5000TH POST: Understanding ITAT appeal under income tax

Today on the day of Makar Sakranti, I am  happy to post 5000th Post and for this I am thankful to all my well-wishers and patrons of  Taxbymanish

Now let us review few recent case laws which enable yourself in respect of ITAT procedure knowledge.

SN	Issue	Case law reference.
1	Stay Application	Income Tax Appellate Tribunal should dispose off stay granted appeals with in time limit prescribed under section 254(2A) i.e. not beyond 365 days from the stay order. Refer, Shri Jethmal Faujimal Soni vs. ITAT Reliance to be placed in the case of DHL Express (India) P. Ltd. vs. ACIT, where Mumbai ITAT held that There is no merit in the argument of the department that the stay application should be rejected outright since the assessee has not moved any petition before the Revenue Authorities seeking stay of  the demand. Seeking stay before the lower authorities is directory and not mandatory Besides considerations like existence of strong prima facie case, financial constraints of the applicant are important, even if not sole or qualifying consideration in entertaining a stay application, and therefore  stay granted to the assessee subject to certain conditions. Refer, KEC International Ltd. vs. Addl. CIT,. 136 TTJ 60 (Mum.) It is settled law that a Direct Stay Application filed before the Tribunal is maintainable and it is not the   requirement of the law that assessee should necessarily approach the CIT before approaching the Tribunal   for grant of stay. In deciding a stay application, the following aspects have to be considered: (i) liquidity  of the funds of the assessee to clear the tax arrears out of own funds at the relevant point of time based on  the assessee’s financial status at the time of the stay petition hearing; (ii) creditworthiness of the assessee to outsource the funds to clear the departmental dues; (iii) prima facie views on the likely decision of the  Tribunal on the issues raised in the appeal; (iv) departmental urgencies in matters of collection and  recovery; (v) guarantees provided by the assessee to safe guard the interest of the revenue etc. Refer, Honeywell Automation India Ltd. vs. Dy. CIT. Power of Tribunal to pass an order of stay is not confined to a case where an appeal is pending before  Tribunal, but also extends to any proceedings relating to an appeal pending before it.   Application under section 254(2) is maintainable against order passed by Tribunal granting stay. Refer, ITO vs. Vodafone Essar Ltd., 44 SOT 304 (Mum.)(Trib) Tribunal has power to grants stay beyond period of 365 days in cases where delay is not attributable to assessee even after amendments to sec 254(2A). Refer, Tata Communications Limited v ACIT, 10 Taxmann.com 151. The Tribunal has power to grant stay only till 365 days. In the instant case, the Tribunal had heard the appeal but had not disposed it off. Held, since the non-disposal was not occasioned due to default of the Petitioner, the stay was to operate till such disposal. The Tribunal was requested to disposeofthe appeal expeditiously and preferably within three months of receipt of certified copy of this order. Refer, Adobe Systems India P. Ltd. .v. JCIT, 365 ITR 376.   -Dept hauled up for “over-zealousness” and “ham-handed”  attempt to recover taxes in violation of stay order. Tribunal is duty-bound to order refund of  such taxes. Refer, DCIT v. ITAT.
2	Reconsideration	Reconsideration of the correctness of the earlier decision on merits, is beyond the scope of power conferred on the Tribunal under section 254 (2). Refer, CIT vs. Earnest Exports Ltd, 36 DTR 274. Remand by Tribunal to determine assess ability of  commission paid by one organisation in respect of Individuals working in various interconnected organizations was held to be justified. Refer, CIT .v. C. S. Srivatsan, 358 ITR 10.
