Apex Metchem (P) Ltd v. Income Tax

CW 5081/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.5081/2008 Apex Metchem (P) Ltd Versus Income Tax Appellate Tribunal Jaipur Bench & Ors. Date of Order ::: 08/05/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Sanjay Jhanwar with Mr. Prakul Khurana & Mr. Atul Saxena, for petitioner Mr. Sameer Jain for respondent No.1 & 4 (ITAT) Mr. Anurup Singhi for Mr. JK Singhi, for respondents No.2 & 3 (CIT) While considering application U/Art.226 (3) of Constitution seeking vacation of interimorders dt.23/05/08, this Court vide order dt.16/01/09 observed to finally dispose of thepetition at admission stage; hence instantpetition was finally heard at joint request. Instant petition is directed againstorder dt.31/03/2008 (Ann.4) in Misc.Appl.8/JP/2008, whereby Income Tax Appellate Tribunal,Jaipur Bench (“ITAT, Jaipur”) in exercise ofpowers U/s 254(2) of Income Tax Act, 1961 (“IT Act”) re-called its earlier order dt.29/03/2006 (Ann.1) and further directed both the appeals(ITSSA-105/JP/2004 & 35/JP/2005-Asstt.Year-Block Period 01/04/88 to 23/03/99) to be heard by ITATMumbai Bench, Mumbai in terms of order dt.04/04/05 (Ann.3) of the President ITAT, Mumbai (respondent No.4). Basic issue raised herein is as to CW 5081/08 //2// whether on the facts & in the circumstances ofthe case, the Tribunal has erred in law and infacts in re-calling its final order passed U/s254(1) with a view to rectify the same inexercise of powers U/s 254(2) of the Act. Shorn of all details, only relevant factsnecessary for purposes of issue raised herein aresummerised. It appears that on 21/01/99, theRevenue initially conducted a search operationU/s 132 of the Act at office and residentialpremises of one Shri Mayur M. Thakkar of Mumbaiwherein certain cash & documents were seized andin course of search of his bank accounts, name ofpetitioner-Company (M/s Apex Metchem (P) Ltd,193A Industrial Area Jhotwara Jaipur) was foundhaving debit & credit statements. Proceedings forblock period (01/04/88 to 23/03/99) wereinitiated against M.Thakkar U/s 158-BC at Mumbaiwhile against petitioner Company U/s 158BD of theAct at Jaipur. Assessing Authority at Mumbaipassed order of assessment in case of M.ThakkarU/s 158BC on 31/03/01 against which appeal waspreferred before Commissioner of Income Tax(Appeals) Mumbai and decided on 30/04/03. Sincepetitioner-Company also appeared as intervenor inproceedings initiated against M.Thakkar, as suchalso preferred appeal against order of assessment CW 5081/08 //3// made U/s 158BC and order of CIT(A) Central VIIMumbai before Appellate Tribunal, Mumbai whichwas transferred by Appellate Tribunal Mumbai toJaipur Bench and came to be registered as ITSSA-97/JP/04. Since appeal arises from proceedings initiated against M.Thakkar U/s 158BC of the Acton its transfer to Jaipur Bench, application wasfiled by petitioner to consolidate appeal and onthe said application, the President, ITAT Mumbaipassed order dt.04/04/05 (Ann.3) directing appeal(IT(SS)A No.97/Jp/04 to be heard and determinedby Mumbai Bench, Mumbai. As informed, hearingafter transfer is pending before Mumbai Bench. Since petitioner was assessed by assessing authority U/s 158BD of the Act videorder dt.13/07/04, against which appeal waspreferred and came to be decided by CIT (Appeals)III, Jaipur on 14/12/2004, against whichpetitioner Company preferred appeal (IT(SS)A No.105/JP/2004) on 27/02/05 before ITAT Jaipur andcross appeal (IT(SS)A No.35//JP/2005) was alsofiled by Revenue and both the appeals (supra)were decided by common order dt.29/03/06 (Ann.1)U/s 254(1) of the Act. Against order dt.29/03/06 (Ann.1) of ITAT CW 5081/08 Since petitioner was assessed by assessing authority U/s 158BD of the Act videorder dt.13/07/04, against which appeal waspreferred and came to be decided by CIT (Appeals)III, Jaipur on 14/12/2004, against whichpetitioner Company preferred appeal (IT(SS)A No.105/JP/2004) on 27/02/05 before ITAT Jaipur andcross appeal (IT(SS)A No.35//JP/2005) was alsofiled by Revenue and both the appeals (supra)were decided by common order dt.29/03/06 (Ann.1)U/s 254(1) of the Act. Against order dt.29/03/06 (Ann.1) of ITAT CW 5081/08 Jaipur, the Revenue preferred appeals U/s 260A ofthe Act being D.B. Income Tax Appeal Nos.77/08 &78/08) which as informed, were admitted by thisCourt