2012 (12) TMI 867

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....late Tribunal is right in law and on facts in dismissing the appeal of the appellant without going into the merits of the case on the ground that it was not maintainable?" 2. Brief facts may be noted at this stage. 2.1 For the assessment year 1993-1994, assessment order under section 143(3) of the Act read with section 147 was passed on 27.3.2000. The Assessing Officer computed the total income of assessee at Rs.1 ,61,33,330 /-. The assessee preferred appeal against such assessment order. The Commissioner( Appeals) passed his order on such appeal on 9.1.2002. Against such order, the assessee preferred two proceedings. An appeal was filed before the Income Tax Appellate Tribunal ("the Tribunal" for short) challenging the said order of the ....

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....rcised only if there is mistake apparent from the record of the assessment of the assessee . In other words in order to attract the power to rectify u/s.154, it is not sufficient, if there is merely a mistake in the order sought to be rectified. This mistake to be rectified must be one apparent from the record. A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. The plain meaning of the word "apparent" is that it must be something which appears to be so ex facie and is incapable of argument or debate. It, ....

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....54 of the Act, the assessee preferred rectification application before the Tribunal itself seeking to revive its previous appeal against order of the Commissioner. Such rectification application was dismissed by the Tribunal by order dated 15.5.2009 observing that under section 254(2) of the Act, the Tribunal has power to rectify at any time within four years from the date of order, mistake apparent from record. The assessee had consciously requested the Tribunal to grant permission to withdraw the appeal. Such appeal cannot be reopened in exercise of powers for rectification. 2.4 The assessee thereupon filed appeal against the Commissioner's original order dated 9.1.2002 before the Tribunal and also sought condonation of delay in doing so....

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....so preferred an independent appeal before the Tribunal. Upon rectification application being granted and since the assessee was not interested in pursuing remaining small claim of Rs.43 ,300 /- which was not accepted by the Commissioner(Appeals) in the rectification order, assessee's appeal before the Tribunal was rendered infructuous . It is true that assessee had filed an application for withdrawal of the appeal. However, even if such application was not filed and if the Tribunal was to take up the appeal for hearing, the assessee had no case to argue against since the order impugned in such appeal was already reversed by the Commissioner himself in exercise of rectification power. In that view of the matter, assessee was perfectly justif....