3	Cross objection	Respondent can support the order of CIT (A) by taking any ground, though no cross objection had been filed. Refer, Cable News Network LP LLLP vs. Asst Director, 36 DTR 233 Cross objection at assessee’s instance in its own appeal is not maintainable. Refer, Vidya Institute vs. CIT, 3 ITR 491. Revenue filing appeal and the assessee filing cross objection before the Tribunal. Tribunal dismissed the  revenue’s appeal and not adjudicated the assesses cross objection. The Court held that the cross objection  to be decided. Refer, Ram Ji Dass & Co. vs. CIT, 220 Taxation 90 (P&H). There cannot be any cross objection of order passed under section 144C by DRP before July 1, 2012.  Refer, JC Bamford Investments v. Deputy DIT. The Hon’ble Guwahati High Court in CIT v. PurbanchalParbahanGosthi (1998) 234 ITR 663 (Gau.) has stated that there is no distinction between an appeal and a cross objection except for the time limit for filing the appeal being 120 days and that of CO being 30 days. Therefore, the learned DR’s objection that even a pure question of law cannot be taken up in a cross objection is without any merit. Refer, DCIT .v. Silver Line.    The Tribunal held that the assessee is duly entitled to raise plea by way of cross-objection as the same  goes to the root of the matter even through the assessee has not raised the plea of jurisdiction in  reopening the assessment before the Assessing Officer as well as CIT(A). Refer, ACIT v. Sterling Infotech Ltd, 153 TTJ 20
4	Speaking order	It is obligatory on the part of Tribunal to pass reasoned order and adjudicate the list on merits, by ascribing cogent and germane reasons after dealing with the factual issue in detail. Refer, Rajesh Maheshwari vs. ACIT, 36 DTR 43  Reliance to be placed in the case of K. D. Wires (P) Ltd. vs. CIT, 38 DTR 210 where it has been held that while deciding the appeal, Tribunal should deal with issues both on facts and law with reference to submissions urged and then return its own reasoning, quoting the finding of CIT (A) and simply upholding the same without its own reasoning is not proper.    Judicial order must be supported by sufficient reasons for coming to the conclusion. Failure to record  reason would violate the principles of natural justice and is against the basic concept of fairness and  transparency, therefore, orders passed by the CIT(A) and the Tribunal suffer from violation of principles   of natural justice can not be sustained. Refer, Iskraremeco Regent Ltd. vs. CIT, 237 CTR 239 That the order of the Tribunal did not disclose the facts considered on the basis of which it arrived at the conclusion in respect of the fixed deposits made by the friends and relatives of the managing director to the tune of Rs. 21,60,000. Admittedly, reasons are the links between the materials on which certain conclusions are based on the actual conclusions. In the absence of reasons based on consideration of facts by the Tribunal in the order to support its conclusion as regards the fixed deposit receipts of Rs. 21,60,000 its order could not be sustained. Matter remanded. Refer, Hastalloy India Ltd. v. Dy. CIT, 350 ITR 52(AP) (High Court). The Court observed that there was no discussion in the order of the Tribunal about the respective arguments of the parties. It did not contain the points for determination and its findings thereon. Even an order of affirmation by a higher authority requires that the authority should give its own reasons, may be, in brief for its concurrence with the order appealed. The Tribunal is under a legal obligation to record its own finding on the submissions of the parties, may be in brief, depending upon the facts and circumstances of the case. But if it does not contain any reason such an order is no order in the eyes of law and cannot be allowed to stand. In the opening portion of the order, the Tribunal noticed the grounds raised by the assessee in the memo of appeal. It had taken trouble to reproduce them but left them undecided. Definitely, the case merited a different treatment at the hands of the Tribunal. Refer, Abhyudaya Pharmaceuticals v. CIT, 350 ITR 358.
5	Judicial discipline	One bench can not differ from the view of another co-ordinate Bench. Judicial discipline requires reference to larger bench in case of difference in views between benches on identical facts. Refer, Mercedes Benz India Pvt. Ltd. vs. UOI, 252 E.L.T. 168 Reliance to be placed in the case of CLC & Sons (P) Ltd. vs. ACIT, 38 SOT 439, where if a member has already taken a view, it would be interest of judicial discipline to rescue himself from hearing of instant appeal. Issue of allowability of depreciation on good will is kept pending till the decision of High Court.
