Deputy Commissioner of Income Tax Circle 2(1), Jabalpur V. Shri Dipankar Banerjee, Jabalpur

MA 11/JAB/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4100 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 18-06-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Audit objection; Tax effect; Right to appeal; Tax effect
• Section: 147; 143(3); 268A; 254(2); 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR (through web-based video conferencing platform) BEFORE SHRI SANJAY ARORA, HON‘BLE ACCOUNTANT MEMBER & SHRI MANOMOHAN DAS, HON'BLE JUDICIAL MEMBER M.A. Nos. 11 & 12/JAB/2020 (arising out of ITA Nos. 70 & 71/JAB/2019) (Asst. Years : 2008-09 & 2009-10) Assessee by : Shri Manoj Jain, CA Department by : Shri S.K. Halder, Sr. DR Date of hearing : 11/03/2022 Date of pronouncement : 31/05/2022 O R D E R Per Bench: This is a set of two Miscellaneous Applications (MAs) by the Revenue directed against the common order under section 254(1) of the Income Tax Act, 1961 ( ̳the Act‘, hereinafter) dated 11/12/2019 in respect of the assessee‘s assessments u/s. 147 read with section 143(3) of the Act dated 21/03/2016 for Assessment Years (AYs.) 2008-09 & 2009-10. 2.1 The Tribunal, vide the impugned order, dismissed the Revenue‘s captioned appeals, filed on 21/8/2019, as not maintainable u/s. 268A of the Act inasmuch as the tax effect is below Rs. 50 lakhs each, i.e., the threshold monetary limit as specified per the extant Board Instruction issued u/s. 268A(1) of the Act, which it Dy. Commissioner of Income Tax, Circle 2(1), Jabalpur. vs. Dipankar Banerjee, Deshbandhu Complex, Napier Town, Jabalpur (Applicant) [PAN: ADDPB 3227E] (Respondent) MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 2 | P a g e does from time to time for the purpose of regulating the filing of appeals, applications for references, etc. by the Revenue, regard of which is to be had by the Court or the Tribunal hearing the said appeal or reference. 2.2 The relevant part of the Tribunal‘s order reads as under:- ―2. Admittedly, the tax effect in both the Departmental appeals is below Rs. 50 lakhs. Vide Circular No. 17/2019 dated 08/08/2019, issued u/s. 268A of the Act, it has been directed by CBDT that in case the tax effect does not exceed Rs. 50 lakhs, the appeal before the Tribunal may not be pressed/withdrawn. Since in both the Departmental appeals the tax effect is below Rs.50 lakhs therefore, both the appeals of the Revenue are not maintainable and are liable to be dismissed. 3. Learned D.R., however, contended that in these cases audit objection was accepted. However, the orders of the AO u/s. 147/148 do not contain any such mention. Therefore, nothing is borne out from the record so as to prove the contention raised by learned D.R. The Departmental appeals shall have to be decided on the basis of material available on record. In view of the above, it is clear that both the Department appeals are filed in violation of Board‘s circular therefore, both the appeals are not maintainable and are dismissed as such. 4. Learned counsel for the assessee seeks permission to withdraw both the cross objections. Accordingly, the Cross Objections of the assessee are dismissed as withdrawn.‖ 2.3 The Revenue‘s case is that its‘ appeals under reference have been wrongly dismissed, as the same, even as clarified per the Authorization Memo accompanying the Memorandum of Appeal (in Form 36), is covered by the exception specified at para 10(c) of the Board Instruction (BI) 03/2018, dated 11/07/2018. Section 268A, inserted on the statute book by Finance Act, 2008 w.r.e.f. 01/4/1999, empowers the Central Board of Direct Taxes (CBDT/Board) to issue circulars, instructions, orders, directions, etc. from time to time fixing monetary limits for the purpose of regulating the filing of appeals and applications for references by the Revenue before the higher forums, being the Appellate Tribunal, the Hon'ble High Court, and the Hon'ble Supreme Court (sec. 268A(1)), and which are to, while considering those appeals, references, etc., have regard to those Circulars/Instructions, etc. (s.268A(4)). Instruction 03/2018 is one such Instruction issued u/s. 268A(1), and applicable to appeals pending MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 3 | P a g e disposal (as on 11/07/2018) as well. Paras 10 & 11 thereof provide exceptions to the said general prescription, so that an appeal/reference, otherwise covered, would be excluded in case it falls under any of the situations specified therein. Para 10(c) thereof reads as under: ̳10. Adverse judgment relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above, or there is no tax effect: (a) – (b) ................................, or (c) where a Revenue Audit objection in the case has been accepted by the Department, or (d).................................