Recently, in Jayant D. Sanghavi vs. ITAT & Ors, the division bench of the Bombay High Court rejected a plea that the appeal was mistakenly withdrawn on the advice of Counsel and that the same should be restored should be backed by evidence.
Dismissing the petition, the bench clarified that if the assessee voluntarily withdraws the appeal, he cannot seek restoration on the ground that the withdrawal was an apparent mistake under section 254(1) of the Income Tax Act. The Tribunal dismissed an appeal filed by the petitioner at the specific request of the petitioner himself. After three years, the petitioner, filed an application of the Act seeking for recall of the dismissal order and submitted that the withdrawal was on the advise of his counsel.
The said application was dismissed by the Tribunal. Against the said order, the petitioner filed a rectification application. The Tribunal dismissed the same on ground that there is no error or mistake apparent from the record leading to its order since the appeal was withdrawn on the specific request of the petitioner himself and in which there is no reference to the fact that the appeal is being withdrawn because of the advise of his Advocate.
The bench comprising of Justice M.S Sanklecha and Justice A.K Menon noted that it is the petitioner’s case that he acted on the advise of the Counsel in withdrawing the appeal. “However, this submission of the petitioner is without there being anything on record from the Advocate concerned that he advised the petitioner to withdraw his appeal. Further the communication dated 23rd April, 2010 addressed to the Tribunal for withdrawal of the appeal was by the petitioner himself and in that communication he does not mention that the appeal is being withdrawn on account of legal advise. In fact it is an unconditional withdrawal of the appeal.
Further, there is no explanation also offered for having made a miscellaneous application for recall of the order dated 7th May, 2010 in July, 2013 i.e. after over a period of three years. “Therefore in these facts, particularly in the absence of any evidence to indicate that the petitioner acted on the advise of Advocate to withdraw his appeal it cannot be said there is any error apparent on the record. In the above circumstances, no fault could be found with the order of the Tribunal in rejecting the application by the impugned Order under Section 254(2) of the Income Tax Act.”