1. These are two miscellaneous applications directed against the order of the Tribunal in WT Appeal No. 449 (Bom.) of 1984 dated 21-1-1985.
The first miscellaneous application is filed by the advocate for the assessee and the other by the chartered accountant. Both these applications refer to certain mistakes which have crept into the order of the Tribunal and have sought for rectification of the same. As far as the first miscellaneous application is concerned, it refers to certain mistakes which have affected the assessee adversely. The miscellaneous application by the chartered accountant in addition to the above has also sought correction of mistakes which have affected him as a professional.
2. The assessee filed an appeal against the order of the Commissioner (Appeals) dated 22-11-1982 for the assessment year 1969-70. The appellate order was served on the assessee on 12-12-1982, but the appeal before the Tribunal entered as WT Appeal No. 449 (Bom.) of 1984 was filed only on 29-2-1984 with a delay of one year and 19 days. The assessee presented an application for condonation of the delay and admission of the appeal on 6-12-1984. The application was accompanied by the assessee's own affidavit and the affidavit of Shri D.M. Sathe, chartered accountant. The assessee's affidavit gave the reason for the delay to his own ignorance of procedure in these matters and has having acted on the advice of the junior assistant of Shri Sathe. Shri Sathe's affidavit narrated the events leading to the delay which occurred in the filing of the appeal. Apparently, after the receipt of the order from the Commissioner (Appeals) the chartered accountant directed his assistant to file a revision petition before the Commissioner (Administration) instead of filing an appeal to the Tribunal. Coming to know, subsequently, that the proper thing was to file an appeal to the Tribunal he tried to do so and in this connection took the aid and advice of one Shri Navnithbhai Somaiya, a senior counsel. The explanation was that on account of certain difficulties of the said Shri Somaiya, the chartered accountant Shri Sathe had to get back the papers and file the appeal thereafter, thus, resulting in the above-mentioned delay. The Tribunal heard the matter at length and dismissed the appeal as barred by time. It is against this order of the Tribunal that the above two miscellaneous applications have been filed.
3. The learned counsel for the assessee has pointed out that at least three major mistakes have crept in the order of the Tribunal, which require correction and amendment, with consequential result on the appeal itself. It is pointed out that the assessee's claim with regard to the delay was firstly that in the case of an order definitely illegal and not sustainable in law, either fully or partly no question of limitation applies. Secondly, there was sufficient reason for the delay and on the basis of this the Tribunal should have condoned the delay and admitted the appeal. Factually, the chartered accountant's explanation for the delay supported by his as well as the assessee's affidavit has not been looked into by the Tribunal. In fact, without giving the professional chartered accountant an opportunity to defend himself or to explain the position set up by his affidavit, the Tribunal has passed damaging remarks which might affect even his professional career. Reference is made in this connection to the following at paragraph 16 of the Tribunal's order : We are not impressed by the explanation, which tries to shift the blame on the senior chartered accountant, Shri Navnithbhai Somaiya, who is no where in the picture. In fact, a perusal of the affidavits of the appellant and his chartered accountant, Shri D.M. Sathe, would show that both of them try to pass on the blame to the senior chartered accountant, who is alleged to have let them down at the last moment. To our mind, the explanation offered by the appellant and his chartered accountant seems to be a mere device and a ruse to cover up the laches on the part of the appellant and to save limitation by passing on the blame to the senior chartered accountant alleged to have consulted by them.
It is also alleged that though mention is made of some of the decisions of the High Court and the Supreme Court which are directly in favour of and support the assessee's case, how these do not support him is not indicated. The learned counsel, therefore, has urged that if these mistakes are corrected, the picture that would emerge would certainly give rise to a different decision on the issue by the Tribunal.
4. Elaborating his points the learned counsel has pointed out that he produced before the Tribunal 16 items in support of his condonation application. Of these, the Tribunal looked into three and returned the balance of 13. The assessee, thus, did not get an opportunity at all to present his case as far as these materials are concerned. These materials, which the assessee was prevented from producing, clearly want to show that the WTO's order stood legally vitiated. Several decisions of the High Courts and the Supreme Court indicate that where any order is contrary to the provisions of law or pointed out to illegality at the face of it, limitation provisions under specific enactments do not apply.
