S.K. CHANDER, A.M. This miscellaneous petition by assessee under s. 254(2) of ITA, 1961 is filed with regard to order of Tribunal bearing ITA Nos. 553 to 5535/Del/84 relating to asst. yrs. 1980-81 to 1982-83 dt. 24th April, 1986. In miscellaneous application, it has been projected that during course of hearing, applicant company had stated, inter alia as under: (i) That appeal before Appellate Commissioner was withdrawn on 28th Sept., 1984 on basis of decision of Special Bench of ITAT in case of M/s Bajaj Auto Ltd. reported in ITO vs. Bajaj Auto Ltd. (1984) 40 CTR (Trib) 33 (Bom) (SB): (1984) 19 TTJ (Bom) 198 (SB): (1984) 8 ITD 296 (Bom) (SB). (ii) That order in impugned appeal was passed by Commissioner of appeals on same day i.e. 28th Sept., 1984. (iii) That immediately thereafter i.e., on 3rd Oct., 1984 in Part 4 of 149 ITR at p92 of Statute section it was reported that Supreme Court had dismissed Special Leave Petitions by Department against orders at 20th July, 1981 of Bombay High Court in ITA Nos. 237 and 200 of 1980, respectively, whereby High Court declined to call for reference on question whether, where deferred annuity policies were purchased by employer in favour of employees, and nominee in policies was employer, policies were perquisites in hands of employees, and taxable as such, or whether, as claimed by employees/assessees were only contingent interest. CIT vs. J.G. Patel and CIT vs. M.G. Patel: SLP (Civil) Nos. 10132 of 1981 and 635-637 of 1982. (iv) That appeal had thus been withdrawn before Appellate Commissioner on mistaken impression of law arising mainly out of said order of Special Bench of Tribunal. (v) That dismissal of SLP by Supreme Court as referred to above had effect of reducing importance of said decision of Special Bench of Tribunal as one in which view taken was only one of two equally plausible views. (vi) That interval between date of passing of order by Commissioner (Appeals) and receipt of part 4 of 149 ITR was barely week. (vii) That Supreme Court had ruled in following cases that mistake of Advocate constitutes sufficient cause for undoing error in appeal: Concord of India Insurance Co Ltd. vs. Smt. Nirmala Devi & Ors. (1979) 118 ITR 507 (SC), AIR 1981 SC 1400 AIR 1984 Gau 13" According to assessee Appellate Tribunal has not mentioned any of these facts in order nor has it discussed any of cases relied upon at time of hearing as contained at p.5 of paper book filed in connection with appeal. In this miscellaneous application, there is also reference to judgments mentioned in paras 4 to 12 of this petition. According to assessee, in view of omission of Tribunal, to mention facts of case and failure to dwell on cases cited at bar, order of Tribunal suffers from inherent inadvertence and patent deficiencies as to render it perverse and invalid. Finally, there is prayer, that this order be recalled. revenue, on other hand, has submitted that assessee is seeking review of order of Tribunal by making various submissions which are not relevant or german to issues decided by Tribunal by making various submissions which are not relevant or german to issues decided by Tribunal and this is not permitted under s. 254(2) of Act because under this section only mistake apparent from record can be rectified. ld. Departmental Representative invited our attention particularly to para 8 of order of Tribunal and submitted that in view of what is stated in this para, miscellaneous application is untenable and be rejected. We have given careful consideration to rival submissions. We have also considered contents of miscellaneous applications and we find that miscellaneous application by assessee s without substance and it has to be dismissed as such. This becomes clear from order of Tribunal which is sought to be recalled by this miscellaneous application. Tribunal in para 6 of its order dt, 24th April, 1986 clearly projected as to how assessee did not press ground for assessment years under appeal relating to disallowance of commission. It is clear that before CIT(A) these grounds were not pressed, "in view of decision of SB of ITAT, Bombay of 25the Nov., 1985 in case of ITO vs. Bajaj Auto Ltd. (1984) 40 CTR (Trib) 33 (Bom) (SB): (1984) 19 TTJ (Bom) 198 (SB). Now Tribunal found after hearing appeals that ITO had not only relied upon mere provisions of law to object various reasons on merits for disallowing this claim in each year. Tribunal further found that when matter was agitated in appeal before CIT (A) reason for withdrawal was SB decision of Tribunal in case of Bajaj Auto Ltd. Tribunal therefore, ultimately comprehended that in so far as merits of issue were concerned, which had been discussed in detail by ITO, assessee apparently had no case when concession was made before CIT(A). When matter came up in appeal before Tribunal claim of assessee in ground raised was that matter "be remanded to him, CIT (A) for readjudication in view of decision of Supreme Court in SLP (Civil) Nos. 10132 of 1981 and 633 and 637 of 1982. On this ground, Tribunal heard parties and observed as under: "After careful consideration of rival submissions we find that assessee voluntarily opted to plead before CIT(A) that with regard to disallowance of various amounts of commission relating to assessment years under appeal, no decision be given on merits as assessee was not pressing for same. ld. Commissioner acceded to this request. It is not material as to on what ground such request was made before him. claim made by ld. counsel for assessee that in view of dismissal of special leave petition by Supreme Court in above-mentioned case, assessee's case is revived and needs remand by us learned CIT(A) for its disposal on merits is preposterous. dismissal of special leave petition does not in merits is preposterous. dismissal of special leave petition does not in any way decide issue in favour of assessee by implication or give any vested right of type claimed before us. Be that as it may assessee had voluntarily withdrawn this issue from consideration and determination of learned CIT(A) . This cannot be revived at whim or fancy of assessee because that will tantamount to assessee using appellate proceedings as tool for furtherance of its ends rather than getting determination of issues in accordance with law when raised before appellate authorities. It is for assessee to seek whatever remedy may be available to it under law and in accordance with law but method adopted by assessee in present appeal, in our considered opinion, is not method available for seeking relief sought in these appeals, because ITO had decided issue on various grounds and when assessee went in appeal before ld. CIT(A), it was more than on merits that issue required determination rather than points of law which are now projected before us. We therefore, dismiss appeals of assessee. Appeals dismissed," From above it is clear that Tribunal did not deal with issue on merits but only rejected appeals of assessee because assessee had chosen not to press for these appeals before CIT(A) and Tribunal did not find any justification for remanding matters back to him for readjudication merely because special leave petition in some other case had been dismissed by Supreme Court. On such facts, we do not find any justification to recall order of Tribunal. ld. counsel for assessee has mentioned various authorities for proposition that if counsel errs in law his mistake should not be allowed to effect interest of his client. We do not find any such mistake made by ld. Counsel for assessee nor it is so apparent because it cannot be said that special leave petitions dismissed by Supreme Court in another case has settled law on issue that was in appeal before ld. CIT(A). In fact this position is accepted even in miscellaneous application when it is stated that dismissal of SLP by Supreme Court as referred to above had, "the effect of reducing importance of said decision of "Special Bench of Tribunal." On above facts, we do not find any justification, despite authorities cited, to recall order of Tribunal. Miscellaneous application dismissed. *** AMARNATH KHANDELWAL AGENCIES PVT. LTD. v. INCOME TAX OFFICER