and are pending adjudication. At this stage, without there being any application filed by either of parties, videorder dt.15/12/2007 (Ann.2), the ITAT suo motoissued show cause notice to the parties as to whyorder dt.29/03/06 (Ann.1) be not re-called U/s254(2) of the Act and to get the matters heard &decided by Mumbai Bench, Mumbai, as per orders ofthe President, ITAT, Mumbai dt.04/04/05 (Ann.3).After show cause notice (supra) was served,petitioner Company & the Revenue both appearedwhere petitioner raised several objectionsincluding authority of ITAT to question finalorder passed U/s 254(1) and also tried to clarifythat reasons referred to in the show cause noticeissued vide order dt.15/12/2007 (Ann.2) withrespect to appeal being transferred from Jaipurto Mumbai Bench were not related to appealshaving been decided by ITAT, Jaipur Bench videfinal order dt.29/03/06 (Ann.1); as such reasonsassigned in the notice (Ann.2) was not legallysustainable. However, ITAT, Jaipur vide order impugneddt.31/03/08 (Ann.4) re-called its final order CW 5081/08 dt.29/03/06 (Ann.1) passed U/s 254(1) of the Act,holding that it was a mistake apparent from therecord and further directed to consolidate boththe appeals to be heard alongwith appeal pendingbefore ITAT, Mumbai Bench, being assailed herein.Counsel for petitioner submits that theTribunal committed an error of law & jurisdictionin exercise of powers U/s 254(2) while re-callingits final order (Ann.1) passed U/s 254(1) of theAct. Counsel further submits that the Tribunaldoes not hold any plenary & inherent powers underthe Act; and once substantive order passed byTribunal U/s 254(1) was assailed by Revenue byfiling appeal U/s 260-A before this Court, powersU/s 254(2) of the Act were not required to beexercised pending adjudication before High Court.Counsel further submits that under limited scopeof S.254(2) of the Act, learned Tribunal couldhave rectified mistake apparent from the record,but not hold competence of re-calling the orderand to re-hear afresh, as such order impugnedpassed by ITAT Jaipur in exercise of powers U/s254(2) of the Act is without jurisdiction anddeserves to be set aside. Respondents have filed separate reply through their respective counsel. In their reply,respondent Nos.1 & 4 raised preliminary objection CW 5081/08 Respondents have filed separate reply through their respective counsel. In their reply,respondent Nos.1 & 4 raised preliminary objection CW 5081/08 that writ petition is not maintainable in view ofstatutory remedy of appeal being available U/s260-A of the Act; and that apart, it has beeninter-alia averred that at one stage, request wasmade by petitioner-Company by clubbing itsappeals and to be heard at Mumbai Bench, Mumbaipertaining to search conducted at premises ofMayur M.Thakkar; and despite order ofconsolidation dt.04/04/05 (Ann.3) passed on itsapplication by President ITAT, Mumbai in exerciseof powers U/r 4 of ITAT Rules, 1963 cancelled butwas not brought to the notice of ITAT JaipurBench which was the mistake apparent from therecord and thus the Tribunal has not committedany error in re-calling its final orderdt.29/03/06 (Ann.1) passed in exercise of powersU/s 254(1) of the Act. It has also been averredthat Counsel for petitioner was relative of oneof members of ITAT Jaipur Bench, and the originalorder(Ann.1) was obtained by petitioner;and whenit came to the notice of Mumbai Bench, Mumbai,petitioner made an attempt to withdraw the appealwhich was transferred to ITAT Mumbai Bench videorder of the President ITAT Mumbai dt.04/04/05(Ann.3). At the same time, Assessing Authority (respondent Nos.2 & 3) have also filed their CW 5081/08 separate reply raising self-same preliminaryobjection about availability of remedy of appealU/s 260-A of the Act against order impugned butnothing substantial has been averred by them intheir reply. It is relevant to mention that after passing of the order impugned, recalling finalorder dt.29/03/06 (Ann.1) passed in exercise ofpowers U/s 254(2) of the Act, the President,ITAT, Mumbai has passed further order dt.20/08/08 in pursuance of R.4 of ITAT Rules, 1963 transferring petitioner's two appeals-IT(SS)ANO.97/Jp/04 & No.105/JP/04; and so also ofassessing authority (ACIT Cir.3, Jaipur) (No.35/Jp/05) for being heard by Mumbai Bench, Mumbai. I have considered contentions