5. In the present case in working out the net wealth of the assessee for the assessment year under appeal, viz., 1969-70 the WTO included certain cash credits which were added as the income of the assessee for the subsequent assessment year, viz., 1970-71. The assessment order for 1970-71 was the subject-matter of appeal before the Tribunal. The Tribunal set aside the order on the ground that in respect of these additions on account of cash credits the ITO has failed to meet the elementary requirements of natural justice. The ITO was directed to give an opportunity to the assessee to produce the creditors, etc., to examine them, if necessary and ultimately to come to a conclusion on the genuineness of the credits. Thus, not only was there is a setting aside of the order with regard to these cash credits, but also a clear finding that their additions were made by not following legal procedure. Subsequent to the order of the Tribunal, the assessee took the matter before the Settlement Commission. The Commission came to the conclusion that the cash credits added did not pertain to the year under consideration, viz., 1969-70, but to an earlier year. As far as the Settlement Commission was concerned, therefore, the addition was not sustainable. The ITO had not rectified the illegality flowing out of the failure to observe the principles of natural justice.
Ultimately, no order was passed by him and the cash credits did not stand added to the total income of the assessee. According to the learned counsel, in the first place the addition made to the net wealth of the assessee for the assessment year 1969-70 was based on the assessment order of 1970-71. In respect of this latter order the direction of the Tribunal and the action of the Settlement Commission together resulted in the deletion of the addition itself. More important this than the direction given by the Tribunal with regard to the following of the principles of natural justice stood uncomplied with. What, thus, was a basic legal infirmity in the income-tax order automatically came over to the wealth-tax assessment order for the assessment year under appeal. There was, thus, an illegality on the face of this wealth-tax order.
5.1 According to the learned counsel, there was also another serious legal infirmity equally clear from the wealth-tax order under appeal.
The Wealth-tax Act, 1957 ('the Act') gives the right to tax the net wealth of an assessee. That is a net amount obtained by reducing from the gross amount a relative deduction. This is the scope of the Act and anything to the contrary would be illegal and unconstitutional as is clear from the decision of the Supreme Court in the case of Sudhir Chandra Nawn v. WTO [1968] 69 ITR 897. What the WTO has done in the present case is to tax the alleged cash credits without deduction of the relevant income-tax payable, which would have been a charge on the same the moment it is treated as an income of the assessee and later on to be considered as his wealth. According to the learned counsel, therefore, the order of the WTO carried on its face these twin illegalities, one non-compliance with the positive binding directions of an appellate authority, viz., the Tribunal and the illegal and unconstitutional inclusion of the property of the assessee and not the net wealth which alone is taxable under the Act. Relying on several decisions, it is pointed out that this clear illegality on the face of the order rendered any limitation under the statutes non-applicable to the case. The Tribunal by not permitting the assessee to refer to the assessment order, Tribunal's order, etc., relevant to the above issue, those being summarily returned to the assessee prevented him from producing materials relevant to the decision. Since these papers were actually handed over to the assessee and not even allowed to be put on record, it was a clear case of the Tribunal erroneously refusing to look into relevant material.
6. It is also pointed out, referring to several decisions, that limitations apply to a valid order and not to an invalid order. In this connection, reference is made to the decision in AIR 1971 SC 1588, (1981) Excise Law Times, 918 (Bombay) (1981) Excise Law Times 531 (1981), (Bombay) (1985) Excise and Customs Cases 270 (Bombay) and (1983) Excise Law Times 281 (Delhi).
7. On the question of appreciating the reasons for the delay, the affidavit of the chartered accountant and the assessee was before the Tribunal. The chartered accountant himself was present. Two letters the chartered accountant had written to Shri Navnithbhai Somaiya were also produced. The Tribunal did not look into these last two. It also did not cross-examine either the assessee or the chartered accountant before throwing out their affidavits and passing remarks on their conduct. As laid down by the Supreme Court in the case of Mehta Parikh & Co. v. CIT [1956] 30 ITR 181 an affidavit cannot be thrown out without cross-examination or showing it to be wrong. While this would be the position even in a normal case, in the present case the Tribunal has passed certain uncalled for remarks imputing manipulation and creating 'a devise' on the part of a professional subject to the disciplinary jurisdiction of a professional body. This, according to the learned counsel, was not only unjustified but positively erroneous.