‘ This was followed by Instruction 17/2019, dated 08/08/2019, enhancing the monetary limits specified in the former (i.e., from Rs. 20 lacs to Rs.50 lacs for appeals before the Tribunal), for the maintainability of the Revenue‘s appeals or references before different appellate forums. BI 03/2018 is thus the principal Instruction in force, and is to be read along with BI 17/2019 for the purpose of considering the applicability or otherwise of sec. 268A to the instant appeals by the Revenue. 3. Before us, while the Revenue relies on the decision by the Tribunal in Anurag Srivastava & Ors. (MA Nos. 03-07/Jab/2020, dated 07/9/2020), the assessee does on the decisions by the Hon'ble jurisdictional High Court in ITO v. K.D. Wires (P.) Ltd. [2010] 323 ITR 257 (MP) and Dr. Hukumchand Marothi v. CIT [2002] 254 ITR 60 (MP), besides the decision by the Apex Court in CIT vs. Reliance Telecom Ltd. [2022] 440 ITR 1 (SC). 4. We have heard the parties, and perused the material on record. 4.1 The Revenue per its‘ instant petitions agitates the impugned order (IO) on the ground that its‘ appeals are saved by Clause 10(c) of the Board Instruction 03/2018, dated 11/07/2018, which excludes the Revenue‘s appeals filed on acceptance of the Revenue Audit Objection/s (RAO/s), i.e., despite low tax effect. MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 4 | P a g e This fact, it is asseverated, stands duly mentioned in the Authorization issued u/.s 253(2) forming part of the Appeal papers filed with the Tribunal, which it failed to take notice while hearing it‘s appeal. The dismissal of its‘ appeals, in disregard thereof, is thus a mistake apparent from record, which are prayed for being restored for being heard on merits. The plea to this effect, also taken by the Revenue at the time of hearing of its‘ instant appeals, did not find acceptance by the Tribunal as there was, in it‘s view, nothing borne out of record to prove or exhibit the contention raised, so that the Revenue‘s appeals were to be necessarily decided on the basis of the material on record. 4.2 At this stage, we may advert to s. 268A, which reads as under: ̳268A. (1) The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income-tax authority under the provisions of this Chapter. (2) Where, in pursuance of the orders, instructions or directions issued under sub-section (1), an income-tax authority has not filed any appeal or application for reference on any issue in the case of an assessee for any assessment year, it shall not preclude such authority from filing an appeal or application for reference on the same issue in the case of— (a) the same assessee for any other assessment year; or (b) any other assessee for the same or any other assessment year. (3) Notwithstanding that no appeal or application for reference has been filed by an income-tax authority pursuant to the orders or instructions or directions issued under sub-section (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the income-tax authority has acquiesced in the decision on the disputed issue by not filing an appeal or application for reference in any case. (4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case. (5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly.‘ MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 5 | P a g e The law, therefore, obliges the appellate forum, as the Tribunal, hearing the Revenue‘s appeal under the Act to have regard of the Boards‘ Instructions, etc. issued u/s. 268A(1) as well as of the circumstance/s under which the same has been filed or, as the case may be, not filed in respect of any case. 4.3 A perusal of the appellate record shows that para 2 of that the Authorization Memo (AM) dated 19/08/2019 u/s. 253(2) accompanying the memorandum of appeal (MoA) for both the years, identically worded, also read out during hearing, reads as under: ―2. Under section 253(2) of the Act, I, therefore, direct the Dy. Commissioner of Income Tax, Circle 2(1), Jabalpur to file an appeal before the Appellate Tribunal against the order of the above authority because the issue of deletion under appeal falls under exceptional of para 10 (c) of Board Instruction No. 03/2018, dated 11/07/2018 even though the tax effect being below the monetary limit, further appeal is being filed for A.Y. 2008-09 (2009-10) on ground of appeal enclosed.