1. Heard Shri K. Narasimhan, Advocate for the Appellant- applicant and Shri S.K. Choudhury, Senior Departmental Representative for the respondent.
2. The petition is from Shri N.S. Bhat seeking restoration of appeal No. GC (T) (Mad.) 18/80 which has been dismissed as withdrawn by the order of the Tribunal in GC(T) (Mad.) 18/80 dated 9-11-1983.
3. When this application first came up for hearing on 8-6-1984, the advocate for the applicant urged that the Tribunal has powers to restore any case which has been dismissed, and hear it afresh. In particular, he urged that there was an error apparent on record in the sense that the assumption of the appellant-applicant Bhat, that there will be delay in the hearing of another case of his if the present appeal under consideration were to be pressed was a wrong one. It should, therefore, be possible to deal with the application as one for rectification of an error apparent on record. He also felt that there was case law regarding withdrawal of appeals and their subsequent restitution but it was not readily available with him. We had accordingly adjourned the case.
4. On the 3rd August, 1984, the advocate for the applicant cited the following cases in support of the different propositions set out below : (1) Niranjan and Co. Ltd. v. Income-tax Appellate Tribunal and Ors.- 1980 (122) I.T.R. 519 Calcutta.
This he claimed led to the conclusion that when an application for rectification is made, the Tribunal has to decide whether there is any mistake or not. One cannot quarrel with this proposition but the case referred to by the advocate does not deal with the situation of the type under consideration. In the case cited the Tribunal had re-heard the appeal, which the Court considered, it was not entitled to; its only duty on such rectification of such application is by ascertaining whether there was any mistake apparent from the record or not. Clearly this case is inapplicable to the present application.M.K. Venkatachalam, I.T.O. and Anr. v. Bombay Dyeing and Manufacturing Company Ltd.-I.T.O. Alwaye v. Asok Textiles Ltd., Alwaye-AIR c. VedPrakash Madanlal v. C.I.T., Patiala-1976 (102) I.T.R. 213 Punjab and Haryana.
Here too, the advocate stated that this supports a view that every kind of mistake can be rectified by the Tribunal if it is apparent from the record. Here too we find that the advocate has quoted cases out of context. In the first two cases the proposition is that a mistake of law as well as mistake of fact can be rectified by the Tribunal in dealing with an application for rectification. In the third case it has been held that the provision regarding rectification would not cover a case where a mistake has to be discovered by a complicated process of investigation, argument or proof.
(3) a. Stadmed Private Ltd. v. C.I.T., West Bengal IV-1983 (140) I.T.R. 361 Cal.
b. Sidharamappa Andannappa Manvi v. C.I.T., Bombay-1952 (21) I.T.R. 33 Bom.
c. C.I.T., Madhya Pradesh and Bhopal, Nagpur v. Sheolal Ramlal- 1958 (33) I.T.R. 47 M.P.Here the advocate stated the proposition that if there is a mistake in the order apparent from the record, the Tribunal can call back the papers and hear the case afresh.
5. In the first case, the Court has held that the Tribunal has no doubt the power to rectify its mistake apparent from the record as provided in Section 35 of the Indian Income Tax Act, 1922. There can be no doubt that if the Tribunal finds that there is a mistake apparent from the record, it can recall its order containing the mistake and direct a fresh hearing of the appeal.
6. In the second case a Division Bench of Bombay High Court has held that the power of Appellate Tribunal under Section 35(2) of the Indian Income Tax Act, 1922 to rectify its own mistake on its own motion does not exclude its power to rectify the mistake at the instance of the party. It is also stated that the power of the Tribunal is not confined to mere rectification of a mistake which is patent on the record. After the mistake is corrected, the consequential order must follow and the Tribunal has the power to pass all consequential orders.
7. In the third case the Court has held that in passing the supplementary order the Appellate Tribunal did no more than set right something which was a mistake and which was an error apparent on the face of the record; there being an error the Appellate Tribunal was authorised under Section 35 of the Act to rectify it, and even though the Appellate Tribunal did not purport to act under Section 35 of the Act, the action of the Tribunal might be referred to the jurisdiction possessed by it although at that time it might not have been aware of it; the Appellate Tribunal was, therefore, competent to pass the supplementary order under Section 35 of the Act.
8. Thus what is sought to be canvassed by the advocate is slightly different from what is contained in the aforesaid decisions.
In this case the Court held that the Appellate Tribunal has powers under Section 33 of the Income Tax Act for doing all such acts of employing such means as would be essentially necessary for its execution of the appellate jurisdiction. In that case the issue posed before the High Court was whether on the facts and circumstances of the case the Tribunal (Income Tax Appellate Tribunal) was right in vacating the order which it had passed in the appeal against the assessment in contravention of Section 33(6) of the Act. The Court answered the reference in the affirmative. This case too is different from the one under consideration.
9. The circumstances leading to the present application are as follows : When the main appeal came up before us for hearing, the then representative of the appellant sought permission of the Bench to withdraw it when it was pointed out that another appeal from the same party in which reference has been made to the present case will have to be heard after the present appeal is decided. As the proposed withdrawal was of some importance to the Appellant, we suggested to the representative to think over the matter and then respond rather than hastily withdraw the appeal. Thereafter, a written communication dated 31-10-1983 sent from Gangavati seeking for withdrawal of the appeal was received by the Registry in reply to a notice of hearing fixed on 9-11-1983. The appellant wrote as follows : "Please refer to your summons to appear before the Tribunal on 9-11-1983 in connection with Appeal No. GC (T) (Mad.) A. No. 18/80.
My advocate on 23-9-1983 Sri G.R. Diwekar informed the Tribunal that the Revision Petition before the Government would be withdrawn in view of the delay in disposal of the same and consequent delay in the disposal of Appeal No. 6/1979. Hence a copy of the letter seeking for withdrawal is enclosed herewith. The appeal need not be heard and the Revision Petition filed may be returned to Secretary, Government of India stating that I am not interested in the disposal of the Revision Petition and the same may be returned to the Petitioner.
Hence, I am not in a position to attend the hearing since I do not desire that the Tribunal to take up the case." It was on this communication which appears to be a considered one on the part of the appellant that the appeal was dismissed as withdrawn.
This fact was mentioned to the advocate of the applicant on the first day of hearing. What hesought to argue is that the assumption of the appellant that there would be a delay in the disposal of the second appeal and hence the decision to withdraw it is an error on his part.
This should be treated as "an error apparent on record" and the error rectified, the appeal restored to file and re-heard.
10. The error apparent on record has to be one relevant to the order of the Tribunal. The order dated 9-11-1983 of the Tribunal clearly states that only on the appellant's seeking leave to withdraw, it is being dismissed. The Tribunal was not in any error as to facts or law in passing this order. Whatever be the basis of the appellant to assume that his Appeal ought to be withdrawn, that basis would not make it an "error apparent on record" in so far as the order of dismissal is concerned. As stated earlier, a misconceived request by the representative of the appellant was not initially accepted but the party allowed to think over the matter and then communicate with the Tribunal which he in fact did. There is no scope to urge at this late date that there was an error on the part of the appellant in submitting this written request. We, therefore, do not accept that there is any error apparent on record which requires to be rectified. In the light of these circumstances and as observed earlier, the case law cited by the advocate is not apt. Accordingly, the application praying for restoration of the appeal No, GC (T) (Mad.) 18/80 is dismissed.