The cases cited for the assessee especially the decision of the Supreme Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh [1979] 118 ITR 326 indicated the latest trend on the question of ignorance of law. Even though there was no mala fides or mistakes on the part of the assessee, who was to be guided solely by the advice of an expert, the Tribunal ignored the decisions of the Supreme Court in not exonerating the assessee. In fact the expert's inadvertant reliance on a possible revision to the Commissioner (Administration) has been almost condemned by the Tribunal, though it was bona fide and there was nothing to show that the chartered accountant purposely made the mistake. These remarks of the Tribunal would also land the professional chartered accountant who has done his duty bona fide into difficulties both with regard to his professional discipline and also damages. Incidentally, it is pointed out that the ' Tribunal itself has fallen into an error in saying that the assessee had two forums of relief. The mistake committed by the chartered accountant that there could be a revision from the Commissioner (Appeals) to the Commissioner of Income-tax (Administration) had been also committed by the Tribunals themselves when they mention at paragraph 14 : There can hardly be any dispute that the two remedies provided under the Act, viz., a revision petition to the Commissioner of Wealth-tax and an appeal to the Appellate Tribunal, are two entirely and distinct remedies and if an assessee chooses one remedy he cannot have recourse to the other. This would be clear from Clause (a) of the proviso to Section 25(1) of the Wealth-tax Act....
Apparently, the Tribunal also fell into an error in believing that there could be a revision petition from the Commissioner (Appeals) to the Commissioner (Administration). Yet, according to the learned counsel, the Tribunal would not accept the affidavit of the chartered accountant that there was a bona fide mistake on his part. It is prayed that the adverse remarks about the chartered accountant were certainly uncalled for and should be expunged at any rate. It is also pointed out that even Shri Somaiya personally appeared with the chartered accountant Shri Sathe before the Commissioner of Income-tax (Administration) in connection with the revision petition. All these clearly indicated that by not looking into some of the evidences produced and which were material to the decision, the Tribunal committed an error which required rectification.
8. For the department, it is pointed out that the only question before the Tribunal was one of condoning the delay in filing the appeal. The question relevant in this connection was whether there was sufficient material for the purpose. Whether the material produced was relevant for coming to a conclusion or not was for the Bench of the Tribunal to consider. Whether it gave a particular weight to a particular item of evidence or more or less was a matter entirely for the Tribunal and would not give rise to any mistake apparent from record. All the evidence and material produced by the assessee was considered by the Tribunal. There was no mistake apparent from record. The Tribunal considered only the question of limitation. Whatever was argued before it was duly considered and its decision brought out in the order. The learned counsel referred to the decision in the case of CIT v. Tribune Trust [1948] 16 ITR 214 (PC) which shed considerable light on the duty of an authority in the context. Rectification can be made of a mistake apparent from the record. No such mistake has been established in terms of the well settled decision in T.S. Balaram, ITO v. Volkart Bros.
[1971] 82 ITR 50 (SC). In fact any illegality in the order of the WTO or the Commissioner has not been even raised or argued before the Tribunal. All the decisions referred to by the assessee including Rafiq v. Munshilal AIRConcord of India Insurance Co. Ltd. v. Smt. Nirmala Devi [1979] 118 ITR 507 (SC) have been looked also.
There was no mistake apparent from the record which required correction. The decision of the Tribunal in not condoning the delay was correctly made.
8.1 On a consideration of the facts and the several decisions referred to, we hold that certain materials which the assessee wanted to be seen had either been not allowed to be produced or not been looked into earlier. The records indicate that out of 16 items of evidence sought to be produced by the assessee in connection with the condonation of the delay, the Tribunal took in for consideration only the first three and returned the balance of 13. In fact, there is note on the file against these 13 items 'returned to counsel as not relevant'.