6	Earlier decision	The appellate Tribunal need not blindly follow earlier decision if it did not reflect the correct position of law. Refer, CIT vs. HI Tech Arai Ltd., 321 ITR 477. In the case of The Maharashtra State Co-operative Bank Ltd. vs. ACIT, 37 DTR 194, Principle of consistency qua judicial forums is not unexceptionable, if the subsequent Bench finds it difficult to follow the earlier view due to any convincing reasons, the earlier view cannot be thrust upon it, when a matter is referred to larger Bench, the appeal needs to be decided on merits rather than following the earlier view taken by the Tribunal in assessee’s own case.  Reliance to be placed in the case of CIT vs. Swapna Roy (Smt.), 40 DTR 193, where tribunal was not justified in dismissing the revenue’s appeal mechanically, merely to maintain  consistency, disregarding several issues decided by the Assessing Officer, more so when the tax effect  was substantial. It should have dealt with the issues adjudicated by the Assessing Officer by passing reasoned order instead of relying upon the outcome of the earlier assessment year. When the issue is already covered by an earlier order of Tribunal, that too in assesse’s own case, a coordinate bench of Tribunal should not differ the earlier decision of the bench simply for the reason that a  contrary view is possible. Refer, Patspin India Ltd. vs. Dy. CIT, 51 DTR 57
7	Additional ground.	Any party can raise an additional ground before the Tribunal for the first time, provided the necessary material for the adjudication of the additional ground is available on record. Refer, Dy. Director of IT vs. Scientific Atlanta Inc., 37 DTR 98.  Grounds of appeal raised by the revenue before the Tribunal challenging the order of the CIT (A), holding  that there was no PE of the assessee , a UK company ,in India is wide enough to admit the plea that the  assessee has PE in India under any clauses of Art 5 of the Indo –UK DTAA and therefore ,the plea of the  Revenue regarding existence of PE within the meaning of Art. 5 (2) (k) ,though not raised earlier , is well  within the parameters of the grounds of appeal. Refer, Jt CIT v Reuters Ltd, 133 TTJ (Mumbai) 22. Department is not entitled to raise additional grounds contrary to finding of Assessing Officer. The duty  of the learned Departmental representative is always confined to support the assessment order, he has  widest power to argue on the matter involved in the appeal, but with the limitation that he cannot set up a new case contrary to the finding of the Assessing Officer. If such course is allowed, then it will amount to the learned departmental representative revising the assessment order under the grab of his arguments by usurping the power under section 263, which incidentally lies only in the domain of the commissioner, hence, additional oral ground was refused. Refer, ITO vs. M. M. Textiles, 5 ITR 547 (Mum.)(Trib.) Alternative contentions raised by the assessee in the additional grounds of appeal before the Tribunal  claiming deduction of the impugned payment of non-compete fee as a deferred revenue expenditure over  the period of agreement or depreciation thereon in case the said fee is to be considered as giving rise to  acquisition of an intangible asset are pure questions of law not requiring investigation of fresh facts and   therefore, the additional grounds are admitted for adjudication. Refer, Orchid Chemicals & Pharmaceuticals Ltd. vs. ACIT, 48 DTR 441 (Trib.)(Chennai) Issue of disallowance under section 14A, cannot be raised for the first time before the Tribunal where the  provision of section 14A, was not invoked against the assessee by the Assessing Officer while making  disallowance of interest expenditure under section 36(1)(iii) and CIT(A ) also at no stage considered the  application of section 14A.. Refer, ACIT vs. Delite Enterprises (P) Ltd., 50 DTR 193  Additional ground raised before the  Tribunal was dismissed as the assessee had agreed to assumption of jurisdiction by Assessing  Officer. Refer, Archana Pandey (Smt.) v. ITO, 144 ITD 218
8	Retrospective amendment	Retrospective amendment after passing order does not lead to “apparent mistake”. Refer, ACIT vs. GTL Ltd. The Tribunal has no power to declare retrospective effect of amendment unconstitutional The Tribunal suomotu require additional evidence even after conclusion of hearing. Refer, L.G. Electronics India P. Ltd. v. ACIT, 140 ITD 41.
