Income Tax Appellate Tribunal - Allahabad
Smt. Poonam Kumari vs Income-Tax Officer on 29 March, 1996
Equivalent citations: [1996]59ITD106(ALL)
ORDER
V.K. Sinha, A.M.
1. This is a Miscellaneous Application filed by the assessee praying for recall of the order of the Tribunal and restoration of the appeal.
2. It is stated in the application that the appeal was decided by the Tribunal on 30-4-1992. It was heard earlier on 30-3-1992 and after hearing the Authorised Representative for the department, the counsel for the assessee, Shri V.K. Rastogi, Advocate was not called upon by the Hon'ble Bench.
3. It is also stated that the Tribunal relied on an earlier decision of the Tribunal in I.T.A. No. 981 (All.)/1977-78, which was not cited by the department and the counsel for the assessee was not afforded with an opportunity of replying to it.
4. It is also stated that the issue before the Tribunal was not the cash credit or deposits under section 68 of the Act. The department had come up in appeal against the protective assessment and the Income-tax Officer had not made any substantive assessment so far. The Tribunal had not recorded any finding on this issue.
5. It is on the above grounds that recall of the order of the Tribunal has been sought.
6. At the time of hearing before us, the learned counsel for the assessee made only one oral submission. He vehemently argued with considerable heat and he had not been called upon by the Bench at the time of hearing of the appeal on 30-3-1992 and, therefore, the order of the Tribunal deserved to be recalled.
7. After perusal of the record, the Bench noticed that a similar Misc. Application being M.A. No. 27 (All.)/1993 with similar grounds had been filed earlier and had been rejected by the order of the Tribunal dated 12-7-1993. This was a material consideration and the learned counsel was asked why this material fact has not been mentioned in the Misc. Application. It was stated that he is willing to make the statement now. No other explanation was given. His attention was invited to a decision of the Orissa High Court in CIT v. ITAT [1992] 196 ITR 838 according to which second application for rectification of order of rejection could not be entertained. No further submissions were made in this regard.
8. The learned Departmental Representative, on the other hand, opposed the application. He relied on earlier order of the Tribunal in M.A. No. 27 (All.)/1993 dated 27-7-1993 and also the judgment of the Orissa High Court as mentioned above.
9. We have considered the rival submissions carefully. We find that the present Misc. Application is a third application and not just the second. The first M.A. No. 73 (All.)/1992 contained only one ground saying that at the time of hearing of the appeal on 30-3-1992, the Counsel for the assessee Shri Vinod Kumar Rastogi, Advocate was not called by the Hon'ble Bench. This application was rejected by the Tribunal by order dated 14-12-1992, by stating that it was seen from the file that the learned counsel for the assessee was present and was also herd. Even the Tribunal Order pointed out that the assessee was heard.
10. Undaunted by the above rejection, the assessee filed a further application in M.A. No. 27 (All.)/1993, the contents of which are similar to the contents of the present application. This Misc. Application was rejected by an order of the Tribunal dated 12-7-1993.
11. Still undaunted by two earlier rejections, the assessee is now before us for the third time with an application, the contents of which are similar to the second application. It is quite clear that the assessee now wants a rectification of the order of the Tribunal in M.A. No. 27 (All.)/1993 dated 12-7-1993. This is not permissible as held by the Orissa High Court in ITAT's case (supra). Section 25(2) of the Act empowers the Tribunal to amend any order passed by it under sub-section (1) with a view to rectifying any mistake apparent from record. The order of the Tribunal in M.A. No. 27 (All.)/1993 is not under section 254(1) of the Act, but under section 254(2) and it cannot be rectified under section 254(2) of the Act.
12. In this connection, we may usefully refer to a decision of the Supreme Court in State of U.P. v. Labh Chand [1993] 200 ITR 647 in connection with exercise of writ jurisdiction by a High Court. It was held that after a writ petition had been dismissed by the High Court, a second writ petition on same matter could not be entertained by the same High Court. It was observed, in this concession, that if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petition after writ petition in the same matter in the same High Court and have it brought up for consideration before one Single Judge after another. Such a thing, if allowed to happen, could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court in that there would be no finality for an order of the Court refusing to entertain a writ petition.
13. In our opinion, the above observations will apply with equal force to the repetitive Misc. Applications for rectification filed by the assessee before the Tribunal. We will not go in the present case so far as to label the assessee an unscrupulous litigant but will be content to label him as an ignorant litigant in this regard. However, by this order, the ignorance will disappear for future.
14. With the above observations, the assessee's Misc. Application is hereby dismissed.