Apparently, this indicates that the Tribunal has not seen these materials. These 13 items include the order of the ITO for the assessment year 1970-71, order of the Tribunal for the assessment year 1970-71, the application and order of the Settlement Commission and the letters of the WTO and the chartered accountant. It is out of the order of the Tribunal and the Settlement Commission that the learned counsel has sought to point out that there has been a clear illegality resulting from non-compliance with the appellate authority's order and also non-adherence to the principles of natural justice pointed out by the appellate authority. Also arise from these orders the other points made out about the inclusion of an amount as net wealth for the year 1969-70 without support from the foundation order of 1970-71 where the original addition was made but which has been deleted. There was also the further inclusion of an entire asset as against the 'net asset' which is only includible for purposes of wealth-tax-Sudhir Chandra Nawn's case (supra). Apparently by returning these documents the assessee was handicapped by not being able to rely on these arguments or grounds in support of his case.
8.2 We also find that an apparent error has crept into the order of the Tribunal by treating a revision application from the Commissioner of Income-tax (Appeals) to the Commissioner of Income-tax (Administration) as a valid remedy set against the alternative remedy of appeal to the Tribunal. While there could be a revision from the AAC to the Commissioner (Administration) clearly there was no provision for such revision from the Commissioner of Income-tax (Appeals) to the Commissioner (Administration). It cannot be said that the chartered accountant deliberately made this mistake. Perhaps, especially when the chartered accountant was present before the Tribunal, it need not have passed adverse comments which might lead the chartered accountant to damage proceedings or proceedings under the disciplinary jurisdiction of a professional body. Mistakes, therefore, in our view have crept into the order of the Tribunal which does require rectification.
9. The decisions cited by the learned counsel including those of the Supreme Court go to show that where there is an illegality in an order, the limitation provisions do not apply. This is clear from the decisions of the Supreme Court in Shiv Shanker Dal Mills v. State of Haryana AIR 1980 SC 1037, Madras Port Trust v. Hymanshu International AIR 1979 SC 1144 and the decision of the Madras High Court in Asia Tobacco Co. Ltd. 1985 FCR 1637. The other authorities like the Supreme Court's decision in Hindustan Sugar Mills v. State of Rajasthan AIR 1981 SC 1681 and Patel India (P.) Ltd. v. Union of India AIR 1973 SC 1300 also lay down the same principles of a non-too technical an approach where substantial injustice is sought to be perpetrated. If the material referred to before us had been considered earlier, we have no hesitation in coming to the conclusion that the decision of the Tribunal would have been different. Consideration of these warrants condoning of the delay partly because limitation may not apply and partly because the reasons given for the delay should be regarded as reasonable. The delay is condoned and the appeal admitted. The grounds of appeal on merits will be considered in due course. The miscellaneous applications are partly allowed.
1. I have gone through the order of my learned brother, but, unfortunately, I am not able to persuade myself to agree with the view taken by him.
2. The arguments put forth by the learned counsel for the assessee and the learned departmental representative are elaborately incorporated in the order of my learned brother. Therefore, there is no need to state the same again. The only thing to be seen is whether we can condone the delay of one year and 19 days which, according to the Tribunal, was not for a reasonable cause as has been said in the order of the Tribunal in WT Appeal No. 449 (Bom.) of 1984. The main argument of Shri Juneja, the learned counsel for the assessee, was that cases cited by him are not properly considered. Therefore, the order of the Tribunal was erroneous. His second main submission was that the affidavits of the assessee and his chartered accountant which were before the Tribunal were not fairly considered and the same were rejected without examination of the parties. He also submitted that as the relevant order of the WTO was erroneous and illegal, therefore, the provisions of limitation are not applicable in this case. On the other hand, Shri Roy Alphanso, the learned departmental representative, submitted that Shri Juneja was heard at length at the time of the hearing of the appeal and after hearing him in full only, the Tribunal came to the conclusion that the delay in filing of the appeal was not for any reasonable cause, and, therefore, it was not condoned and the appeal was rejected only on that point.
3. We have heard the rival submissions. Though Shri Juneja submitted that he was not heard in full on limitation, but no specific argument on that point was brought to our notice which was not considered by the Tribunal so far as the issue of limitation is concerned. After considering the arguments in this miscellaneous application and after going through the order of the Tribunal, in my view, to condone the delay on the basis of the record available on the file would amount to a review, especially when the learned counsel for the assessee was heard at length on the issue, the cases were referred in the order of the Tribunal and the affidavits in question were dealt with. Whether they are properly dealt with or not, that we cannot say at this stage.
