ORDER
K.P.T. Thangal J.M.
This Miscellaneous Petition is said to be arising out of the order of the Tribunal in M.P. No. 124/Coch/98 dated 18-2-1999 arising out of ITA Nos. 694& 695/Coch/94 dated 14-7-1998. The circumstances leading to this second Miscellaneous Petition are as under :
2. Aggrieved by the original order, the revenue approached the Tribunal vide Miscellaneous Petition No. 124/Coch/98. The Tribunal dismissed the Miscellaneous Petition among others also on the reasoning given at paras 5 and 6 of the order of the Tribunal which read as under:
2. Aggrieved by the original order, the revenue approached the Tribunal vide Miscellaneous Petition No. 124/Coch/98. The Tribunal dismissed the Miscellaneous Petition among others also on the reasoning given at paras 5 and 6 of the order of the Tribunal which read as under:
“Para 5 : Apart from contending that the view subsequently taken by the Honble High Court of Kerala in this case in respect of the earlier assessment years is of no consequence to the order passed by the Tribunal dated 14-7-1998 in ITA Nos. 694 & 695/Coch/94 relating to the assessment years 1990-91 and 1991-92, under consideration, as the High Court has agreed with the Tribunal in remanding the matter to the assessing officer with necessary direction, the learned representative of the assessee submitted that the miscellaneous petition is not maintainable on the ground that it has been filed by the Departmental Representative under section 254(2) which he is not empowered to do under the above provision of the Act. According to the learned representative of the assessee, the sub-section (2) of section 254 is to the effect that the Tribunal shall at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment if the mistake is brought to its notice by the assessee or the assessing officer. Therefore, the learned representative of the assessee contended that the miscellaneous petition is to be filed either by the assessee or by the assessing officer, as the case may be, and since in this case the miscellaneous petition is filed by the Departmental Representative the same is not maintainable.
Para 6 : After considering the submissions of the learned representative of the assessee and perusing section 254(2) of the Act, we are satisfied that since the miscellaneous petition has been filed by the Departmental Representative and not by the assessing officer, the same is not maintainable. Hence we hold that the department is at liberty to file the miscellaneous petition by the competent authority within the time limit prescribed under the Act, if so advised. In this view of the matter, we are not inclined to consider the merit of the application.”
Aggrieved by the above order of the Tribunal, the revenue is before the Tribunal again.
3. The Departmental Representative submitted, that while disposing of the Miscellaneous Petition the Tribunal did not consider in the right perspective rule 2(ii)(b) of the Income Tax Appellate Tribunal Rules, 1963 and also did not consider in the right perspective the decision of the Madras High Court in CIT v. ITAT (1987) 167 ITR 250 (Mad) as well as the decision in CIT v. P.N.N. Bank Ltd. (1969) 72 ITR 497.
3. The Departmental Representative submitted, that while disposing of the Miscellaneous Petition the Tribunal did not consider in the right perspective rule 2(ii)(b) of the Income Tax Appellate Tribunal Rules, 1963 and also did not consider in the right perspective the decision of the Madras High Court in CIT v. ITAT (1987) 167 ITR 250 (Mad) as well as the decision in CIT v. P.N.N. Bank Ltd. (1969) 72 ITR 497.
4. On a query from the Bench as to whether a second Miscellaneous Petition will lie and whether it could be entertained by the Tribunal in view of the decision of the Orissa High Court in CIT v. ITAT (1992) 196 ITR 838 (Ori), the Departmental Representative, drawing support from the decision of the Supreme Court in S. Sankappa v. ITO (1968) 68 ITR 760 (SC) replied in the affirmative. In this case, the Honble Supreme Court held that the order of rectification is also an assessment order and on the same analogy, the order of the Tribunal passed in the first instance in Miscellaneous Petition can also be treated as an order of the Tribunal and therefore further Miscellaneous Petition will lie against it. The learned Departmental Representative submitted that by virtue of section 116 of the Income Tax Act, 1961, the Departmental Representative is an income-tax authority and therefore the officer can act before the Tribunal/or the purpose of the Income Tax Act, 1961. The presentation of the case and arguments or filing the written submissions or Miscellaneous Petition is for the purpose of the Income Tax Act and hence the Departmental Representative is entitled to file Miscellaneous Petition. The Departmental Representative further submitted that the view taken by the Tribunal does not appear to be correct since its decision does not take into account the provisions contained in rule 2(ii)(b) of the Income Tax Rules, 1963, and view is also contrary to the decision of the Madras High Court in ITAT (supra). The learned Departmental Representative, inviting our attention to the decision in R.N.N. Bank Ltd.s case (supra), submitted that it is not correct to say that only the assessing officer can file Miscellaneous Petitions. In this case the Madras High Court held that Commissioner of Income Tax is also competent to file reference applications and the assessing officer can also file such application on behalf of the Commissioner. In the case in ITAT (supra) the Madras High Court held that when the senior representative signed for the Commissioner, he was not signing the application in his individual capacity nor could he be treated as an individual applicant invoking the jurisdiction of the Tribunal under section 256(1) of the Income Tax Act, 1961. It is not necessary for the Commissioner to sign the application if there is an authorisation for the senior representative to sign on behalf of the Commissioner. The fact, that the Commissioner had not signed the application could not be a ground for rejection of the same, the High Court held. In view of the above, the learned Departmental Representative submitted that the Tribunals order in the Miscellaneous Petition No. 124/Coch/98 may be rectified.
