TaxTMI 
TaxTMI 
2000 (11) TMI 280
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.... of SMC ITA No. 259/Asr/1995 was filed on 13th March, 1995, whereas the assessment was completed by the Asstt. CIT on 23rd March, 1995. The assessment was made at Rs. 4,42,53,898. At the time of filing the appeal the assessment was pending and, therefore, the applicant was not in a position to give the figure of assessed income nor he could file the copy of the assessment order along with the appeal as required by r. 9(2) of Income-tax Appellate Tribunal Rules, 1963. (4) No Single Member had the jurisdiction to decide an appeal as SMC where the total income as computed by the AO exceeded 1,00,000 rupees. The defect in the appeal form of inaction of the Asstt. Registrar in not pointing out the defect in the appeal could not give any jurisdiction to the Hon'ble Bench if that jurisdiction was not available under the Act. The jurisdiction could not be assumed by the Hon'ble Bench merely on the basis of any defect in the appeal form or any wrong information furnished in the appeal form. (5) Again penalty is levied under s. 271B for default in getting accounts audited under s. 44AB. The appeal filed against the assessment order was set aside by the Hon'ble Bench by order dt. 26th F....
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....ctification of the order passed in ITA No. 259/Asr/1995. Paras 1 to 8 of this application are reproduced here under: "(1) ITA No. 259/Asr/1995 was filed by the appellant company, on 13th March, 1995, in prescribed Form No. 36, along with grounds of appeal, copy of CIT's order and receipt of Rs. 250 as payment of appeal fee. This appeal was filed against CIT's order dt. 30th Nov., 1994, confirming penalty levied under s. 271B. Since the assessment was pending at the time of filing the appeal, copy of assessment order was not attracted. (2) Column No. 3-A and 3-B of Form No. 36 were filled in by the appellant as under: 3-A Total income declared Rs. 29,640 3-B Total income as computed by the AO Rs. 29,640 (not disputed) The assessment was completed by the Asstt. CIT Circle 1(3), Amritsar, by assessment order, dt. 22nd March, 1995, at Rs. 4,42,53,898. (3) The Asstt. Registrar had not pointed out the defect in the memo of appeal and had not asked the appellant to rectify the defect within any reasonable time. No enquiry was made about the assessed income and the appeal was heard ex parte. (4) A further defect was also found ....
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....arding the jurisdiction of the SMC. However, in the second miscellaneous application i.e., Misc. Appln. No. 23/Asr/1996, the assessee vide para 7 of the application had questioned the jurisdiction of the SMC in disposing of the appeal. The Division Bench of this Tribunal in its order passed in Misc. Appln. No. 23/Asr/1996 has duly considered the objections of the assessee regarding jurisdiction of Single Member in deciding the appeal of the assessee and the Tribunal passed a detailed order, wherein it was held that the appeal was rightly placed for disposal before the SMC Bench. The Tribunal found that there was no error in the order dt. 7th Sept., 1995, and rejected the application, vide order dt. 31st Oct., 1997. On a perusal of the order of the Tribunal dt. 31st Oct., 1997, it would be clear that the Tribunal has duly considered the objections of the assessee stated in Misc. Appln. No. 23/Asr/1996. Now, by means of present application, the assessee has raised the same objections which were taken in Misc. Appln. No. 23/Asr/1996. In our view, on this score alone, the present miscellaneous application is liable to be dismissed. It would be relevant to state that the objections take....
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.... The 'appeal' referred to in the provisions is one filed under s. 253. Therefore, the order which can be rectified must be one which has been passed by the Tribunal in an appeal filed under s. 253. In our view, an order rejecting an application for rectification under s. 254(2) is not available to be rectified under s. 254(2). The same may relate to an appeal, but it is not an order passed by the Tribunal under sub-s. (1) of s. 254. As indicated above, the assessee's application for rectification under s. 254(2) was rejected by the Tribunal. The second application was for rectification of some alleged mistakes in the said order of rejection. Sec. 254(2) had no application to such an order. The Tribunal was not justified in purporting to act under s. 254(2) and passing the impugned order." 3.1. In the case of CIT vs. Smt. Gunwanti Bai (1996) 134 CTR (MP) 526 : (1996) 219 ITR 632 (MP), the Hon'ble Madhya Pradesh High Court has held that second application for rectification is not maintainable. In the said case, an application under s. 254(2) of the Act for rectification was moved before the Tribunal which was rejected on 16th Aug., 1982, on the ground that there was no error and a....