It is not apparent mistake from the record which can be rectified under the miscellaneous applications.
REFERENCE UNDER SECTION 24(11) OF THE WEALTH-TAX ACT, 1957 IN MISC.APPLICATION NOS. 34 AND 46 (BOM.) OF 1985 These miscellaneous applications were heard by Dr. V. Balasubramanian, Senior Vice President and me (Y. R. Meena, Judicial Member) on 23-9-1985. As both the Members have expressed different opinions on the issue of condonation of delay in filing the appeal before the Tribunal, the following question is referred to the Hon'ble President under Section 24(11) of the Act, for appointing a Third Member to hear the miscellaneous application so that the same may be decided in accordance with the majority view : Whether the condonation of delay of one year and 19 days in filing the appeal, in an order on miscellaneous application will amount to review of the order in WT Appeal No. 449 (Bom.) of 1984 dated 21-1-1985? 1. On a difference of opinion between the learned Members who heard these miscellaneous applications, the following point of difference has been stated : Whether the condonation of delay of one year and 19 days in filing the appeal, in an order on miscellaneous application, will amount to review of the order in WT Appeal No. 449 (Bom.) of 1984 dated 21-1-1985 2. Briefly stated the relevant facts are : the assessee is an individual and the proceedings relate to his wealth-tax assessment for the assessment year 1969-70. The WTO, it may be stated, completed the wealth-tax assessment in the case of the assessee for the assessment years 1967-68 to 1974-75 on 7-3-1979. The speaking order is passed for the assessment year 1967-68 which has been followed in all other assessment years. The assessee's appeals for the assessment years 1969-70 and 1970-71 have been disposed of by a consolidated order by the Commissioner (Appeals) by his order dated 22-11-1982 in terms of which he has reduced the inclusion of an amount of Rs. 10,29,500 representing cash credits in the wealth of the assessee by Rs. 5,05,022. The above order was served on the assessee on 12-12-1982. The assessee, it further appears, filed a revision petition before the Commissioner on 2-3-1983, which was rejected by the Commissioner vide his order dated 13-12-1983 served on the assessee on 17-12-1983. The petition has been rejected on the ground that the appeal having been decided by the Commissioner (Appeals), revision petition did not lie to the Commissioner.
2.1 On receipt of the above order, the assessee has paid fees for filing an appeal before the Tribunal on 26-12-1983 and has filed appeal before the Tribunal on 29-2-1984. It is common ground that the appeal before the Tribunal is prima facie barred by limitation by one year and 19 days.
3. It was submitted before the Tribunal that the delay in filing the appeal before the Tribunal was on account of wrong advice given by Shri Sathe, chartered accountant and for the indifferent attitude of the senior counsel Shri Somaiya and, therefore, the delay required to be condoned. It was urged that the order of assessment was, in any event, bad and illegal to such an extent that period of limitation will not apply for filing an appeal against the order of the Commissioner (Appeals). For detailed reasons given in its appellate order dated 21-1-1985 the Tribunal has dismissed the assessee's appeal in limine on the ground of limitation. In the view they had taken they have not considered it necessary to deal with the other contentions urged by the learned counsel for the assessee and/or to examine the authorites cited by him in support thereon. On receipt of the appellate order on or about 17-2-1985, the two counsels for the assessee Shri P.L. Juneja and Shri Sathe have filed separate miscellaneous applications dated 28-2-1985 and 20-3-1985 registered in the office of the Tribunal as Miscellaneous Application Nos. 34 and 46 (Bom.) of 1985 on 6-3-1985 and 30-3-1985, respectively. It is pertinent to mention that after the filing of the Miscellaneous Applications, but before the application was heard by the Bench, Shri P.L. Juneja, the learned counsel for the assessee, submitted written arguments along with forwarding letters dated 28-7-1985 and 5-8-1985. Shri Sathe has also made his written submissions dated 18-7-1985. In the course of proceedings something happened and the learned Members who had heard the appeal originally declined to hear the miscellaneous applications. The counsel for the assessee had also requested that his client's miscellaneous application should be heard by another Bench. It is in this background that the miscellaneous applications have come to be heard by the Bench constituted of different Members on 23-9-1985 and 24-9-1985.
