TaxTMI 
TaxTMI 
TaxTMI 
2014 (3) TMI 431
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....ur (hereinafter referred to as the "CIT"). 3. The relief No. 1 reads as under: "(i) to issue a writ, order or direction in the nature of certiorari quashing the order dated 29.8.2013 passed under Section 154 of the Income Tax Act by the respondent no. 1 (Annexure-7)." 4. The order dated 29.08.2013 has been passed under Section 154 of Income Tax Act, 1961 (hereinafter referred to as the "Act, 1961") holding its earlier order dated 26.03.2012, passed under Section 264, void ab initio, and accordingly cancelling the same. 5. The facts, in brief, giving rise to present dispute are as under. 6. The petitioner filed return of income in ITR-4 on 07.09.2009 declaring a total income of Rs. 81,000/-. His case was selected under scrutiny and thereafter assessment under Section 143(3) of Act, 1961 was made on a total income of Rs. 2,02,73,180/- vide order dated 26.12.2011. The petitioner filed appeal under Section 246 of Act, 1961 before CIT (Appeals), on 10.01.2012 (sent through courier on 07.01.2012). On 24.02.2012 he sent an application by post seeking withdrawal of his appeal against assessment order dated 26.12.2011. This application is said to have been received in the office of CIT....
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....plication seeking withdrawal of appeal. It also erred in law in proceeding to decide appeal on merits when assessment order, whereagainst appeal was filed, had already been partly set at naught by Revisional Authority in the revision preferred by petitioner under Section 264 and that order attained finality, having not been challenged by Revenue in any further proceedings. He contended that judicial precedents referred to by respondents-authorities for supporting impugned orders, have no application to the facts of this case. He placed reliance on a Single Judge decision of this Court in R.R. Brick Factory Vs. The Commissioner of Sales Tax, 2004 NTN (Vol. 25) 945 wherein it has been held that an appeal can be allowed to be withdrawn, provided there is no notice issued for enhancement of assessment or penalty. 9. Sri R.K. Upadhyay, learned counsel appearing for respondents, however, sought to argue that mere filing of an application for withdrawal of appeal does not mean that appeal stands withdrawn. In the present case, revision preferred by petitioner, when appeal pending, was not maintainable. The Revisional Authority committed a patent error in exercising revisional jurisdictio....
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....and (c). Sub-Section (4) reads as under: "(4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals); or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal." 12. Clause (a) prevents revisional jurisdiction against an order, whereagainst appeal lies to Deputy Commissioner (Appeals) or Commissioner (Appeals) or to Tribunal. It says that either no such appeal has been made or the time within which such appeal could be filed has not expired. In other words if the order of subordinate authority is appealable before Deputy Commissioner or Commissioner or Tribunal and limitation to file appeal has not expired, then revisional power under ....
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....oughly misconceived. It pre-conceives a situation that as soon as an application for withdrawal is filed, the appeal is deemed withdrawn as if the authority concerned, where appeal is pending, has no otherwise power or right in respect of pending appeal. Interestingly, there is no provision under the Act, 1961, which contemplates such a situation. In fact there is no provision in Chapter 20 or elsewhere in of Act, 1961 and atleast none has been shown to this Court, conferring any right of withdrawal of appeal, once filed by assessee, or authorizing Appellate Authority to allow withdrawal of appeal, either conditionally, or otherwise, or in any other manner. 20. In common law, the procedural statute, i.e., Code of Civil Procedure (hereinafter referred to as the "C.P.C.") contains certain provisions which allowed withdrawal of suit or appeal. Order XXIII C.P.C. deals with withdrawal of suit and Rule 1 thereof permits abandonment of suit entirely or part thereof. Order XXIII Rule 1 reads as under: "1. Withdrawal of suit of abandonment of part of claim.--(1) At any time after, the institution of a suit, the plaintiff may as against all of any of the defendants abandon his suit or aba....
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....l the plaintiff to proceed with it. However, if a set off has been claimed under Order 8, CPC or a counter claim has been filed the position may be different. We do not find any occasion to have application of the said authority to the facts of this case..... 1029. We now come to the Division Bench decision of this Court in Smt. Raisa Sultana Begam (supra). This Court has held that there is no provision laying down procedure for withdrawing the suit, manner in which it can be withdrawn and the essential physical acts required to be done to constitute withdrawal, which can be in any form. The Court further held that withdrawing of suit needs no permission from the Court and since there is no provision allowing revocation of the withdrawal application, therefore, an application for withdrawal of suit becomes effective as soon as it is done i.e. by giving information to the Court. The Court's order thereon is no part of the act of withdrawal. On page 322, para 9 of the judgement, the Court observed: "The right to withdraw has been expressly conferred by rule 1(1); there is no provision conferring the right to revoke the withdrawal and there is no justification for saying that th....