9	Power of ITAT	Assessee having claimed deduction under section 36(1)(vii), Tribunal was empowered to deal with the issue of allowability of the impugned amount as an expenditure under section 37(1)., Refer, CIT vs. Khaitan Chemicals & Fertilizers Ltd, 38 DTR 86.    Similar decision comes in the case of Asst CIT v Amarnath Reddy, 42 DTR (Chennai)(TM) (Trib) 449, where it was held that In the appeal filed by the department against deletion of disallowance of unaccounted expenditure under proviso to section 69C, it is entitled to raise a fresh plea before the Tribunal to consider the allowability or otherwise of the expenditure under section 37 (1) as the subject matter of the appeal remains the same.
10	Penalty appeal	An appeal against levy of penalty under section 271 is covered by cl. (d) of section 253(6), and the fee payable is Rs. 500 only. Refer, Dabwali Transport Company vs. ACIT, 38 DTR 434. IT (A) needs to keep penalty appeals in abeyance till disposal of quantum appeal. Refer, GE India Industrial (P.) Ltd. v. CIT(A), 83 DTR 173.
11	Opportunity of being heard.	Tribunal passing order relying on its own decision in another case. Assessee filing application contending that no opportunity given to deal with decision which had not been cited by either side when arguments were heard. The tribunal dismissed the application. The Court held that assessee to be given an opportunity to deal with distinguishable features of case relied on. Matter remanded to decide on merit. Refer, Inventure Growth and Securities Ltd. vs. ITAT, 324 ITR 319. Reliance to be placed in the case of Jagjivandas Nandlal & co v ITAT, 8 taxmann.com 9, where it was held that order passed by Tribunal without serving notice of hearing to assessee at its correct assress is unsustainable and is liable to be quashed and set aside since it is clearly in breach of principles of natural justice.
12	Misc. Petition	In view of alleged variation between the order pronounced by the Tribunal in the open Court on the conclusion of hearing on the sat application and the final order passed subsequently as regards the amount of deposit directed by the Tribunal. The Court directed the Tribunal to take up the hearing of the miscellaneous application filed by the assessee expeditiously to obviate any further complications. Refer, Asia Satellite Telecommunications Co. Ltd. vs. ADIT, 39 DTR 241 Once the Tribunal has disposed the appeal on merits, it cannot review its order and therefore, miscellaneous application filed by the assessee seeking modification of the order of Tribunal so as to   admit more additional evidence than that permitted by the order was rightly rejected by the Tribunal. Refer, Indrakumar Patodia vs. ITO, 51 DTR 183 The miscellaneous application filed by the assessee against earlier order passed under section 254(2) is   not maintainable only course open to the assessee is to file an appeal against the said order. Refer, Padma Prakash (HUF) vs. ITO, 51 DTR 1. Assesse was engaged in the business of leasing and hiring out plant, machinery, equipment, vehicles.  Assesee filed Return of Income claiming allowance u/s 32A of the IT Act @ 20% i.e. value of bottle  washer machine. The AO passed order u/s 143(3) rejecting claim of the assesee which was confirmed  order of CIT(A), relying on the judgment of CIT V. Narang Diary Products (1993) 219 ITR 478(SC).  Thereafter assessee filed MA u/s 254(2) praying for rectification of the order of Tribunal relying on  the judgment of the  Supreme Court in the case of CIT V. Shaan Finance (P) Ltd 231 ITR 308 (SC).  