4. It is evident from the point of difference as formulated by the learned Members that if they were hearing the appeal and not the miscellaneous applications, they would have condoned the delay of one year and 19 days. However, the learned Judicial Member has taken the view that the condonation of delay in these proceedings will amount to reviewing the appellate order and the Tribunal does not have any such power. The precise point of difference, thus, is whether condoning the delay in these proceedings would amount to review of the appellate order dated 21-1-1985.
5. Parties have been heard. Shri P.L. Juneja, the learned counsel for the assessee, has taken me through his written submissions made before the Bench from time to time. He has also cited a number of cases for the purpose of showing that a Judge should be courageous enough to acknowledge his errors and should pass a speaking order and that limitation does not apply in the case of appeal against void orders. He has also taken me through the appellate order dated 21-1-1985 to show that the order at least suffers from two patent and obvious mistakes of law, namely : (i) the Tribunal has wrongly assumed that there were two alternative remedies available to the assessee, i.e., of filing a revision petition before the Commissioner under Section 25(1) of the Act and of filing an appeal before the Tribunal under Section 24 and (ii) that there is no material to show that Shri Navnithbhai Somaiya had agreed to file the appeal on behalf of the assessee but had declined to do so at the last moment. It is stated that both these assumptions are wrong and the appellate decision of the Tribunal having been based mainly on these two assumptions, it cannot but be held that the appellate order suffered from a patent and obvious error of law.
Shri Kamat, the senior departmental representative has, on the other hand, stated that so far as the observation regarding alternative remedies available to the assessee is concerned, the Tribunal's decision is not based on that assumption at all. For this purpose, he has invited our attention to paragraph 16 of the appellate order in which there is not a whisper about the alternative remedy. As regards the observation that there is no material on record about Shri Navnithbhai Somaiya's involvement, the departmental representative stated that the observation has to be understood in the context of the fact that the assessee has not produced any document from Shri Navnithbhai Somaiya indicating his involvement. The affidavits filed by the assessee and his junior chartered accountant, Shri Sathe, are self-serving statements and do not constitute any material at all.
According to him the appellate order of the Tribunal does not suffer from any mistake at all far less a mistake patent and obvious of fact or law or both.
6. I have heard the parties and have gone through the appellate order of the Tribunal dated 21-1-1985, the orders of the learned Members on the miscellaneous applications and the order passed by the Members under Section 24(11) stating the point of difference carefully.
According to me, there is no difference of opinion between the learned Members who have heard the miscellaneous applications about the merits of their conclusion, viz., that delay should have been condoned. The only difference is while according to the learned Vice President, delay of condonation in these proceedings will only be rectification of the appellate order, the learned Judicial Member has taken the view that it will amount to review of the appellate order which the Tribunal cannot do.
6.1 In this context, it is desirable to mention that the Tribunal has reproduced the affidavit of the assessee and the affidavit of the assessee's chartered accountant, Shri Sathe, in paragraphs 3 and 4 of the appellate order. It has referred to the assessee's submissions in paragraphs 5, 6 and 8 of the appellate order. The submissions made on behalf of the revenue have been incorporated in paragraph 7 of the order. The Tribunal's order is found in paragraphs 9 to 16 of the order. It is of significance that the Tribunal has in its appellate order observed that there were two entirely and distinct remedies available to the assessee after his appeal was disposed of by the Commissioner (Appeals) and that if the assessee chose one remedy, he could not have recourse to the other. This aspect of the matter has been dealt with by the Tribunal in paragraph 14 of its order, which reads as under : 14. In the light of the above-mentioned principles, when we examine the facts of the present case, we find that the assessee has taken shelter under the plea that he is totally ignorant of the intricacies of the procedure in tax matters and that he had acted in good faith on the advice of the junior assistant of his chartered accountant, Shri. D.M. Sathe. It is seen from the affidavit of Shri D.M. Sathe that he had directed his junior assistant to file the revision petition instead of an appeal to the Tribunal, in order to get expeditious disposal and that his assistant had done accordingly, as Shri Sathe was out of station. There is no dispute before