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....en referred to the Larger Bench. It is true that the right of the plaintiff to withdraw suit is absolute as observed by the Apex Court in M/s Hulas Rai Baij Nath (supra) and once an application is made by the plaintiff and pressed before the Court, the Court cannot refuse such withdrawal unless there is a case of counter claim, set off etc. It would not mean that as soon as an application informing the Court is moved by the plaintiff that he intends to withdraw the suit or that an oral information is given, the effect would be that the suit would stand withdrawn. 1032. So long as a suit is not instituted by presenting a plaint to the Court, the plaint remains the property of the litigant and would not result in any legal consequence, if he does not present it to the Court, but when the plaint is presented before a competent Court of jurisdiction and a suit is ordered to be registered in accordance with rules, the plaint would become the property of the Court and it would result in certain legal consequences, i.e., pendency of a suit or a case before a Court of law. The said legal consequences cannot be nullified without any order of the Court by the litigant simply by orally or in....
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....ms the Court by moving an application that he intends to withdraw the application for withdrawal of suit, he can always request or inform the Court that he does not want to press the application and the same may be dismissed as not pressed or withdrawn. It is only where the plaintiff press his application before the Court requiring it to pass the order for withdrawal of the Suit, the Court would pass the said order in accordance with law since it cannot compel a plaintiff to pursue a suit though he want to withdraw the same. It would thus be wholly unjust to hold that once an application to withdraw the suit is filed by a plaintiff, he cannot withdraw the same and the suit would stand dismissed as withdrawn. This would have serious and drastic consequences in as much as he cannot file a fresh suit on the same cause of action. 1036. Moreover, the existence of a provision i.e. Rule 1(3), empowering the Court to consider as to whether the plaintiff should be saddled with the liability of payment of cost or not also contemplates that an application for withdrawal of suit by itself would not result in any consequences whatsoever unless the Court has applied its mind regarding the cost.....
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.... another Single Judge in M/s Auto Oil Company Majhola Devi Vs. Indian Oil Corporation Ltd. and others, 2011 (5) ADJ 800. All these authorities have also been referred to in this Court's order dated 27.02.2013 passed in Recall Application No. 82136 of 2011 in Second Appeal No. 841 of 1983, Smt. Kanteshwari Tewari Vs. Badri Prasad and others, where in para 26 of the judgment the Court said: "26. I find that this part of judgment is no longer a good law inasmuch as the Division Bench judgement in Raisa Sultan Begam (supra) has already been overruled by this Court in the majority decision in Sunni Central Board of Waqfs Vs. Sri Gopal Singh Visharad and others 2010 ADJ Page 1 (SFB)(LB) and this has been referred to and followed by another Single Judge of this Court in M/s Auto Oil Company Majhola Devi Vs. Indian Oil Corporation Ltd. and others, 2011 (5) ADJ 800. The Hon'ble Single Judge has found that recently even the Apex Court has taken a similar view in Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and others, 2011(2) SCC 705 reversing a decision of this Court. The view taken by this Court that once an application to withdraw the suit is filed there is no occasion to fil....
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.... that was actually pending before Appellate Authority. Mere filing of an application seeking withdrawal of appeal would not have resulted as if the appeal stood withdrawn or deemed withdrawn unless an order is passed by Appellate Authority thereon for the reason that appellant could have always requested Appellate Authority not to pass any order on his withdrawal application since he does not press it and he could have the proceeded with his appeal. In the eyes of law, appeal continued to remain pending even if application was filed by petitioner seeking withdrawal of appeal. On the date when revision was filed by petitioner or when CIT passed order on petitioner's revision, petitioner's appeal, as a matter of fact, was pending before Appellate Authority. Hence the Revisional Authority was barred from revising order of Assessing Authority by virtue of sub-section (4) of Section 264 of Act, 1961. 27. There is another aspect of the matter. Clause (a) talks of a situation where assessee has not waived his right of appeal. When appeal is filed, the right of appeal stands availed and exhausted by assessee, hence question of waiver of right of appeal thereafter would not arise. ....