Tribunal allowed MA and recalled its earlier order in part, in so far as the same confirmed the disallowance of investment allowance. The Revenue preferred an appeal in HC challenging the  allowance of MA by Tribunal. The HC held that an order which is contrary to the judgment of the SC, enunciating a principle of law, it was assumed that what was enunciated by SC was in fact, the law from the inception. The Judgment of SC i.e. CIT v. Shaan Finance related directly to S/32A, which  was in issue in the case of the assessee. HC held that the Tribunal was therefore justified in recalling its order insofar as the same confirmed the disallowance of investment allowance on bottle washer  machine leased out as part of business Refer, CIT v. J.J. Leasing & Hiring Ltd, 266 CTR 588 The Tribunal dismissed the miscellaneous application filed by the Department and held that the  Assessing Officer has resorted to seek a review of the impugned order and made knowingly wrong  assertions in regard to the position of the return of the bank guarantee. It is unfortunate that the fate of the tax payers of India nevertheless rests in the hands of such officers who are always presumed to Tribunal applied the decision of the Supreme Court in act bona fide.  Refer, Dy. CIT .v. Motorola Solutions India (P) Ltd, 157 TTJ 385. The tribunal held that no professional has any right to invoke the judicial machinery for his own  interest without any reasons. If he does so it would amount to professional misconduct on the part of  the professional. In the instant case, CA has moved this application with a request to either recall or expunge the order sheet entry but he could not identify the particular observations of the Tribunal  which are injurious to the interest of the assessee or even to him. In view of above, this application is highly misconceived, contemptuous and is moved with the intention to browbeat and scandalize the Court. Refer, Omkar Nagreeya Sahkari Bank Ltd. .v. Dy.CIT, 143 ITD 703
13	Condonation of delay	Where the delay in filing the appeal before the Tribunal was caused due to the pendency of the application under section 154 before the CIT(A) and the assessee has shown just and sufficient cause for the delay in filling the appeal, Tribunal was not justified in refusing to condone the delay. Refer, Subhash Malik vs. CIT, 39 DTR 245. Held, advice, consequent to change of counsel, cannot be accepted as a proper reason for delay in  filing cross objections, without adducing any evidence on record. Refer, ACIT .v. Vistaar Systems (P.) Ltd, 59 SOT 114 The assessee filed cross objection which was delayed. The Tribunal condoned the delay on the ground that the appeals were fixed for hearing before the Tribunal for the first time on 12th October, 2011 and  the assessee filed the cross objections on 14th October, 2011. In condoning the delay the Tribunal followed the decision of Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and  others (1987) 167 ITR 471 (SC). Refer, ACIT .v. Kapil Dev, 157 TTJ 686.
14	Procedural	Members of the Tribunal do not become functus officio till the order is communicated to the parties, and before that they can change it as many times as they want. Refer, Star Drugs & Research Labs Ltd v Asst CIT, 42 DTR (Chennai)(TM) (Trib) 343.   Tribunal has no power to adjudicate upon subsequent application filed u/s 254(2).  Refer, Shri Padam Prakash (HUF) v ITO, 9 Taxmann.com 178 - Delhi ITAT
15	Verification	Tribunal can examine on its own any aspect of the subject matter of appeal, whether the same has been examined by the authorities below or not. In the appeal contesting the taxability of the assessee , a UK based firm in India it is open to the Tribunal to consider the issue of admissibility of benefits of Indo –UK treaty to the assessee though not raised earlier. Refer, Linklaters LLP v ITO, 132 TTJ (Mumbai) 20..