of Counsel for both the parties and with their assistance,examined material on record. Under the Scheme ofIT Act, in case of a search conducted U/s 132,proceedings of block assessment period againstassessee are initiated U/s 158-BC; while at thesame time, if assessing officer is satisfied withundisclosed income belongs to any other personsother than those with respect to whom search wasmade, can initiate proceedings against such otherpersons U/s 158-BD of the Act. In instant case, search was conducted U/s CW 5081/08 //8// 132 of the Act against Mayur M. Thakkar at Mumbaion 21/01/99 at his office and residentialpremises resulting into initiation of proceedingsU/s 158-BC while at the same time, proceedingswere also initiated against petitioner-Company asalleged U/s 158-BD for certain bank accounts inthe name of petitioner-Company found in course ofsearch conducted by assessing authority atJaipur. At the stage of pending assessment before assessing authority, cases under jurisdiction ofdifferent Director General, Chief Commissioner orCommissioner can be transferred obviously afteraffording reasonable opportunity of being heardto the assessee and after recording reasons fordoing so in exercise of powers U/s 127 of theAct. In instant case, the assessment was madeof assessee (Mayur M. Thakkar) U/s 158-BC of theAct by assessing authority Mumbai against whichhe preferred appeal (CIT(A)C-VII/C-18/ROT-198/01/02) which was also decided on 30/04/03 preferredfurther appeal to ITAT, Mumbai; & the petitionerbeing intervenor preferred appeal before MumbaiBench which was transferred to Jaipur Bench on09/12/04 and this appeal was separatelyregistered by Jaipur Bench as IT(SS)A No.97/ CW 5081/08 assessing authority, cases under jurisdiction ofdifferent Director General, Chief Commissioner orCommissioner can be transferred obviously afteraffording reasonable opportunity of being heardto the assessee and after recording reasons fordoing so in exercise of powers U/s 127 of theAct. In instant case, the assessment was madeof assessee (Mayur M. Thakkar) U/s 158-BC of theAct by assessing authority Mumbai against whichhe preferred appeal (CIT(A)C-VII/C-18/ROT-198/01/02) which was also decided on 30/04/03 preferredfurther appeal to ITAT, Mumbai; & the petitionerbeing intervenor preferred appeal before MumbaiBench which was transferred to Jaipur Bench on09/12/04 and this appeal was separatelyregistered by Jaipur Bench as IT(SS)A No.97/ CW 5081/08 Jp/04, which on request made by petitioner forits consolidation was transferred to Mumbai BenchMumbai vide orders dt.04/04/05 (Ann.3) passed bythe President in exercise of powers U/r 4 of ITATRules, 1963. At the same time, assessment order was passed by assessing authority in case ofpetitioner at Jaipur U/s 158-BD of the Act on30/07/04 and the appeal preferred before CIT(Appeals) was decided on 14/12/04; and since both the parties were aggrieved, cross appeals (IT(SS)A-105/Jp/04 of petitioner Company & IT(SS) ANo.35/Jp/05 of the Revenue) were filed before theITAT Jaipur Bench and were decided vide commonorder dt.29/03/06 (Ann.1). It is relevant to mention that orderdt.04/04/05 (Ann.3) passed by the President inexercise of R.4 of ITAT Rules, 1963 transferringappeal of petitioner to Mumbai Bench was confinedto appeal (IT(SS)A No.97/Jp/04) which indeed wastransferred to Mumbai Bench; and consolidated toappeal (No.553/M/03) preferred by Mayur M.Thakkarand was pending before ITAT, Mumbai Bench; at thesame time after cross appeals were decided byITAT Jaipur Bench vide common order dt.29/03/06(Ann.1), the Revenue preferred appeal (DB ITAppeal Nos.77/08 & 78/08) before High Court Jaipur Bench U/s 260-A of the Act which wereadmitted and are pending adjudication. In instant case, either of parties didnot file any application but the Tribunal suomoto ordered on 15/12/07 to issue show causenotice (Ann.2) to the parties calling upon themto appear on 15/01/08; and reasons referred to inthe notice was that order dt.04/04/05 of thePresident whereby appeals were consolidated andto be heard by Mumbai Bench was not brought totheir notice, which according to the Tribunal,was a mistake apparent from the record; and thatcompelled the Tribunal Jaipur Bench vide orderimpugned (Ann.4) to re-call its final order(Ann.1)passed U/s 254(1)of the Act. There cannot be any dispute that if thereis a mistake apparent from the record, it canalways be rectified or amended by the Tribunalobviously within the period of limitation U/s 254(2) of the Act. Before I examine the controversy further,it will be relevant to look into S.254(1) & (2)of the Act which runs ad infra: “254.