us that the revision petition to the Commissioner, Central-II, Bombay, was filed on 2-3-1983 by which time, the time for filing the appeal to the Appellate Tribunal, viz., 60 days from the date of the receipt of the order of the Commissioner (Appeals) had expired on 10-2-1983. There can hardly be any dispute that the two remedies provided under the Act, viz., a revision petition to the Commissioner and an appeal to the Appllate Tribunal, are two entirely and distinct remedies and if an assessee chooses one remedy he cannot have recourse to the other. This would be clear from Clause (a) of the proviso to Section 25(1) of the wealth-tax Act, which forbids the Commissioner from revising an order under that section in any case where the time within which an appeal to the Appellate Tribunal can be made, had not expired and where in the case of an appeal to the Appellate Tribunal, the assessee had not waived his right of appeal to the Appellate Tribunal. It is, therefore, clear that this is not a case of choosing a wrong forum by the appellant for prosecuting the proceedings, which would entitle him to plead that the time taken in prosecuting the proceedings before the wrong forums should be excluded. The department is, therefore, right in its contention that the question of excluding the time taken for presenting the revision petition to the Commissioner and its disposal, in computing the period of limitation in the present case does not arise, since the 60 days' time for filing the appeal to the Appellate Tribunal under Section 24(1) of the Wealth-tax Act was already over on 12-2-1983.
I also find that while dealing with the question whether Shri Navnithbhai Somaiya, the senior chartered accountant, was at all engaged by the assessee, the Tribunal has held vide paragraph 16 of the order that : 16. ... There is no material to show that Shri Navnithbhai Somaiya had agreed to file the appeal on behalf of the appellant, but that at the last moment he had declined to do so. On the contrary, the materials on record establish that it was only Shri D.M. Sathe who was preparing the appeal and arranging the filing of the appeal.
Since, I am inclined to accept the submission made on behalf of the assessee that these two assumptions are not correct and are wrong on the face of it. I have to hold that the appellate order from at least the above two glaring and obvious mistakes of law. The reason for my agreeing with the counsel for the assessee is that the appellate order in the case of the assessee was passed by the Commissioner (Appeals) who is certainly not an authority subordinate to the Commissioner. In this view of the matter, the assessee did not admittedly have the two alternative remedies. His filing a revision petition to the Commissioner was, thus, definitely a mistake. Similarly, when the assessee and his chartered accountant, Shri Sathe, have filed affidavits making averments as to how the senior chartered accountant, Shri Navnithbhai Somaiya, was in the picture and as to how he declined conducting the assessee's case at the last moment, one cannot say that there is no material, however trivial the said material might be, one cannot certainly expect Shri Navnithbhai Somaiya, the senior chartered accountant, to lead evidence to say that he had accepted the case but declined to conduct the case at the last moment. In any event, such an inference could not have been drawn without examining the assessee or Shri Sathe. Thus, to my mind, the appellate order suffers from the above two mistakes.
7. It is true that the Tribunal has no power to review its order and it is empowered by Section 254(2) of the Income-tax Act, 1961, only to rectify a glaring mistake of fact or law or both as held by the Supreme Court in the case of Volkart Bros. (supra). It is also true that mistakes detected by a long-drawn process of reasoning cannot be said to be mistakes apparent from record. However, when some mistakes which are apparent from record are found in the order, the Tribunal can and is duty bound to take all consequential steps, however debatable they might be, as a result of correction of the obvious and patent mistakes.
The power to amend includes the power to pass all consequential orders.
In this view of the matter, I am of the view that the above two mistakes of law requires to be rectified. Ordinarily, I would have held that the question of condonation of delay should now be examined afresh after ignoring the above two assumptions. Since, however, my jurisdiction as a Third Member in this case is limited to my agreeing with the view expressed by one Member or the other, I do not think I have any alternative except to hold that the condonation of delay in these proceedings as a result of the two mistakes will not amount to review of the appellate order dated 21-1-1985. Accordingly, I agree with the learned Vice President.
8. This order will now go to the Division Bench for deciding the appeal according to law in accordance with the majority view.
9. In the view I have taken it is not necessary to deal with other aspects of the matter which have been argued at length by the assessee's counsel.