JAYANT D. SANGHAVI Vs. INCOME TAX APPELLATE TRIBUNAL
LAWS(BOM)-2017-2-238
HIGH COURT OF BOMBAY
Decided on February 01,2017

Jayant D. Sanghavi Appellant
VERSUS
INCOME TAX APPELLATE TRIBUNAL Respondents

JUDGEMENT

- (1.) This petition under Article 226 of the Constitution of India challenges an order dated 14th November, 2013 passed by the Income Tax Appellate Tribunal (the 'Tribunal'). The impugned order dated 14th November, 2013 dismissed the petitioners application under Section 254(2) of the Income Tax Act, 1961 (the 'Act') seeking a recall of its order dated 7th May, 2010 whereby the appeal of the petitioner under Section 254(1) of the Act was dismissed as withdrawn.
(2.) Briefly, the facts leading to this petition are as under : (a) On 7th May, 2010 the petitioners appeal from an order dated 25th March, 2008 by the Commissioner of Income Tax passed under Section 263 of the Act was dismissed as withdrawn by the Tribunal under Section 254(1) of the Act. The dismissal of the appeal was at the specific request of the petitioner as contained in his letter dated 23rd April, 2010 seeking unconditional leave of the Tribunal to withdraw the appeal. (b) Thereafter on 8th July, 2013 petitioner filed application for recall of the order dated 7th May, 2010. The basis for the recall of the order dated 7th May, 2010 was that the appeal was withdrawn on 7th May, 2010 in view of the advise given to the petitioner by his Counsel. (c) On 14th November, 2013 the impugned order dismissing the application of recall of order dated 7th May, 2010 was passed. The impugned order records the fact that the appeal was withdrawn on the specific request of the petitioner himself and in which there is no reference to the fact that the appeal is being withdrawn because of the advise of his Advocate. Therefore the impugned order of the Tribunal concluded that there is no error or mistake apparent from the record leading to its order dated 7th May, 2010, which could require exercise of jurisdiction under Section 254(2) of the Act. The Tribunal also notes the fact that the application for recall of the order dated 7th May, 2010 was filed after three years after the order dated 7th May, 2010. (d) This petition is also filed almost four years after the impugned order dated 14th November, 2013. However, the petitioner states that the petitioner had filed an appeal to this Court being ITA No. 1112 of 2014 from the impugned order, within time. We are informed that the above appeal has now been withdrawn i.e. after the filing of this petition.
(3.) The grievance of the petitioner is that the Tribunal ought to have exercised its powers under Section 254(2) of the Act and withdrawn / recalled its order dated 7th May, 2010. This would have been in the interest of justice, as the petitioner has acted on advise of the Advocate to withdraw its appeal. It is submitted that no litigant should suffer on account of its Advocate's mistake. In support reliance was placed on two decisions of the Calcutta High Court in Binaguri Tea Company Pvt. Ltd. v. Deputy Commissioner of Income Tax [2016]389 ITR 648] and In re : Mahamaya Banerjee [AIR 1989 Cal 106].;


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