16	Case laws not applicable	Tribunal mechanically following decision of High Court which was not applicable to the facts, the court held that the order of Tribunal not valid and matter remanded to the Tribunal. Refer, CIT v Damodar Mangalji Mining Co, 326 ITR 437.   Law of jurisdictional High Court is not binding  if there is a later contrary judgement of non-jurisdictional High Court. Refer, Parakash Vasantbhi Golwala v. ACIT
17	Rectification application	Second rectification application by either party is maintanable only on issues not deceded by tribunal in any other rectification application filed by either of parties. Refer, CIT v Aiswarya Trading Co,  192 taxmann 385. Direction given to the Assessing Officer to assess the Capital Gain on transfer of trademark in question as short term capital gain if the same was registered with in six months being an unworkable direction in as much as the cost thereof has nowhere been determined nor it is determinable, an error has crept in the order of the Tribunal and consequently the said direction is expunged. Refer, Trent Brands vs. ITO, 133 TTJ 70 (Del.)(UO). Once the power for rectification of the earlier order is invoked / exercised and an order is passed, such  order merges with the earlier order of the Tribunal and another application for rectification under section  254 (2) can not be entertained. Refer, CIT vs. Panchu Arunachalam, 235 CTR 308. Under Rectification proceddings, Tribunals is not empowered to review its order passed earlier. Refer, Saptagiri Finance & Investments v ITO, 9 Taxmann.com 71  On the facts of the case, the High Court had reversed the order passed by the Tribunal holding that since   the assessee had paid arm’s length remuneration for services of its Indian agent, no further profits could    be attributed to foreign enterprises in India under Article 7(1) of DTAA.    In such cases the application filed by the revenue under section 254 read with section 9 & 90 of the    Income-tax Act, 1961 Article 7 of DTAA between India and Singapore was rendered infructuous as the  impugned order of Tribunal had already merged with the order passed by High Court & Tribunal had no    jurisdiction to modify its earlier order. The revenue’s application was therefore dismissed. Refer, Dy. Director of IT vs. SET Satellite (Singapore) Pte Ltd, 43 SOT 1 (Mum.)(URO)  Any application for rectification of Tribunals order under section 254-2 can be accepted only if order contains mistakes which are apparent from record. Refer, United Liner Agencies v DCIT, 9 Taxmann.com 10 Tribunal, after considering the entire material on record, arguments advanced and case law cited, having consciously reached a conclusion, order of Tribunal cannot be said to suffer from mistake apparent form record even though subsequently on similar facts, Tribunal reached a contrary conclusion. Refer, Pravan Air Products (P) Ltd v. Jt. After disposal  of appeal of assessee, an application cannot be filed by his Advocate/Chartered Accountant/Authorised Representative in his individual capacity seeking rectification in proceedings of hearing, without consent of assessee. Refer, Omkar Nagreeya Sahkari bank Ltd. v. Dy. CIT , 91 DTR 273 (Luck.)(Trib.) The appeal was decided on the basis of the DTAA between India & Korea. The Tribunal held that  there is no mistake apparent from record in the order of the Tribunal is not following the decision of  jurisdictional High Court. Therefore, the rectification application filed by the assessee was dismissed. Refer, Samsung Heavy Industries Co. Ltd. v. Addl.DIT(IT), 156 TTJ 791. Where there is a difference of opinion between the Members of a Bench of the Tribunal and the  opinion of one of the Members finds support of the Third Member, the decision of the Tribunal is not  to be treated as the opinion of a three-Member Bench, for denying an opportunity of rectification  under section 254(2).Only question of law decided by third member. While giving effect the division  bench has not decided the issue on merit. Matter remanded to tribunal to decide on merits. Conscious omission to consider the issue of genuineness of gifts on the merits, which was not referred for his opinion was not a mistake apparent on record. Refer, Renu Aggarwal (Smt.) .v. ITO, 358 ITR 483
18	SC decision	Decision of the Supreme Court or the Jurisdictional High Court is binding on the Tribunal, and therefore, constitute an apparent error in the order, which is contrary to the principle laid down in the subsequent   decision. Accordingly ,the subsequent law laid down by the Supreme court or the jurisdictional High Court has to be considered for rectifying the mistake under section 254 (2) of the Income Tax Act 1961. Refer, V.R.Chittanandam v Asst CIT, 5 ITR (Trib) 258.