‖ There is, thus, clearly an omission on the part of the Tribunal in perusing it‘s record (for both the years under reference) in noticing and, consequently, giving regard to the same, clarifying the basis of filing the instant appeals, and brought forth by the Revenue in the statutory order u/s. 253(2) forming part of the appeal. This is all the more so as the ld. DR had raised this issue before the Bench hearing the appeals, which has clearly proceeded oblivious of the same. No satisfactory answer thereto was furnished on this being conveyed by the Bench during hearing to Shri Jain, the ld. counsel for the assessee, choosing to rely on the decisions cited, which surely would be taken due note of, i.e., insofar as the statement or the proposition of law enunciated or clarified therein is concerned, even as the ̳mistake‘ being pointed out by the Revenue; there being no ambiguity as to law, is essentially a matter of fact. 4.4 An identical matter was also heard on 11/3/2022 (i.e., Asst. CIT v. Gopal Paliwal, in MA Nos. 13 & 14/Jab/2020), wherein, Sh. Purohit, the ld. Sr. Counsel for the assessee, on a similar question being asked by the Bench, raised a two- fold objection, which we shall discuss as these matters, as also others, came up MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 6 | P a g e together for hearing, with the ld. Counsels‘ adopting the arguments advanced in one, in another, stating so in as many words. The objections are: (i) that inasmuch as copy of these documents was not supplied by the Revenue to the assessee, the same cannot form part of the Tribunal‘s record and, therefore, no cognizance of the same could be taken by the Tribunal while considering the instant petitions; the scope of section 254(2) being limited to a mistake apparent from record. It would be a different matter, he would add, if the fact of the appeals being filed on acceptance of the RAO was stated in the Grounds of Appeal, forming part of the Memorandum of Appeal (MoA) itself. (ii) the second objection raised by him was with reference to the decision in CIT vs. Reliance Telecom Ltd. (in Civil Appeal Nos. 7110 & 7111/2021, dated 03/12/2021), reading paras 3.2, 6 & 7 thereof. On that basis, it was submitted that it was not open for the Tribunal, in rectification proceedings, to recall its‘ earlier order, and that a finding, right or wrong, cannot be reviewed; the Tribunal having no power to review it‘s order. The same was thoroughly discountenanced by the Tribunal, examining the matter from several angles, per it‘s order pronounced on 27/5/2022. The first limb of the argument was found specious, and the latter, misplaced. How could, it wondered, the Authorization Memo (AM) u/s. 253(2), forming part of the appeal papers, not form part of the record of the Tribunal? Rather, inasmuch as the mention of the exceptional clause in the Grounds of Appeal, also forming part of the Appeal, would admittedly make it a part of the Tribunal‘s record, the argument was self- contradictory. There was in fact no whisper to that effect in the impugned order, i.e., that the Tribunal did not consider the said statutory document, as it did not, in it‘s view, form part of it‘s record, so that it was presumptuous. Rather, the very fact that it states that it did not find anything on record to prove the Revenue‘s contention, only implies an ignorance or an omission to notice the same, as otherwise it was obliged to explain as to why, despite noticing the same and required to give regard thereto, it does not consider it proper to, or is constrained not to, do so, only which would qualify it‘s order as a speaking order, an essential attribute of a judicial order. A deliberate non-consideration or non-explanation, MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 7 | P a g e also could not be attributed to the Tribunal, as that would imply it acting in a partisan manner. There was under the circumstances no reason to disbelieve the contents of the statutory order u/s. 253(2) on it‘s record by the Tribunal – which could even otherwise be verified, to which rather the statutory presumption of regularity attaches u/s. 114(e) of the Evidence Act. To it, it was quite plainly a simple, albeit clear case of omission and, consequently, of a serious prejudice having been caused to the Revenue in denying it it‘s right to appeal, duly exercised. And, therefore, the