4. On a query from the Bench as to whether a second Miscellaneous Petition will lie and whether it could be entertained by the Tribunal in view of the decision of the Orissa High Court in CIT v. ITAT (1992) 196 ITR 838 (Ori), the Departmental Representative, drawing support from the decision of the Supreme Court in S. Sankappa v. ITO (1968) 68 ITR 760 (SC) replied in the affirmative. In this case, the Honble Supreme Court held that the order of rectification is also an assessment order and on the same analogy, the order of the Tribunal passed in the first instance in Miscellaneous Petition can also be treated as an order of the Tribunal and therefore further Miscellaneous Petition will lie against it. The learned Departmental Representative submitted that by virtue of section 116 of the Income Tax Act, 1961, the Departmental Representative is an income-tax authority and therefore the officer can act before the Tribunal/or the purpose of the Income Tax Act, 1961. The presentation of the case and arguments or filing the written submissions or Miscellaneous Petition is for the purpose of the Income Tax Act and hence the Departmental Representative is entitled to file Miscellaneous Petition. The Departmental Representative further submitted that the view taken by the Tribunal does not appear to be correct since its decision does not take into account the provisions contained in rule 2(ii)(b) of the Income Tax Rules, 1963, and view is also contrary to the decision of the Madras High Court in ITAT (supra). The learned Departmental Representative, inviting our attention to the decision in R.N.N. Bank Ltd.s case (supra), submitted that it is not correct to say that only the assessing officer can file Miscellaneous Petitions. In this case the Madras High Court held that Commissioner of Income Tax is also competent to file reference applications and the assessing officer can also file such application on behalf of the Commissioner. In the case in ITAT (supra) the Madras High Court held that when the senior representative signed for the Commissioner, he was not signing the application in his individual capacity nor could he be treated as an individual applicant invoking the jurisdiction of the Tribunal under section 256(1) of the Income Tax Act, 1961. It is not necessary for the Commissioner to sign the application if there is an authorisation for the senior representative to sign on behalf of the Commissioner. The fact, that the Commissioner had not signed the application could not be a ground for rejection of the same, the High Court held. In view of the above, the learned Departmental Representative submitted that the Tribunals order in the Miscellaneous Petition No. 124/Coch/98 may be rectified.
5. Opposing the above submission, the learned counsel for the assessee submitted that first of all a Miscellaneous Petition against a Miscellaneous Petition would not lie in the light of the decision of the Orissa High Court in ITAT (supra). In this case, the Hon’ble High Court held that section 254(2) of the Income Tax Act, 1961 empowers the Tribunal to amend any order passed by it under subsection (1) with a view to rectify any mistake apparent from the record at any time within four years from the date of the order. Therefore, to rectify an order by means of a miscellaneous petition the mistake should be one committed under sub-section (1) of section 254. So also relying on the decision of the Orissa High Court in CIT v. Jagabandhu Roul (1984) 145 ITR 153 the learned counsel submitted that the Tribunal had no power to review its own order. The power given under section 254 is a right of rectification of a mistake apparent, on the face of the record. The learned counsel for the assessee, for the same proposition relied on the decision of the Bombay High Court in CIT v. Ramesh Electric & Trading Co. (1993) 203 ITR 497 (Bom).
