M/s Sainath Enterprises Vs. ACIT (ITAT Mumbai) (Third Member)
This reference under Section 255(4) of the Income Tax Act, 1961, arises the difference which arises in the opinion of two Hon’ble Members with the above appeals.
2. This reference has been put up before me on the questions, which do not arise for determination. It is undisputed that the assessee prayed for withdrawal of the appeal filed by him, which was declined by the learned Accountant Member on the ground that it should be listed together with the appeal filed by the department. I do not find this to be a cogent reason for declining the prayer of the appellant- assessee. It is now well settled that a petitioner / plaintiff is the dominus litis and it is open to him to pursue or abandon his case. Withdrawal cannot be denied except when the person making the prayer has obtained some advantage / benefit, which he seeks to retain. In the present case, I do not find any such situation. The prayer made by the assessee is also not opposed by the Department. In the circumstances, the prayer made by the assessee for withdrawal of appeal is granted and appeal will be dismissed, as withdrawn. The appeal filed by the department is listed immediately for disposal in the regular bench.
Order pronounced in the Open Court.