impugned order was liable to be recalled for being heard and decided on merits, placing reliance on the decision in Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466 (SC) in support. This was in addition to the mistake by way of a clear breach of s. 268A(4). The decision in Reliance Telecom Ltd. (supra), also relied upon in that case, was found wholly inapplicable in the facts of the case, with the Tribunal, rather, finding the said reliance itself as ̳mistaken‘. The final findings, summarized at para 4 of the said order, are reproduced for ready reference: ―4. The only issue that arises in the given admitted set of facts and circumstances of the case, is as to whether the Tribunal holding, per the impugned order, that there is nothing on record to prove the Revenue‘s contention, is correct or not. A perusal of the appeal folder/s reveals a clear mention of the exceptional clause under which the instant appeal/s stands preferred, filed along with the appeal papers, as indeed the communications between the ld. Departmental Representative and the field officer confirming this position, again duly furnished to the Tribunal prior to the date of hearing of the appeal/s. There being no reference to these documents, admittedly relevant, in the impugned order, reproduced in it‘s operative part hereinbefore, there has clearly been an omission on the part of the Tribunal in not noticing the same, much less have regard thereto, incumbent on it under law. The assessee‘s principal objection concerns the disregarding of the same by the Tribunal inasmuch as the same, having not been supplied to the assessee, could not form part of it‘s record. We, for the several reasons afore-stated, find the said argument misconceived. The argument presumes the non-consideration of the said material by the MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 8 | P a g e Tribunal in the first instance for this reason, even as there is no whisper of the same in it‘s order. That is, is wholly presumptuous. It further presumes that the Tribunal, though conscious of the said material, yet chose not to direct either the Revenue or it‘s Registry to supply a copy thereof to the assessee, as in that case, forming part of it‘s record, it would be obliged to take cognizance thereof. That is, acts in a partisan manner. Rather, where so, i.e., the material was not admitted by the Tribunal on this ground, the same ought to form part of it‘s order, which only would qualify the same as a judicial order inasmuch as the same has to be, by definition, a speaking order. On merits, to even suggest that the AM u/s. 253(2), which forms part of the appeal papers, is not a part of the Tribunal’s record, is, to our mind, perverse. There is no requirement in law for the Revenue to have filed the same with the assessee – who could though seek a copy of the same, nor any prescribed manner for communicating the same. Rather, inasmuch as the same concerns the legal competence for filing an appeal, mention thereof in and as part of the authorization memo u/s. 253(2), authorising the filing of an appeal with the Tribunal, which forms part of the appeal memo and, thus, part of the Tribunal‘s record, it‘s mention therein is most appropriate. As further observed, it may be that the circumstance requiring the statement of the criteria leading to the filing of an appeal may arise subsequent to the filing of the appeal, so that even non-mention thereof may not, by itself, be conclusive of the matter. Section 114(e) of the Indian Evidence Act specifically attributes a presumption of regularity and proper performance to all official and judicial acts, so that the same, unless rebutted with materials, shall hold. Ignoring the attendant circumstance, besides being in clear violation of the clear mandate of law (s. 268A(4)), itself constituting a mistake, liable for rectification, which extends to both mistakes of fact and law, could only be at the peril of causing a serious prejudice to the appellant, negating it‘s right of appeal. It is trite law that no Court or Tribunal could by it‘s action or, as the case may be, non-action, cause prejudice to any of the party before it, which, where so, is to be regarded as mistaken, liable for rectification u/s. 254(2), even as explained by the Apex Court in Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466 (SC). For us, it is therefore no more than a simple case (of) a bona fide omission by the Tribunal in, while adjudicating the matter, failing to take