19	Different years.	Tribunal cannot give finding that in  respect of assessment of an year which is not subject matter of appeal before it.  Marubeni India (P) Limited v CIT, 7 taxmann.com 56
20	Additional evidence	There is no need to make a formal application under rule 29 of the ITAT Rules for admission of the additional evidence. There is no error in the order of Accountant member admitting the additional evidence and sending it to the CIT for examination and decision. Refer,  Mascon Global Ltd. vs. ACIT, 133 TTJ 257 Assessee neither raised the issue qua goods lying in bonded warehouses before the AO, CIT (A) or  in remand proceedings despite several opportunities being afforded to it. Accordingly the additional  evidence which was filed before the Tribunal was rejected. Refer, Raj Petro Specialities (P) Ltd. v. ACIT, 157 TTJ 349. The Tribunal had considered the additional ground considered by the assessee before the CIT (A) and  the Tribunal also came to the conclusion that there was no infirmity in the order passed by the CIT  (A). Therefore, the assessee's contention was not correct. Under these circumstances, pointing out  non-consideration of additional ground in the miscellaneous application filed by the assessee, does not  amount to mistake apparent from record. Refer, Cellular Mobile Telecom Services v. ITO, 25 ITR 67 (Chennai) (Trib.) The Tribunal held that the evidence is material in deciding the grounds raised in the appeal, hence the additional evidence adduced by the assessee is admitted. For deciding other grounds on the basis of  additional evidence the matter is sent back to Assessing Officer to decide in accordance with law. Refer, The Rohtak Co-operative Milk Producer Union Ltd. v. ACIT, 155 TTJ 684
21	Pauper provisions	Benefit of “pauper provisions” under 33 of CPC is confined to the underprivileged class of public which does not have means to pay the costs of litigation. Assessee a lawyer, who is practicing before High  Court, Debt recovery Tribunal and lower Courts and does not fit in the criterion of an indigent person in Expl. 1 to Rule 1 of order 33 and therefore, she is not entitled to protection of order 33. Appeals are  dismissed for want of payment of appeal fees. Refer, Yashshree Yogesh Naik vs. Dy. CIT, 133 TTJ 534 (Mum.)(Trib.)
22	Rejection/ Acceptance of appeal	In the absence of any specific provision empowering the Tribunal to hear appeal against fixation of audit  fees payable to special auditors appointed under section 142(2A), appeal filed by the assessee against the  order under section 142(2D), is not maintainable. Refer, Sony Mony Electronics Ltd. vs. Dy. CIT, 45 DTR 431 (Mum.)(Trib.) In view of Instruction No. 3, dated 9-2-2011, where tax effect involved in revenue’s appeal was less than Rs. 3 lakhs, same was to be dismissed being non-maintainable. Refer, I.J. Tools & Castings (P.) Ltd. v. ACIT, 139 ITD 414. ailure to comply with the criterion necessary to represent the matter before the Tribunal, in  time, renders appeal liable for dismissal. Refer, Paresh S. Shah v. ITO.
23	Ex-parte order	It is fundamental principle that no party appearing before the Tribunal should suffer on account of any  mistake committed by the Tribunal and no prejudice should be caused to either of the parties before the  Tribunal which is attributable to the Tribunal’s mistake, omission or commission. Thus, Tribunal entitled  to recall order in entirety to rectify apparent mistake. Followed Supreme Court Judgement Honda Siel  Power Products 295 ITR 466 and Saurashtra Kutch Stock Exchange 262 ITR 146. Refer, Lachman Dass Bhatia Hingwala vs. ACIT (Delhi High Court – Full Bench) Where the Tribunal rejected the application of the petitioner under Rule 24 for recalling ex-parte order on irrelevant grounds and the petitioner had explained reason for non appearance on the date of hearing of  appeal, the order passed by Tribunal rejecting the petitioner’s application under Rule 24 was liable to be  set aside. Refer, Devendra G. Pasale vs. ACIT, 47 DTR 297  Tribunal has no power to dismiss appeal for non-appearance of appellant. It has to deal with the merits. An  application for recall of an ex-parte dismissal order is under s. 254(2) & must be filed within 4 years from the date of the order. The Tribunal must permit “mentioning” of matters. Refer, Bharat Petroleum Corporation Ltd v. ITAT,
24	Appeal Fees.	Order passed under section 143(1), assessed income is Rs. 13,06,780/-. Appeal filed against order under  section 154. Total income determined at more than Rs. 2 lakhs fee payable shall be one percent of  assessed income subject to a maximum of Rs. 10,000/-. The Tribunal held that fee rate dependent on total  income determined. Refer, M. M. Bagwan and Brothers vs. ACIT, 7 ITR 298 (Trib.)(Bang.).
25	Others	A mistake by definition is one which would render any other view as anomalous irrational or illogical for purpose of section 254(2). Refer, Vodafone Essar Cellular Limited v ACIT, 8 Taxmann.com 281