(1) The Appellate Tribunal may,after giving both the parties to theappeal an opportunity of being heard,pass such orders thereon as it thinksfit.(2) The Appellate Tribunal may, atany time within four years from thedate of the order, with a view to rectifying any mistake apparent fromthe record, amend any order passed byit under sub-section (1), and shallmake such amendment, if the mistake isbrought to its notice by the assesseeor the Assessing officer.” Proviso to R.34A(3) & (4) of ITAT Rules (quoted below) provides procedure for dealing withapplications submitted U/s 254(2) of the Act : (3) The Bench which heard thematter giving rsiet to the application(unless the President, the SeniorVice-President, the Vice President orthe Senior Member present at thestation otherwise directs) shalldispose it after giving both theparties to the application areasonable opportunity of being heard: rectifying any mistake apparent fromthe record, amend any order passed byit under sub-section (1), and shallmake such amendment, if the mistake isbrought to its notice by the assesseeor the Assessing officer.” Proviso to R.34A(3) & (4) of ITAT Rules (quoted below) provides procedure for dealing withapplications submitted U/s 254(2) of the Act : (3) The Bench which heard thematter giving rsiet to the application(unless the President, the SeniorVice-President, the Vice President orthe Senior Member present at thestation otherwise directs) shalldispose it after giving both theparties to the application areasonable opportunity of being heard: “Provided that it shall not benecessary to post miscellaneousapplication for hearing if it primafacie appears to be a petition forreview.” (4) An order disposing of anapplication, under sub-rule(3), shallbe in writing giving reasons insupport of its decision.” In instant case, the Tribunal suo moto issued notice to the parties purporting in exercise ofpowers U/s 254(2) and re-called its final orderpassed U/s 254(1) of the Act on the premise thatthere was a mistake apparent from the record inorder dt.29/03/06 (Ann.1). Question arises as to whether on the facts, the Tribunal was justified vide orderimpugned dt.31/03/08 (Ann.4) to re-call its finalorder passed U/s 254(1) for re-consideration. Inother words, question is as to whether the CW 5081/08 Tribunal committed error of law in re-calling itsfinal order, which was appealable U/s 260A of theAct, despite there being limited scope torectify/amend the order only in case of mistakeapparent from the record. A bare perusal of S.254(2) of the Act shows that the section gives power to rectify anymistake apparent from the record; and to amendany order passed by it and to make such amendmentif the mistake is brought to its notice by theassessing officer or the assessee. On a conjoint reading of sub-sections (1)& (2) to S.254, it clearly emerges that final order (Ann.1) passed U/s 254(1) must hold thefield and the apparent mistake can be rectifiedor amended in exercise of powers U/s 254(2) ofthe Act. It is necessary that there must exist a mistake apparent from the record and the orderpassed U/s 254(1) shall be made to be the basiswith a view to rectify such a mistake. Therefore,whether the Tribunal acts on its own motion or atthe behest of parties, it is imperative thatthere must be a mistake apparent from the recordwhich would require the order in appeal to beamended. That apart, S.254(4) of the Act provides //13// that the orders passed by the Tribunal on appealU/s 254(1) shall be final save as provided subject to appeal U/s 260-A of the Act. Thelanguage employed in S.254 is crystal that theorder passed on appeal can be an order passed U/s254(1) or it could be an amended order passed U/s254(2) of the Act and in both the situations, anorder would nonetheless remain an order subjectto appeal U/s 260A to the High Court. Contention advance by Counsel for petitioner that such powers U/s 254(2) could notbe exercise suo moto is not of any substance. Ona bare reading of provisions of S.254 of the Act it depicts that the Tribunal