Allahabad H.C : This appeal under the provisions of s. 260A of the IT Act, 1961 (hereinafter called the Act) has been filed time- barred.

High Court Of Allahabad

Anupam Sushil Garg vs. CIT & ANR.

Sections 254(2)

Asst. Year 1994-95

Dr. B.S. Chauhan & D.P. Gupta, JJ.

IT Appeal No. 83 of 2003

22nd October, 2003

Counsel Appeared

Piyush Agrawal, for the Appellant : Mahajan, for the Respondent


Dr. B.S. Chauhan, J. :

This appeal under the provisions of s. 260A of the IT Act, 1961 (hereinafter called the Act) has been filed time- barred. There is a delay of 29 days. For the reasons mentioned in the affidavit and after hearing Shri Mahajan learned counsel for the Revenue, we are satisfied that the application for condonation of delay in filing the appeal deserves to be allowed and the delay is condoned.

2. This appeal has been filed against the order dt. 26th Feb., 2003, passed by the Tribunal, Delhi Bench ‘E’, Delhi in Misc. Appeal No. 349/BK/2002, for the asst. yr. 1994-95.

3. Facts and circumstances giving rise to this case are that an assessment for the year 1994-95, was made by the assessing authority showing his agricultural income for the year 1994-95 as Rs. 36,04,821. The assessing authority after considering the record estimated the agricultural income of the appellant at Rs. 5 lacs and held that the balance amount to the tune of Rs. 3,14,821 was from undisclosed sources.

4. Being aggrieved and dissatisfied, appellant preferred the first appeal before the CIT(A), Muzaffarnagar and the appeal was dismissed by granting a relief of Rs. 1 lakh. Being aggrieved and dissatisfied by the order dt. 28th Dec., 1998, appellant preferred the second appeal before the Tribunal, however, the appeal was disposed of ex parte vide order dt. 29th Dec., 2000. Being aggrieved, appellant filed an application under s. 254(2) of the Act on the ground that the ex parte judgment and order of the Tribunal was liable to be recalled on the ground that the appellant had not been given the opportunity of hearing as notice had not been issued to him by the Tribunal. The plea of the appellant is that he has changed his address after filing the appeal and the notice has not been served upon him at the change address, which was accepted and vide order dt. 7th May, 2002, the application was allowed. However, the appeal has again been decided on merit ex parte vide judgment and order dt. 25th Oct., 2002. Being aggrieved appellant again filed an application under s. 254(2) of the Act and the said application has been dismissed vide impugned order dt. 26th Feb., 2003. Hence this appeal.

5. Shri Piyush Agarwal, learned counsel for the appellant has submitted that the appellant had not been served the notice by the Tribunal before passing the order in appeal No. 25th Oct., 2002, at his changed address, therefore, the application under s. 254(2) of the Act ought to have been allowed. On the contrary Shri Mahajan, learned counsel appearing for the Revenue, has submitted that the scope of s. 254(2) of the Act is very limited and as there is nothing on the record to show that the appellant had ever furnished his changed address to the Tribunal, so the question of sending the notice to him at the changed address does not arise and in a limited scope of interference under s. 254(2) of the Act, as there was no error apparent from the record, the Tribunal could not recall the order dt. 25th Oct., 2002, and has rightly dismissed the application and there is no merit in the appeal, nor it raises any substantial question of law, therefore, it is liable to be dismissed at the threshold.

6. The Tribunal while considering the application in this case under s. 254(2) of the Act has considered the judgment of the Delhi High Court in Smt. Baljeet Jolly vs. CIT (2000) 164 CTR (Del) 37 : (2001) 250 ITR 113 (Del), wherein it has been held that in order to attract the power to rectify under s. 254(2) of the IT Act, 1961, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or disputed question of fact is not a mistake apparent from the record. The plain meaning of the word “apparent” is that it must be something which appears to be so ex-facie and is incapable of argument or debate. While considering the said case the judgments of this Court in Bishwanath Prasad & Sons vs. CIT (1987) 163 ITR 715 (All) was followed. Further reliance has been placed by the learned Tribunal in the judgment of Delhi High Court in J.N. Sahani vs. ITAT & Ors. (2002) 174 CTR (Del) 367 : (2002) 257 ITR 16 (Del), wherein after considering large number of judgments it was held that the power of the Tribunal to amend an order passed by it under s. 254(2) of the Act is very much limited, it is confined to rectification of a mistake apparent from the record. The Tribunal has no inherent power of review, therefore, under the garb of rectification of a mistake Tribunal is not competent to recall the earlier order passed on merits. Similarly in Seth Madan Lal Modi vs. CIT (2003) 179 CTR (Del) 67, it has been held by the Delhi High Court that the Tribunal was justified in passing an order under s. 254(2) of the Act, where the order had been passed placing reliance on a wrong provision of law and the provisions of law under which the appeal has been decided were not attracted at all, hence rectification of the mistake was necessary and had rightly been done by the Tribunal.

