K.S. Jhaveri, J. - (1.) Counsel for the assessee has relied upon the decision of this Court in Shri Shrivatas Rathi v. Commissioner of Central Excise and Service Tax, Jaipur-I and other connected matter decided on 7-3-2018 which reads as under :- "Defect(s) are waived. Application No. 7675/18 in appeal No. 151/2017 and 7674/18 in appeal No. 152/2017 are disposed of. It is very clear that against the order of rectification under Order 47, Rule 7, the appeal is not maintainable. In that view of the matter, the appropriate remedy for the appellant is to file appeal before the appropriate forum. Both the appeals stand disposed of."
(2.) He further relied upon the decision of this Court in R.A.M. Movers Pvt. Ltd., Hanumangarh Town v. Asstt. Commissioner of Income Tax, Sri Ganganagar decided on 25-1-2018 which reads as under :- "1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee. 2. While admitting the appeal, this Court framed following substantial questions of law : "(i) Whether in the facts and circumstances of the case, the impugned order dated 27-3-2002, passed by the Tribunal is erroneous wherein the Tribunal has held that investment allowance is not available to the assessee, as it is engaged in mining raising, loading and transporting of gypsum from mines owned by RSMM Ltd. and no manufacture or production of any article or things takes place? (ii) Whether in the facts and circumstances of the case, subsequent judgment of Hon'ble Supreme Court rendered in case of Commissioner of Income Tax v. Sesa Goa Ltd. (2004) 271 TTR 331 does amount to an error apparent on the face of record and the Learned Tribunal was required to amend/correct its order in light of final verdict of Hon'ble Supreme Court by way of rectification?" In view of the decisions in (2005) 272 ITR 397 (BOM) (Chem Amit v. Asstt. Commissioner of Income Tax) and (2011) 10 taxmann.com 193 (Allahabad) [CIT (Central), Kanpur v. Ekta Flavours Pvt. Ltd.], the appeal is not appropriate remedy. Hence, the same is dismissed. It will be open for the appellant to prefer appropriate proceedings. The period taken from 2007 till today will be taken into consideration while deciding the question of limitation."
(3.) Counsel for the department has relied upon the following decisions :- 1. In Safari Mercantile Pvt. Ltd. v. ITAT (2016) 386 ITR 4 (Bombay) wherein it has been held as under :- 7. We note that this court in its order dated July 31, 2007 has while setting aside the order dated March 7, 2007 of the Tribunal dismissing the petitioner's miscellaneous application had held that there was an error apparent from the record in the order dated May 9, 2006. The direction of the court in its order dated July 31, 2007 to the Tribunal to dispose of the miscellaneous application on the merits as there is an error apparent on record in the order dated May 9, 2006. This disposing of miscellaneous application could only be after recalling the conclusion in its order dated May 9, 2006 allowing the Revenue's appeal and hearing the petitioner on the issue of penalty being imposable even in the absence of a demand notice being served upon the assessee. This was for the reason that its conclusion was reached without having considered the petitioner's contention that no penalty can be imposed in the absence of receipt of a demand notice by the petitioner. However, the Tribunal in the impugned order has dealt with the issue of imposition of penalty under section 221 of the Act even without service of demand notice under section 156 of the Act upon an assessee. This the Tribunal could have only done while passing an order-in-appeal. The consequent order which would have been passed in appeal would enable the parties to challenge the same before this court in an appeal under section 260A of the Act. The procedure adopted by the Revenue in this case has deprived the right of statutory appeal to the petitioner. No appeal is entertained by this court from an order dismissing the miscellaneous application for rectification under section 254(2) of the Act [see Chem Amit (supra)]. Thus, in the process of atoning for a mistake, one should take utmost care to ensure no further prejudice is caused. The rejection on the merits of the contentions of the parties by the Tribunal on a substantial question of law is subject to the statutory right of appeal under section 260A of the Act. This right cannot be by-passed by dealing with the merits in an miscellaneous application for rectification. 8. In the above view, we set aside the impugned order dated March 14, 2008 of the Tribunal. We direct the Tribunal to recall its order dated May 9, 2006 to the extent it upheld the order of the Assessing Officer imposing penalty under section 221 of the Act and post the appeal for hearing at a date convenient to it. Needless to state the petitioner's appeal in respect of only the above issue would be decided after hearing the parties. The other issues would not be redecided as they stand concluded by the order dated May 9, 2006. 2. In Commissioner of Income Tax v. Saroop Tanneries Ltd., (2015) 374 ITR 20 (P &H) wherein it has been held as under :- 2. The Tribunal had passed an order dated June 30, 2010, in M.A. No. 46 (ASR) of 2009. The Tribunal corrected a mistake on account of not having noticed the judgment of the Supreme Court in Commissioner of Income Tax v. Amalgamations P Ltd. : (1997) 226 ITR 188 (SC). The Tribunal expressly recorded that the applicability of the decision cannot be adjudicated under the provisions of section, as the same is covered under section 254(1) of the Act. The respondent agrees that as and when an order is ultimately passed under section 254(1) in accordance with the order dated June 30, 2010, under section 254(2), the same would be appealable under section 260A. The appellant, therefore, is not without a remedy in the event of the order under section 254(1) being adverse to it. 3. The appellant filed M.A. No. 12 (ASR) of 2011 under section 254(2) of the Act against the order dated June 30, 2010, which was dismissed by the impugned order and judgment dated November 19, 2012. In view of what we have mentioned earlier, the appellant is in any event not without a remedy. However, this order in an application under section 254(2) is not appealable. 3. In Commissioner of Income Tax v. Sahara India Ltd. (2013) 37 taxmann.com 91 (Allahabad) wherein it has been held as under :- "7. An appeal under Section 260A of the Act lies to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. The order passed in the rectification application to rectify an order, which is the opinion of the third Member, to which the matter was referred by the Bench of Tribunal of two Members, would not fall within the meaning of order passed by the Appellate Tribunal, in appeal. It is an opinion, and not a final order of the Tribunal which was required to be framed on such opinion. 8. Since the final order of the Tribunal dated 31-5-2005, is under challenge in which the department may take the grounds, which have been taken in this appeal. This appeal as against the order dated 7-4-2000, rejecting the rectification application of the department is held to be not maintainable." ;