- (1.) HEARD learned counsel for the appellant.
(2.) THESE three appeals arise out of a common order dated 2nd September, 2011 passed by Income Tax Appellate Tribunal, Jaipur Bench 'B',Jaipur in M.A. Nos.64, 65 and 66/JP/2010, whereby three Misc. Applications filed by assessee for recalling of the order were allowed. Submission of learned counsel for the appellant is that in Para 5 of the order, it was mentioned by Tribunal that "Learned D/R fairly stated that since no finding has been given on merit by the Tribunal, therefore, the matter can be recalled for deciding the same afresh ", but in fact no such concession was given by the departmental representative and this fact was wrongly mentioned in the order, therefore, the order passed by Tribunal is liable to be set aside.
(3.) DURING the course of arguments, learned counsel for the appellant brought to our notice that a similar application was filed before Tribunal for recalling the order dated 2nd September, 2011, which is impugned in this appeal on the same ground that no such concession was given by departmental representative that no finding has been given on merits by the Tribunal and order can be recalled for deciding the matter afresh. He further submitted that three misc. applications filed by department for recalling the order dated 2nd September, 2011 have been disposed of by Income Tax Appellate Tribunal vide order dated 2nd February, 2012 and Para 5 of the order dated 2nd September, 2011 has been substituted by another Para 5. The photo stat copy of the order dated 2nd February, 2012 is taken on record and the same is reproduced as under:- "These three miscellaneous applications filed by assessee were disposed off by order dated 2.9.2011 and by that order of Tribunal decided in ITA Nos.637 and 638/JP/2006 for assessment years 1994-95 and 95-96 were recalled for disposing the legal ground i.e against initiation of proceedings under section 147/148 of the IT Act. 2. In fact, the legal ground raised before ld. CIT(A) was dismissed. The ld. CIT(A) while disposing off the appeal of the assessee for assessment year 1994-95 by mentioning that detailed order has been passed for assessment year 1995-96 on the same issue by which the legal ground was dismissed and, therefore, legal ground for assessment year 1994-95 was also dismissed. The Tribunal decided the appeal of the assessee vide order dated 29.2.2008. The Tribunal dismissed the ground for assessment year 1994-95 and 95-96. While disposing the ground for assessment year 1995-96, the Tribunal has recorded a finding that similar ground was disposed off for assessment year 1994-95, and on the basis of reasoning given while deciding the appeal for A.Y. 1994-95, the Tribunal dismissed the ground for A.Y. 1995-96. Thereafter the assessee filed Miscellaneous Application mentioned above and stated that no finding has been given by the Tribunal while rejecting the ground of the assessee for both the years. This argument has been recorded by the Tribunal in para 4 while disposing the above stated Miscellaneous Applications. In para 5, the Tribunal has recorded the argument of ld. D/R that " the ld. D/R has fairly stated that since no finding has been given on merit by the Tribunal, therefore, the matter can be recalled for deciding the same afresh. In view of these facts and circumstances and in view of the fairness shown by ld. D/R that no finding has been given by the Tribunal while disposing this ground, therefore, we recall the order of the Tribunal for all the three assessment years to decide the appeals of the assessee afresh. " 3. Now the ld. D/R has filed a letter dated 17.1.2012 in which it has been stated that he never argued that no finding was given by the Tribunal. Therefore, the observation of the Tribunal that ld.D/R has fairly stated that since no finding has been given therefore, the matter can be recalled, are not correct. Perhaps these findings have been recorded inadvertently by the Tribunal. As we are convinced that ld.D/R has stated that Tribunal has passed the order and there is no mistake in the order, therefore, modified para 5 should be read as under:- "5. On the other hand, the ld.D/R stated that Tribunal has decided the issue by which legal ground for both the years has been dismissed and there is no mistake in the order of the Tribunal. After considering the submissions of both the parties, we find that the Miscellaneous Applications of the assessee are liable to be accepted. We have seen the order of the Tribunal passed originally on 29.2.2008. The Tribunal has recorded a finding in para 4 that the assessee has raised the additional ground of appeal for objecting to reopening of the reassessment proceedings and ld.CIT(A) in this regard mentioned that the said issue has been discussed by him in his order for assessment year 1995-96 and, therefore, the reopening was held to be valid. In such circumstances and facts of the case, there is no material on record before us to decide against the decision of ld. CIT(A). On Perusal of record available before us, we find no infirmity in the order of ld. CIT(A). This finding has been given by Tribunal in Para 4 in ITA No. 637/JP/2004 for the assessment year 1994-95. While deciding appeal for assessment year 1995-96 in ITA No. 638/JP/2006, the Tribunal by recording its finding in para 22 has given following finding:- "On identical facts, the appeal of the assessee has been dismissed in assessee own case for assessment year 1994-95 in ITA No. 637/JP/2004 of even date hereinbefore and following the same, ground no. 1 of the assessee is dismissed. " The ground no. 1 was against initiation of proceedings under section 147/148. If both these paras are read together, then it clearly emerges that there is no finding of Tribunal on this issue. The ld. CIT(A) rejected the ground by mentioning that detailed reasoning has been given while deciding the appeal for assessment year 1995-96 and the Tribunal has not given any finding in respect to finding of ld. CIT (A) for assessment year 1995-96 as they dismissed the ground for A.Y. 1995-96 by mentioning that similar ground has been rejected for assessment year 1994-95. The observations given in Para 4 while deciding the ground for A.Y. 1994-95 it is seen that there is no reasoning given by Tribunal as the Tribunal has confirmed the finding of ld. CIT (A) that detailed reasoning has been given while deciding the appeal for A.Y. 1995-96. As stated above, the ground for A.Y. 1995-96 is dismissed following the order for A.Y. 1994-95. It means there is no finding by the Tribunal on this issue. In view of these facts and circumstances and to meet the ends of justice, we recall the order of Tribunal for deciding the legal ground for both the years. " 4. In the result, Miscellaneous Applications along with letter of ld. D/R dated 17.1.2012 is disposed off as above.;