7. In the instant case the judgment in Seth Madan Lal Modi (supra) has no application, as the facts are quite distinguishable. The learned Tribunal was fully justified in placing reliance upon the other referred judgments of the Delhi High Court. As the appellant could not satisfy us as on what date the appellant had furnished the new address to the Tribunal and what has been his new address, we fail to appreciate that what was the occasion for the Tribunal to send a notice to him on the new address. The appellant cannot be permitted to take the benefit of his own mistake. [Vide Montriel Street Railways Company vs. Normandin AIR 1917 PC 142, Grindlays Bank Ltd. vs. Dharamsing Vallabhji & Ors. (1966) 2 All ER 626, G.S. Lamba & Ors. vs. Union of India & Ors. (1985) 2 SCC 604, Narendra Chadha vs. Union of India & Ors. AIR 1986 SC 638, Jose vs. Alice & Anr. (1996) 6 SCC 342 and T. Srinivasan vs. T. Varalakshmi (1998) 3 SCC 112].

8. There is another aspect of the matter that under the garb of rectification, appellant cannot have an opportunity of review of the order passed earlier in absence of any provisions of substantive review under the said provisions of law.

9. It is settled proposition of law that what cannot be done per directum is not permissible to be done per obliquum”, meaning thereby, whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud.”

10. In Jagir Singh vs. Ranbir Singh AIR 1979 SC 381, the apex Court has observed that an authority cannot be permitted to evade a law by “shift or contrivance”. While deciding the said case, the Hon’ble Supreme Court placed reliance on the judgment in Fox vs. Bishop of Chester (1824) 2B 7C 635, wherein it has been observed as under : “To carry out effectually the object of a statute, it must be considered as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined.”

11. Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the apex Court in M.C. Mehta vs. Kamal Nath & Ors. AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of Art. 142 of the Constitution, which empowers the Court to pass any order in a case in order to do “complete justice.”

12. There is no pleading in the instant appeal even before this Court that appellant had never furnished his new address to the Tribunal on which the Tribunal was required to serve him the notice. In the absence of specific pleadings the case advanced by the appellant cannot be accepted. The appellant did not mention under s. 254(2) of the Act that he had furnished his fresh address to the Tribunal on which he has not been served the notice.

13. It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. [Vide Bharat Singh vs. State of Haryana AIR 1988 SC 2181, Larsen & Toubro Ltd. vs. State of Gujarat & Ors. AIR 1998 SC 1608, National Building Construction Corporation vs. S. Raghunathan & Ors. AIR 1998 SC 2779, Ram Narain Arora vs. Asha Rani & Ors. (1999) 1 SCC 141, Chitra Kumari vs. Union of India & Ors. AIR 2001 SC 1237 and State of U.P. & Ors. vs. Chandra Prakash Pandey AIR 2001 SC 1298.]

14. In Atul Castings Ltd. vs. Bawa Gurvachan Singh AIR 2001 SC 1684, the Hon’ble apex Court observed as under : “The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law.”

15. Similar view has been reiterated in Vithal N. Shetti & Anr. vs. Prakash N. Rudrakar & Ors. (2003) 1 SCC 18.

16. Thus, in view of the above, it is held that in absence of specific pleadings even before this Court, we are of the considered opinion that the appellant had not furnished his fresh address to the Tribunal and in absence of that there was no occasion for the Tribunal to serve him a notice on the changed address. Appellant cannot be permitted to take the benefit of his own mistake by not furnishing the fresh address. Under the garb of rectification he cannot seek the review which is not provided under the statutory provisions.

17. Appeal is devoid of any merit and is accordingly dismissed.

[Citation : 265 ITR 474]

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