| COURT: | Bombay High Court |
| CORAM: | A. K. Menon J., M. S. Sanklecha J |
| SECTION(S): | 254(1), 254(2) |
| GENRE: | Domestic Tax |
| CATCH WORDS: | rectification of mistake, scope of appeal |
| COUNSEL: | Sanjiv Shah |
| DATE: | June 23, 2016 (Date of pronouncement) |
| DATE: | July 12, 2016 (Date of publication) |
| AY: | 2001-02 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 254(2): In an order passed in a Miscellaneous Application, the Tribunal cannot deal with the merits of the issue. The Tribunal must recall the original appellate order and refix the matter for hearing and pass an order u/s 254(1) of the Act | |
This Court in its order dated 31st July, 2007 has while setting aside the order dated 7th March, 2007 of the Tribunal dismissing the petitioner’s Miscellaneous Application had held that there was an error apparent from the record in the order dated 9th May, 2006. The direction of the Court in its order dated 31st July, 2007 to the Tribunal to dispose of the Miscellaneous Application on merits as there is an error apparent on record in the order dated 9th May, 2006. This disposing of Miscellaneous Application could only be after recalling the conclusion in its order dated 9th May, 2006 allowing the Revenue’s appeal and hearing the petitioner on the issue of penalty being imposable even in the absence of a demand notice being served upon the assessee. This was for the reason that its conclusion was reached without having considered the petitioner’s contention that no penalty can be imposed in the absence of receipt of a demand notice by the petitioner. However, the Tribunal in the impugned order has dealt with the issue of imposition of penalty being imposed under Section 221 of the Act even without service of demand notice under Section 156 of the Act upon an assessee. This the Tribunal could have only done while passing an order in appeal. The consequent order which would have been passed in appeal would enable the parties to challenge the same before this Court in an appeal under Section 260A of the Act. The procedure adopted by the Revenue in this case has deprived the right of statutory appeal to the petitioner. No appeal is entertained by this Court from an order dismissing the Miscellaneous Application for rectification under Section 254(2) of the Act (see Chem Amit v/s. Assistant Commissioner of Income Tax 272 ITR 397). Thus in the process of atoning for a mistake, one should take utmost care to ensure no further prejudice is caused. The rejection on merits of the contentions of the parties by the Tribunal on a substantial question of law is subject to the statutory right of appeal under Section 260A of the Act. This right cannot be bypassed by dealing with the merits in a Miscellaneous Application for rectification
i wonder how the tribunal missed the basic point – on statutory provisions.
it is vital hon tribunal shd always patiently examine all aspects on imposition of penalty, after all natural justice is the Hall mark of all legal systems