note of the compelling documents on it‘s record in support of the contention of the ld. DR – MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 9 | P a g e nothing more, and nothing less, and which therefore warrants being addressed by taking due notice of the said documents, all forming part of the appeal papers themselves (inasmuch as the communication between the Departmental officers is only toward and in substantiation of the eligibility note at para 2 of the AM, which is to accompany an appeal by the Revenue. The argument advanced – which has been considered in all it‘s different facets, serving, to our mind, only to obfuscate the issue. The second argument, i.e., of an order, though mistaken, yet cannot be recalled inasmuch as scope of the instant proceedings is limited to making amendments in respect of mistake/s apparent from record, the same glosses over the fact that the impugned order is not an order on merits, but an in limine dismissal of the appeal/s under reference for want of competence on technical, albeit mandatory, grounds. That a judgment is to be read as a whole, and it is the principle of law enunciated, it‘s ratio decidendi, that is binding, is trite law. The said argument is wholly misplaced and, if anything, itself mistaken. Before parting with this order, we cannot help observing the assessee‘s conduct in the matter. The Bench had in the instant proceedings on an earlier occasion, in response to Sh. Purohit‘s contention as to the assessee having not been supplied a copy of authorization memo by the Revenue, directed for the same to be provided to the assessee inasmuch as the same were relevant toward the maintainability of the Revenue‘s appeal u/s. 268A, as well as copy of the Revenue‘s Audit Objection, also called for by the Bench during hearing. Further instructions were also passed for the assessee to make arrangements for collecting copy thereof from the Registry. This is borne out by order-sheet entries dated 11/9/2020, 18/9/2020 and 25/9/2020. The assessee, however, did not take the copy thereof. As it transpires, this was as that would defeat the assessee‘s case. We have, however, at our end, confirmed that the Revenue Audit Objections are in respect of the grounds assumed by the Revenue per it‘s instant appeals, validating it‘s assertions, which we have done for our satisfaction, as indeed in discharge of the obligation cast on the Tribunal u/s. 268A(4). We, in view of the foregoing, reject the assessee‘s contentions, and admit and decide the instant MAs by it in favour of the Revenue inasmuch as its‘ instant appeals were wrongly dismissed u/s. 268A(1) r/w s. 268A(4) of the Act. The same are, MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 10 | P a g e therefore, recalled for a decision on merits. The Registry is directed to fix the appeals for hearing in the normal course. We decide accordingly.‖ 4.5 We may next consider the ̳reliance‘ on the decisions in K.D. Wires (P.) Ltd. (supra) and Dr. Hukumchand Marothi (supra). Though the same were neither read out (in whole or in part), or even otherwise their contents explained during hearing and, therefore, cannot be said to be relied upon, nor, consequently, responded to by the other side, inasmuch as the same are by the Hon‘ble jurisdictional High Court, it becomes incumbent on us to consider the same. The latter decision bears reference to the former, as also the decision in CIT v. Honda Siel Power Products Ltd. [2006] 293 ITR 132 (Del). The argument, also advanced in Gopa Paliwal (supra) with reference to the decision in Reliance Telecom Ltd. (supra), also relied upon in the instant case, stands decided thus: ―3.4 Coming to the second argument, i.e., that the Tribunal cannot, in rectification proceedings, recall it‘s order u/s. 254(2) proceedings. The same is, again, as well as the decision relied upon in support, misplaced. The appeal/s under reference was dismissed by the Tribunal for want of the requisite competence, i.e., on account of low tax-effect, in complete disregard of the express statement in the authorisation memo/s u/s. 253(2) to the effect that despite having a low tax-effect, it was saved under the exceptional clause 10(c) of the BI 03/2018, explaining thus the basis for it‘s filing. The only consequence and, rather, concomitant of the Tribunal, in the rectification proceedings, finding it to have made a mistake in not having regard thereto is to recall the impugned order for deciding the Revenue‘s appeal/s on it‘s merits after allowing