has powers torectify mistake apparent from record in twosituations; - (1) on its own motion & (2) onapplication being moved by either party beforeit. It cannot be contended that power can beexercise only on the application. If the Tribunalis vested with power to rectify a mistakeapparent from the record, it can certainly do soon its own motion or on application being filedby either party. A Division Bench of Delhi High Court hadan occasion to examine scope of S.254(2) of the Act in CIT Vs. KL Bhatia (1990(182) ITR 361) andobserved ad infra: CW 5081/08 Contention advance by Counsel for petitioner that such powers U/s 254(2) could notbe exercise suo moto is not of any substance. Ona bare reading of provisions of S.254 of the Act it depicts that the Tribunal has powers torectify mistake apparent from record in twosituations; - (1) on its own motion & (2) onapplication being moved by either party beforeit. It cannot be contended that power can beexercise only on the application. If the Tribunalis vested with power to rectify a mistakeapparent from the record, it can certainly do soon its own motion or on application being filedby either party. A Division Bench of Delhi High Court hadan occasion to examine scope of S.254(2) of the Act in CIT Vs. KL Bhatia (1990(182) ITR 361) andobserved ad infra: CW 5081/08 “As we have already observed, theTribunal is a creation of thestatute. It is an admitted case, andit is now well settled, that thoughthe Tribunal has no inherent power ofreviewing its order on merits, theTribunal has incidental or ancillarypowers which can be exercised by it.Bu such power cannot be invoked torehear a case on merits. The Tribunalcan, after disposing of the appealunder section 254(1), rehear thematter on merits only within thepurview of section 254(2). TheSupreme Court has held in PatelNarshi Thakershi v. Pradyuman singhjiArjunsinghji, AIR 1970 SC 1273, thatthe power to review is not aninherent power. It must be conferredby law either specifically or bynecessary implication. It does notstand to reason that, if the power ofreview is not present with theTribunal, it, nevertheless, canexercise such power indirectly whenit cannot do so directly. If thecontention of learned counsel for therespondent is correct, then it couldmean that, even on merits, theTribunal can recall its earlier andthen hear the case afresh and pass adifferent order. If this is so, itwould amount to the Tribunalexercising power of review when itdoes not have any such power. To givean example, under the provisions of CW 5081/08 the Code of Civil Procedure, Order 27provides the circumstances in which ajudgment may be reviewed. If thecontention of learned counsel for therespondent is correct, then, applyingthe same analogy to a civil case, itwould be open to a court to recallits judgment in a case where theprovisions of Order 47 are notapplicable, and then to rehear thecase. With respect, we see no warrantfor this in legal jurisprudence. Theappellate court can hear a case anddecide it on merits, once for all,and cannot keep on rehearing the sameappeal over and over again. Fulleffect has to be given to theprovisions of section 254(4) whichspecifically provides that a decisionof the Tribunal passed in appeal isfinal. This decision is final notonly for the assessee but also finalas far as the Tribunal, itself, isconcerned.” In Asstt. CIT Vs. Saurashtra Kutch Stock Exchange Ltd (2008 (173) Taxman 322 (SC)), Apex Court observed ad infra: 37. In our judgment, therefore, apatent, manifest and self-evidenterror which does not requireelaborate discussion of evidenceor argument to establish it, can besaid to be an error apparent on theface of the record and can be corrected while exercising certiorari CW 5081/08 jurisdiction. An error cannot be saidto be apparent on the face of therecord if one has to travel beyond therecord to see whether the judgment iscorrect or not. An error apparent onthe face of the record means an errorwhich strikes on mere looking and doesnot need long-drawn-out process of reasoning on points where there mayconceivablybetwoopinions.Such error should not require anyextraneous matter to show its Court observed ad infra: 37. In our judgment, therefore, apatent, manifest and self-evidenterror which does not requireelaborate discussion of evidenceor argument to establish