TaxTMI 
TaxTMI 
2005 (1) TMI 44
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....ng a finding on the controversy before it when a specific ground as to the challenge to the penalty order had been made in the appeal memo filed by the Revenue." The facts as stated in the memorandum of appeal by the Revenue are as under: For the assessment year 1992-93, the assessee had filed its return of income declaring a total income of Rs. 5,89,240. The assessing authority had taken up the returns filed by the assessee for scrutiny. After such scrutiny, the assessing authority on the ground that there is concealment of the income and inaccurate particulars in the returns filed, had quantified the tax liability of the assessee on the total taxable income of Rs. 26,86,880 vide his assessment order dated March 31, 1995. The assessing authority had also initiated proceedings under section 271(1)(c) of the Act for levy of penalty. After hearing the assessee, the assessing authority had levied a penalty of Rs. 12,06,140 by his order dated September 28, 1995. The assessee, being aggrieved by the aforesaid order passed by the assessing authority in levying penalty under section 271(1)(c) of the Act, had carried the matter in an appeal before the Commissioner of Income-tax (Appeal....
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.... of this Tribunal. This would have been a fit case to award costs to the assessee. However, since the learned Departmental Representative was fair enough to concede that there has been a genuine mistake, though the appeal may be dismissed, no further damage be done to the revenue authorities. Seemingly there is no mala fide intention. So we do not award any costs. However, we caution the Department to file an appeal not in a casual or indifferent manner." Aggrieved by the said order, the Revenue had filed a miscellaneous petition before the Tribunal, inter alia, requesting the Tribunal to review its earlier order dated April 22, 2002. The Tribunal, by its order dated April 3, 2003, has rejected even the miscellaneous petition filed by the Revenue. That is how the Revenue is before this court, being aggrieved by the order passed by the Tribunal in I.T.A. No. 221 of 1996, dated April 22, 2002. Sri Seshachala, learned counsel appearing for the Revenue, would submit that the Tribunal, without giving an opportunity to the Revenue to correct some mistakes in the memorandum of appeal filed before it, could not have rejected the appeal solely on the ground that there are certain defects ....
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....-tax Rules, 1962, specifies the form of appeal and memorandum of cross-objections to the Appellate Tribunal. Sub-rule (1) of rule 47 of the Rules specifies that an appeal under sub-section (1) or subsection (2) of section 253 of the Act to the Appellate Tribunal requires to be made in Form No. 36. Apart from other requirements that should be filled while filing Form No. 36 to the Appellate Tribunal, the person filing the appeal should also indicate the section under which the order appealed against was passed, the section of the Income-tax Act under which the Assessing Officer passed the order and the relief claimed in the appeal, etc. In exercise of the powers conferred by sub-section (5) of section 255 of the Income-tax Act 1961, the Appellate Tribunal has framed the Rules to regulate the procedure of the Appellate Tribunal and the procedure of the Benches of the Tribunal. The Rules are known as "The Income-tax (Appellate Tribunal) Rules, 1963." Rule 6 of the Rules provides for procedure for filing appeals. Rule 8 of the Rules provides for contents of memorandum of appeal. Rule 9 of the Rules speaks of what is to accompany the memorandum of appeal. Rule 11 of the Rules provides....
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.... the Commissioner of Income-tax (Appeals) and, therefore, after coming to the conclusion that the appeal seems to have been filed mechanically and without proper application of mind, it dismisses the appeal filed by the Revenue. In the appeal filed, the Revenue instead of requesting the Tribunal to set aside the order passed by the Commissioner of Income-tax (Appeals) in so far as setting aside the order passed by the assessing authority in levying penalty under section 271(1)(c) of the Act, had questioned the order of the Commissioner of Income-tax (Appeals) in respect of quantification of total income passed by the assessing authority under section 143(3) of the Act. Before the Tribunal, the learned Departmental Representative fairly concedes that it is a genuine mistake. Now the question is, whether under the facts and in the circumstances of the case, the Tribunal is justified in rejecting the appeal filed by the Revenue in limine. We are conscious of the fact that the appeal against the order passed by the Tribunal lies before this court only on a point of law. In our view, the erroneous exercise of discretion by the Tribunal would give rise to an error in point of law. Discr....