reasonable opportunity of hearing to the parties, i.e., to pass an order/s u/s. 254(1). In the facts of Reliance Telecom Ltd. (supra), on the other hand, the Tribunal had passed a detailed order u/s. 254(1), i.e., on an earlier occasion. It was this order which was recalled in the proceedings u/s. 254(2) by delving into the merits of the case and, thus, reviewing it‘s order, impermissible u/s. 254(2). It was under these circumstances that it was explained by the Apex Court that it was improper for the Tribunal to recall it‘s earlier order in rectification proceedings. As explained in CIT v. Sun Engineering Works (P.) Ltd. [1992] 198 ITR 297 (SC), after a review of the precedents in the matter, that it is neither desirable nor permissible to pick out a word or sentence from the judgement of the Supreme Court divorced from the context of the question under consideration and treat it to be the complete law declared by the court. The assessee‘s plea, thus, is without any substance and, accordingly, not accepted.‖ MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 11 | P a g e For the same reasons that inform our decision in Gopal Paliwal (supra), finding the decision in Reliance Telecom Ltd. (supra) as distinguishable, we find the stated reliance as misplaced. Why, the decision in Honda Siel Power Products Ltd. (supra) by the Hon‘ble Delhi High Court, also relied upon in the cited decision/s, stands disapproved by the Hon‘ble Apex Court in the decision reported at 295 ITR 466, referred to and relied upon by the Tribunal in Gopal Paliwal (supra). 4.6 We observe the Authorization Memos dated 16/6/2020, i.e., in respect of the Revenue‘s instant petitions, also placed in the assessee‘s compilation. The import of the same was not explained to us during hearing. The same, to our mind, are of no moment inasmuch as the legal competence under consideration is of the Revenues‘ appeals, dismissed in limine by the Tribunal per the impugned order, so that it is the authorization u/s. 253(2) in respect of these appeals, held incompetent by the Tribunal, that is relevant and material. 4.7 The Revenue has also placed the audit objections for both the consecutive years under reference, i.e., 04/11/2011 (for AY 2008-09) and 01/8/212 (for AY 2009-10), on record vide it‘s letter dated 02/12/2021. The assessee‘s non- response thereto is in itself telling and eloquent. We have in any case, as incumbent on us, perused them to confirm the veracity of the Revenue‘s claim as to the impugned assessments and, consequently, the appeals under reference being consequent to acceptance of the revenue audit objections. 5.1 For the reasons afore-stated, we find the in limine dismissal of the Revenue‘s appeals under reference by the Tribunal u/s. 268A vide the impugned order as in breach of said provision. The same, admitting and accepting the Revenue‘s instant MAs, are accordingly recalled for being heard and decided on merits. MA Nos. 11 & 12/JAB/2020 (AYs. 2008-09 & 2009-10) Dy. CIT v. Dr. Dipankar Banerjee 12 | P a g e 5.2 The Tribunal had, vide the impugned order, accepting his prayer for withdrawal, also dismissed the assessee‘s COs, one for each year under appeal. Though the said order does not state of the same being supportive (of the order by the first appellate authority, appealed against by the Tribunal), and even as no plea in this regard was taken before us, we find the same to be so (supportive) and, accordingly, also recall the same inasmuch the same as disposal thereof could only be pursuant to an order on merits. Though, vide the said COs, the assessee also raises the issue of maintainability of the Revenue‘s appeals u/s. 268A, i.e., the subject matter of the instant applications. The same being decided by us herein, does not survive for consideration. The asssesse‘s COs (14 & 15/Jab/2019) are accordingly also recalled for a decision on merits of the other issues raised therein. 5.3 We decide accordingly. 6. In the result, Revenue‘s instant Miscellaneous Applications are allowed. Order Pronounced in open Court on this 31 st day of May, 2022 sd/- sd/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Dated: Ma y 31, 20 22 vr/- Copy to: 1. The Applicant: De puty C IT, Circle 2(1), Jabalpur 2. The Respondent: Dr. Dipankar Banerjee, Deshbandhu Complex, Napier Town, Jabalpur 482 001 3. The Principal CI T-2, Jabalpur (MP) 4. The CI T( Appeals)-1, Jabalpur (MP) 5. The Sr . DR , Jabalpur. 6. Guard File. By order (VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Jabalpur.