it, can besaid to be an error apparent on theface of the record and can be corrected while exercising certiorari CW 5081/08 jurisdiction. An error cannot be saidto be apparent on the face of therecord if one has to travel beyond therecord to see whether the judgment iscorrect or not. An error apparent onthe face of the record means an errorwhich strikes on mere looking and doesnot need long-drawn-out process of reasoning on points where there mayconceivablybetwoopinions.Such error should not require anyextraneous matter to show its incorrectness. To put it differently,it should be so manifest and clearthat no Court would permit it toremain on record. If the view acceptedby the Court in the original judgmentis one of the possible views, the casecannot be said to be covered by anerror apparent on the face of therecord.” In Honda Siel Power Prodcuts Ltd Vs. CIT (2007 (12) SCC 596), Apex Court observed ad infra: “12.As stated above, in this case weare concerned with the applicationunder section 254(2) of the 1961 Act.As stated above, the expression "rectification of mistake from therecord" occurs in section 154. It alsofinds place in section 254(2). Thepurpose behind enactment of section 254(2) is based on the fundamentalprinciple that no party appearingbefore the Tribunal, be it an assesseeor the Department, should suffer on CW 5081/08 //17// account of any mistake committed by theTribunal. This fundamental principlehas nothing to do with the inherentpowers of the Tribunal. In the presentcase, the Tribunal in its Order dated10.9.2003 allowing the RectificationApplication has given a finding thatSamtel Color Ltd. (supra) was citedbefore it by the assessee but throughoversight it had missed out the saidjudgment while dismissing the appealfiled by the assessee on the questionof admissibility/allowability of theclaim of the assessee for enhanceddepreciation under section 43A. One ofthe important reasons for giving thepower of rectification to the Tribunalis to see that no prejudice is causedto either of the parties appearingbefore it by its decision based on amistake apparent from the record. (emphasis added) From the judgments cited (supra), it is clear that the Tribunal is vested with powers torectify mistake apparent from the record suo motuor at the behest of either party to dispute; andif there is a mistake apparent from the record,the Tribunal is bound to carry out the amendmentin the original order to correct particularmistake as is evident from a latter portion ofproviso, as per which there should exist mistakeapparent from the record which would require the CW 5081/08 //18// order in appeal to be amended. Scope & ambit ofapplication of S.254(2) of the Act is verylimited. It is restricted to rectification ofmistakes apparent from the record. But to re-viewor re-call the order is not permissible U/s 254(2) if necessitating rehearing & re-adjudicationof entire subject matter of appeal and thedispute after being put for re-hearing no longerremains restricted to any mistake sought to berectified. Power to re-call an order is providedU/Rr.24 & 25 of ITAT Rules, 1963; that too onlyin cases where appellant/ respondent showsreasonable cause for being absent at a time whenthe appeal was taken up and decided ex parte. However, in instant case, mistake CW 5081/08 //18// order in appeal to be amended. Scope & ambit ofapplication of S.254(2) of the Act is verylimited. It is restricted to rectification ofmistakes apparent from the record. But to re-viewor re-call the order is not permissible U/s 254(2) if necessitating rehearing & re-adjudicationof entire subject matter of appeal and thedispute after being put for re-hearing no longerremains restricted to any mistake sought to berectified. Power to re-call an order is providedU/Rr.24 & 25 of ITAT Rules, 1963; that too onlyin cases where appellant/ respondent showsreasonable cause for being absent at a time whenthe appeal was taken up and decided ex parte. However, in instant case, mistake apparent from the record which was made byTribunal to be the basis to re-call final orderpassed U/s 254(1) of the Act was in fact an orderdt.04/04/05 (Ann.3) being passed by PresidentITAT, Mumbai in exercise of powers U/r 4 of ITATRules, 1963 – a bare perusal whereof depicts thatAppeal (ITSSA No.97/Jp/04-block period 01/04/88to 23/03/99) filed