under sub-rule (1) shall be triplicate and the procedure for filing of appeals in these rules will apply mutatis mutandis to such applications. The applicant shall also state whether any Miscellaneous Application under Section 254(2) was filed earlier before the Tribunal against the same order and if so, the face of such application. Copies of the orders passed by the Tribunal on such application shall also be filed before the Tribunal in triplicate along with the Miscellaneous Application. (3) The Bench which heard the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in Paragraph 2 of the impugned order. However, the petitioner failed to appear and therefore, the impugned order came to be passed. 13. That apart, it is submitted that by re-calling the order passed on 23.12.2020, the Tribunal has not determined the issue finally. In fact, the case was directed to be listed for final hearing. In view of the pendency of the present writ petition, the Tribunal has deferred from passing the final order. It is submitted that no prejudice or harm will be caused to the petitioner by the impugned order. It is further submitted that the impugned order has been passed within four corners of law. 14. The learned Senior Standing Counsel for the second respondent has placed reliance on the following decisions:- (i) Commissioner of Income-tax Vs. Paville Projects (P) Ltd reported in [2023] 149 taxmann.com 115 (SC); (ii) CIT Vs. Durga Engineering and Foundry Works reported in [2000] 12 SCC 596; (iii) Commissioner of Income Tax Vs. Reliance Telecom Limited reported in [2021] 133 taxman.com 41 (SC); (iv) R.L. Traders Vs. Income Tax Officer, reported in [2018] 100 taxmann.com 332 (SC); (v) Anuradha Wadhwa Vs. Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove after giving opportunity of hearing to the assessee and pass order thereafter as per law. 18. Aggrieved by the same, the petitioner had filed an appeal before the Income Tax Appellate Tribunal in ITA No. 389/Mds/2015 , which came to be disposed by an order dated 29.05.2015. The petitioner s appeal was dismissed, thereby, the order of the Commissioner dated 31.12.2013 passed under Section 263 of the Income Tax Act, 1961, was upheld. 19. The Assistant Commissioner, thereafter, gave effect to the order dated 19.12.2014 passed under Section 263 of the Income Tax Act, 1961 by an order dated 26.02.2016, pursuant to which, notice for demand under Section 156 of the Income Tax Act, 1961 was also issued to the petitioner. 20. Aggrieved by the same, the petitioner preferred an Appeal under Section 250 of the Income Tax Act, 1961 which culminated in an order dated 10.08.2017 in ITA No. 75/CIT(A)-5/2016-17 of the Appellate Commissioner. The Appellate Commissioner had dismissed the appeal. A further appeal before the Appellate Tribunal in ITA No. 2119/CHNY/2017 was curiously allowed by order dated 26.02.2018 by setting aside the order of the learned Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. 25. The learned counsel for the petitioner, on the other hand, would submit that no notice was actually sent to the petitioner or to the counsel for the petitioner before taking up the M.P. No. 47/CHNY/2021 for hearing. 26. A reference may be made to Sections 3 and 4 of the Indian Contract Act, 1872. It deals with communication of the proposals and when communication is complete. They read as under:- Section 3 of the Indian Contract Act Section 4 of the Indian Contract Act 3. Communication, acceptance and revocation of proposals,-- The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. 4. Communication when complete.- The, communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete,-- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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