We have heard Mr. Paurami Sheth, learned Central Government Standing Counsel appearing for the revenue. 2. This Tax Appeal has been filed on the following two proposed substantial questions of law :-
“[A] Whether the Appellate Tribunal has power to recall the order which was passed after considering all facts and judicial pronouncements in the name to rectify any mistake ?
[B] Whether the Appellate Tribunal is right in law and on facts in rejecting the Miscellaneous Application filed by the Revenue wherein it was stated that decision of Hon'ble Gujarat High Court in Abhishek Corporation (158 CTR 374) has been set aside by the Hon'ble Supreme Court and that order dated 3.12.2004 passed by Appellate Tribunal recalling the order dated 31.08.2004, on the ground that decision of Hon'ble Gujarat High Court in case of Abhishek Corporation was not considered in order dated 31.08.2004, required to be reversed ?”
3. We need not go into the facts as in this case, the Tribunal partly allowed the appeal filed by the assessee on 31.8.2004, against the said order of the Tribunal, the Revenue filed Tax Appeal No.824 of 2008 which was allowed by Division Bench of this Court on 28.7.2011.
4. In the meantime, the assessee filed Misc. Application pleading before the Tribunal that the decision relied by the assessee in the case of Abhishek Corporation v. Dy. Commissioner of Income Tax, 158 CTR 374 has not been considered by the Tribunal and requested the Tribunal to rectify the said mistake. The Tribunal accepted the request of the assessee and by its order dated 3.12.2004 recalled its earlier order dated 31.8.2004.
5. Against the said order dated 3.12.2004, the Revenue filed Miscellaneous Application on 30.8.2005 which has been rejected by the Tribunal by the impugned order dated 7.1.2001 on the ground that the Revenue has earlier filed Tax Appeal No.824 of 2008 against the order dated 31.8.2004 of the Tribunal and in the said appeal, this Court only approved the question of levy of surcharge u/s.113 and other questions referred by the Revenue did not find favour. Therefore, the Tribunal was of the opinion that the totality of the circumstances very much demand not to approve this Miscellaneous Application and hence, the said Miscellaneous Application was dismissed.
6. We do not find that any substantial questions of law arise for the consideration of this Court. This Tax Appeal is accordingly dismissed.
Sd/-
[V. M. SAHAI, J.] Sd/-
[N. V. ANJARIA, J.] Savariya