by appellant (petitionerCompany herein) was transferred from Jaipur toMumbai Bench and its copy was also forwarded toAsstt. Registrar, ITAT, Mumbai to hear appealpreferred by petitioner (ITSS A No.97/Jp04) CW 5081/08 together with IT SS A No.375/04 filed by Mayur M.Thakkar. But there was no order available on record being passed of consolidating appeals(ITSS A No.105/Jp2004 & cross appeal No.IT(SS)35/Jp/2005) for being heard at Mumbai Bench inthe absence whereof, there cannot be said to beany mistake apparent from the record beingcommitted by the tribunal Jaipur Bench in hearingsuch appeals and decided finally U/s 254(1) ofthe Act vide order dt.26/03/2006 (Ann.1). Hencevery plea of mistake apparent from the recordhaving been taken to be the basis by Tribunalwhile re-calling its final order passed U/s 254(1) of the Act on the facts of instant case isotherwise not legally sustainable. However, it is relevant to mention that after impugned order was passed by Tribunal(Ann.4), the President ITAT, Mumbai also issuedan order dt.20/08/08 in pursuance of R.4 of ITATRules, 1963 transferring both the appeals (supra)which were decided by Tribunal Jaipur Bench, tobe consolidated and heard by Mumbai Bench. Sincethere was no prior order of consolidation of twoappeals being passed by President U/r 4 of ITATRules, certainly there cannot be said to be anymistake apparent from the record while deciding CW 5081/08 //20// two appeals vide order (Ann.1) in exercise ofpowers U/s 254(1) of the Act. Objection raised by respondents that petitioners have an alternative remedy of appealU/s 260-A of the Act in the facts of instant caseis of no substance for the reason that the appeallies against order passed U/s 254(1) of the Actand any amendment made later on by Tribunal U/s254(2) certainly merged into final order passedwhich is certainly appealable U/s 260-A. If finalorder U/s 254(1) of the Act is re-called andmatter is to be re-heard afresh, there cannot besaid to be an order U/s 254(1) allegedlyappealable U/s 260-A of the Act and that apart,if the order is without jurisdiction, that cancertainly be assailed under writ jurisdiction ofthis Court U/Art.226 of the Constitution. Before parting with judgment, this Court would like to observe that in their separate reply, respondent Nos.1 & 4 have inter-aliaaverred about procedure adopted by Tribunal whilepassing final order dt.29/03/06 (Ann.1) andfurther imputed allegation against one of membersof the Tribunal which passed final order U/s 254(1), taking note of Vakalatnama filed by some ofhis relatives and also made averment that theorder was passed in collusion. It is pertinent to CW 5081/08 //21// Before parting with judgment, this Court would like to observe that in their separate reply, respondent Nos.1 & 4 have inter-aliaaverred about procedure adopted by Tribunal whilepassing final order dt.29/03/06 (Ann.1) andfurther imputed allegation against one of membersof the Tribunal which passed final order U/s 254(1), taking note of Vakalatnama filed by some ofhis relatives and also made averment that theorder was passed in collusion. It is pertinent to CW 5081/08 //21// mention that such a reply imputing allegationsagainst a member of the Tribunal is supported byaffidavit of Registrar of the Tribunal, who hasno personal knowledge and the record does notdepicts so. This Court has not examined the validity of final order passed U/s 254(1) of the Act andwhat has been averred by respondent Nos.1 & 4 intheir reply imputing allegations, are notrelevant factors for being considered orinfluenced thereby for the issue underconsideration herein. However, this Court likesto observe that what has been raised byrespondents in their reply imputing allegations,the respondent NO.4 being at the helm of affairs,it is for him to keep its office in order. Remedylies within and not elsewhere but needs nocomments from this Court which refrains fromprobing into further and expressing any opinionin this regard. Consequently, writ petition succeeds andis hereby allowed. Order dt.31/03/08 (Ann.4)passed in exercise of powers U/s 254(2) of theAct & consequential order dt.20/08/08 (Ann.AR.1)of President ITAT for transferring appeals (ITSSANo.105/JP/04 & 35/JP/05) to Mumbai Bench arehereby quashed & set aside. No costs. (Ajay Rastogi), J. K.Khatri/p.21/5081CW08RsrMay08.doc