TaxTMI 
TaxTMI 
2022 (5) TMI 1573
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....(1) of the Act, which it does from time to time for the purpose of regulating the filing of appeals, applications for references, etc. by the Revenue, regard of which is to be had by the Court or the Tribunal hearing the said appeal or reference. The applicable Board Instruction is 03/2018, dated 11/07/2018, read with Instruction 17/2019, dated 08/08/2019, enhancing the monetary limits specified in the former (for the maintainability of the Revenue's appeals or references before different appellate forums), which, thus, is the principal Instruction in force, so that both are to be read together for the purpose of considering the applicability or otherwise of sec. 268A to the instant appeals by the Revenue. 2.2 The relevant part of the Tribunal's order reads as under:- "2. We have heard both the parties. Admittedly, the tax effect in both the Departmental appeals is below Rs. 50 lakhs. Vide Circular No. 17/2019 dated 08/08/2019, issued u/s. 268A of the Act, it has been directed by CBDT that in case the tax effect does not exceed Rs. 50 lakhs, the appeal before the Tribunal may not be pressed/withdrawn. Since in both the Departmental appeals the tax effect is below Rs.50 ....
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....same or any other assessment year. (3) Notwithstanding that no appeal or application for reference has been filed by an income-tax authority pursuant to the orders or instructions or directions issued under sub-section (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the income-tax authority has acquiesced in the decision on the disputed issue by not filing an appeal or application for reference in any case. (4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case. (5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly.' The law, therefore, obliges the appellate forum, as the Tribunal, hearing the Revenue's appeal under the Act to have regard of ....
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....bject. His objection was two-fold: (i) that inasmuch as copy of these documents was not supplied by the Revenue to the assessee, the same cannot form part of the Tribunal's record and, therefore, no cognizance of the same could be taken by the Tribunal while considering the instant petitions; the scope of section 254(2) being limited to a mistake apparent from record. It would be a different matter, he would add, if the fact of the appeals being filed on acceptance of the RAO was stated in the Grounds of Appeal, forming part of the Memorandum of Appeal (MoA) itself. (ii) the second objection raised by him was with reference to the decision in CIT vs. Reliance Telecom Ltd. (in Civil Appeal Nos. 7110 & 7111/2021, dated 03/12/2021), reading paras 3.2, 6 & 7 thereof. On that basis, it was submitted that it was not open for the Tribunal, in rectification proceedings, to recall its' earlier order, and that a finding, right or wrong, cannot be reviewed; the Tribunal having no power to review it's order. 3.2 The Revenue's case is that there has been an omission on the part of the Tribunal while considering its' instant appeals to have regard to the fact, expressly brou....
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...., even though not required by law to, supplied by the Revenue to the assessee, or had been so directed by the Tribunal, as also the letter dated 06/11/2019, filed on 04/12/2019, and thus available on its' file at the time of hearing of the appeals on 10/12/2019, the Revenue's appeals would become maintainable? The right to appeal is a statutory right. Its' non-exercise by a litigant, is thus to be strictly construed, i.e., in strict adherence to the terms of its' non-exercise, even as explained in Anurag Srivastava (in ITA Nos. 03-07/Jab/2020, dated 07/9/2020). The Ground/s of Appeal (GoA) is toward a cause of action, i.e., the specific point/s on which a litigant is aggrieved by the impugned order. There is, thus, no reason or basis to clarify the basis of filing the appeal in the GoA, as being contended by the assessee. There is further no prescribed manner in which the Revenue is to communicate the fact of it's appeal or reference having been filed despite low tax-effect due to it being saved by an exception/s to the general instruction specifying the monetary limit, to an appellate authority hearing it's appeal. No fault can thus be said to lie at the door of the Revenue in com....
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....bsence of omission on it's part in considering the relevant material on it's file, and to the import of which it had therefore applied it's mind. It is in such a case that it could be said that the Tribunal's decision, even if wrong, could not be subject to review under rectification proceedings. In its absence, it would be presumptuous to so suggest; there being no whisper of any of the documents referred above, including the statutory order u/s. 253(2) (which bears reference to the exceptional clause as integral part thereof), in the impugned order. The contention raised is without basis on facts or in law. To us, it is no more than a case of a patent mistake, apparent from record, of an omission to notice and, consequently, have regard of the materials available with it by the Tribunal and, further, which besides being relevant from the stand-point of the issue at hand, i.e., the maintainability of the instant appeals u/s. 268A, it was obliged to have regard to. The Revenue, on it's part, was required to bring forth the relevant Board Instruction where-under its' appeals stand filed, which also thus becomes the circumstance for their filing, in fact, bringing the same to the not....
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....ppeal papers, as indeed the communications between the ld. Departmental Representative and the field officer confirming this position, again duly furnished to the Tribunal prior to the date of hearing of the appeal/s. There being no reference to these documents, admittedly relevant, in the impugned order, reproduced in it's operative part hereinbefore, there has clearly been an omission on the part of the Tribunal in not noticing the same, much less have regard thereto, incumbent on it under law. The assessee's principal objection concerns the disregarding of the same by the Tribunal inasmuch as the same, having not been supplied to the assessee, could not form part of it's record. We, for the several reasons afore-stated, find the said argument misconceived. The argument presumes the non-consideration of the said material by the Tribunal in the first instance for this reason, even as there is no whisper of the same in it's order. That is, is wholly presumptuous. It further presumes that the Tribunal, though conscious of the said material, yet chose not to direct either the Revenue or it's Registry to supply a copy thereof to the assessee, as in that case, forming part of it's r....
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....s, and which therefore warrants being addressed by taking due notice of the said documents, all forming part of the appeal papers themselves (inasmuch as the communication between the Departmental officers is only toward and in substantiation of the eligibility note at para 2 of the AM, which is to accompany an appeal by the Revenue. The argument advanced - which has been considered in all it's different facets, serving, to our mind, only to obfuscate the issue. The second argument, i.e., of an order, though mistaken, yet cannot be recalled inasmuch as scope of the instant proceedings is limited to making to amendments in respect of mistake/s apparent from record, the same glosses over the fact that the impugned order is not an order on merits, but an in limine dismissal of the appeal/s under reference for want of competence on technical, albeit mandatory, grounds. That a judgment is to be read as a whole, and it is the principle of law enunciated, it's ratio decidendi, that is binding, is trite law. The said argument is wholly misplaced and, if anything, itself mistaken. Before parting with this order, we cannot help observing the assessee's conduct in the matter. The Bench ....