|COURT:||Bombay High Court|
|CORAM:||A. A. Sayed J, S. C. Dharmadhikari J|
|CATCH WORDS:||recall of order, rectification of mistake|
|COUNSEL:||A. K. Jasani|
|DATE:||December 17, 2014 (Date of pronouncement)|
|DATE:||December 23, 2014 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 254(2): If the Tribunal accepts that a mistake has crept in the order, interests of justice is served if the entire order is recalled (suo moto by the ITAT) & appeal re-heard. Appeals should not be disposed off in “light hearted” and “casual manner”|
During the pendency of the Appeal before the High Court, the Tribunal passed an order on the Miscellaneous Application and revived the appeal filed before it for hearing afresh on merits in relation to withdrawal of deduction u/s 36(1)(viia). However, as the assessee had not asked for recall of the ground challenging the exercise of powers u/s 263 by the CIT, the same was not recalled. HELD by the High Court:
(i) We are not happy in the manner in which the Tribunal has decided the Miscellaneous Application. If the Tribunal was required to devote so much time for assigning reasons in more than five paragraphs in a lengthy eight page order on the Miscellaneous Application so as to correct an obvious mistake by exercising powers under section 254(2) of the IT Act, then, interest of justice would have been sub-served and better had the Tribunal revived the entire Appeal and not partially. If there was a mistake with regard to the claim of deduction, we do not think that the tribunal was justified in directing partial revival of the Appeal…… We do not think that interest of justice and equity is served by non consideration of vital materials by the last fact finding authority, namely the Income Tax Appellate Tribunal. That the Tribunal was required to recall its earlier orders and for the reasons which have been assigned by it would indicate that it failed to apply its mind at the initial stage to the grounds raised in the Appeal and in their entirety. It omitted from consideration crucial documentary material as well. In such circumstances, such partial revival of the Appeal would not meet the ends of justice.
(ii) We modify the order passed on the Miscellaneous Application and direct that the Appeal shall now be heard on its own merits and in accordance with law, permitting the Assessee to raise all grounds that are to be found in the Memo of Appeal. … This direction issued by us in the exercise of our further appellate and inherent powers should serve as a reminder to the Tribunal that the matters of vital importance affecting the interest of public should not be disposed of in a light hearted or casual manner. The record must be perused in its entirety and properly and minutely. That is the function and which the judicial body is required to perform and oblige to carry out as well. In these circumstances and the unsatisfactory and unhappy manner in which the Miscellaneous Application has been dealt with and decided that we have directed the revival of the Appeal.