5. Opposing the above submission, the learned counsel for the assessee submitted that first of all a Miscellaneous Petition against a Miscellaneous Petition would not lie in the light of the decision of the Orissa High Court in ITAT (supra). In this case, the Hon’ble High Court held that section 254(2) of the Income Tax Act, 1961 empowers the Tribunal to amend any order passed by it under subsection (1) with a view to rectify any mistake apparent from the record at any time within four years from the date of the order. Therefore, to rectify an order by means of a miscellaneous petition the mistake should be one committed under sub-section (1) of section 254. So also relying on the decision of the Orissa High Court in CIT v. Jagabandhu Roul (1984) 145 ITR 153 the learned counsel submitted that the Tribunal had no power to review its own order. The power given under section 254 is a right of rectification of a mistake apparent, on the face of the record. The learned counsel for the assessee, for the same proposition relied on the decision of the Bombay High Court in CIT v. Ramesh Electric & Trading Co. (1993) 203 ITR 497 (Bom).
6. Considering the submissions of the contending parties and going through the decision cited above, we are unable to agree with the learned Departmental Representative. Rule 2(ii)(b) of the Income Tax (Appellate Tribunal) Rules, 1963 defines the authorised representative as under:
6. Considering the submissions of the contending parties and going through the decision cited above, we are unable to agree with the learned Departmental Representative. Rule 2(ii)(b) of the Income Tax (Appellate Tribunal) Rules, 1963 defines the authorised representative as under:
“Section 2(ii) Authorised representatives means
(b) in relation to an Income Tax Authority who is a party to any proceeding before the Tribunal, a person duly appointed by the Central Government by notification in the Official Gazette as authorised representative to appear, plead and act for such authority in any such proceeding and any other person acting on behalf of the person so appointed.”
It states that a person who can represent the department before the Tribunal is a person who has been appointed by the Central Government by a Notification in the Official Gazette. In other words, if there is no authorisation by the Central Government and publication of the Notification in the Official Gazette such person cannot act on behalf of the department before the Tribunal, though such officer is an authority for the purpose of the Income Tax Act. Section 254(2) reads as under:
“Section 254(2) : The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the assessing officer.”
7. A reading of this section makes it clear that the mistake which is required to be rectified must be one arising from the order passed by the Tribunal under sub-section (1) of section 254. The revenue is challenging the order passed under section 254(2). Therefore, on this reason also the revenue s appeal is liable to be dismissed. Secondly section 254(2) states that such apparent mistake should be brought to the notice of the Tribunal either by the assessee or the assessing officer. The Departmental Representative, by any stretch of imagination, can be treated as the assessing officer. The Departmental Representative may be an officer for the purpose of the Income Tax Act. But before the Tribunal the Departmental Representative gets the power to appear, to plead and to act by virtue of appointment by the Central Government, and by notification in the Official Gazette. Therefore, even if an assessing officer is appointed by the Central Government to appear, to plead and to act before the Tribunal, the officer represents the department before the Tribunal not in his capacity as the assessing officer but only because of the Notification issued by the Central Government. Since section 254(2) specifically states that only an assessing officer can bring the mistake to the notice of the Tribunal, it means that only the assessing officer can file Miscellaneous Petition.
7. A reading of this section makes it clear that the mistake which is required to be rectified must be one arising from the order passed by the Tribunal under sub-section (1) of section 254. The revenue is challenging the order passed under section 254(2). Therefore, on this reason also the revenue s appeal is liable to be dismissed. Secondly section 254(2) states that such apparent mistake should be brought to the notice of the Tribunal either by the assessee or the assessing officer. The Departmental Representative, by any stretch of imagination, can be treated as the assessing officer. The Departmental Representative may be an officer for the purpose of the Income Tax Act. But before the Tribunal the Departmental Representative gets the power to appear, to plead and to act by virtue of appointment by the Central Government, and by notification in the Official Gazette. Therefore, even if an assessing officer is appointed by the Central Government to appear, to plead and to act before the Tribunal, the officer represents the department before the Tribunal not in his capacity as the assessing officer but only because of the Notification issued by the Central Government. Since section 254(2) specifically states that only an assessing officer can bring the mistake to the notice of the Tribunal, it means that only the assessing officer can file Miscellaneous Petition.
8. Even otherwise, vide para 6 of its order, the Tribunal had already taken the view that the Departmental Representative cannot file Miscellaneous Petition, and even the second Miscellaneous Petition filed again by the Departmental Representative is liable to be dismissed on this ground also.
8. Even otherwise, vide para 6 of its order, the Tribunal had already taken the view that the Departmental Representative cannot file Miscellaneous Petition, and even the second Miscellaneous Petition filed again by the Departmental Representative is liable to be dismissed on this ground also.
9. For the reasons stated above, the Miscellaneous Petition filed by the revenue fails and is dismissed.
9. For the reasons stated above, the Miscellaneous Petition filed by the revenue fails and is dismissed.
