Income Tax Officer, Ward-2(2), , Vijayawada V. Ivaturi Mahalakshmi, Vijayawada

MA 1/VIZ/2021

AI Insights

This case involves a Miscellaneous Application filed by the revenue against the order of the Income Tax Appellate Tribunal (ITAT) in M.A.No.24/Viz/2019, which had dismissed a previous appeal by the revenue due to the tax effect being below Rs.20 lakhs, as per Circular No.3/2018. The revenue contended that the Tribunal had not considered Exception No.10(c) of the circular, which was submitted in the form of a statement of facts. However, the Tribunal found the subsequent application by the revenue to be not maintainable, citing precedents from the Hon'ble Orissa High Court and the Hon'ble Madras High Court, which held that once a rectification under Section 254(2) is granted, no further applications for rectification are permissible.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135867 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-12-2022
• Assessment Year: 2005-2006
• Appeal Filed On: 14-02-2021
• Other Referred Cases: CIT Vs. ITAT (196 ITR 838), Dr.S.Panneerselvam Vs. ACIT & others in W.P.Nos. 18693 and 18694 of 2006
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

आयकरअपीलीयअधिकरण, धिशाखापटणम पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री द ु व्वूरु आर एल रेड्डी, न्याधयक सदस्य एिं श्री एस बालाकृ ष्णन, लेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER Miscellaneous Application No.01/Viz/2021 Arising out of I.T.A.No.508/Viz/2018 & M.A.No.24/Viz/2019) (ननधधारण वर्ा / Assessment Year : 2005-06 Income Tax Officer Ward-2(1) Vijayawada Vs. Sri Ivaturi Mallikharjuna Rao Legal Representative and son of late Smt.Ivaturi Mahalakshmamma D.No.38-5-1, 1 st Lane Punnamathota Opp.AIR cross roads Vijayawada अपीलधथी की ओर से/ Appellant by : Shri C.Subrahmanyam, AR प्रत्यधथी की ओर से / Respondent by : Shri O.N.Hari Prasada Rao, DR सुनवधई की तधरीख / Date of Hearing : 23.12.2022 घोर्णध की तधरीख/Date of Pronouncement : 19.01.2023 O R D E R Per Shri S.Balakrishnan, Accountant Member : This miscellaneous application is filed by the revenue against the order of the Tribunal in M.A.No.24/Viz/2019 dated 06.03.2020, arising out of I.T.A.No.508/Viz/2017 dated 25.01.2019 for the Assessment Year (A.Y.)2005-06. It is apparent from records that as per the directions of the PCIT, Vijayawada, the present miscellaneous application is filed by the revenue on the order of ITAT in M.A.24/Viz/2019 dated 06.03.2020, 2 MA No.01/Viz/2021, A.Y.2005-06 Sri Ivaturi Mallikarjuna Rao, L/R of Smt. Ivaturi Mahalakshmamma, Vijayawada submitting that the Tribunal dismissed the M.A.24/Viz/2019, taking into consideration the Circular No.3/2018 dated 11.07.2018 and arrived at a decision that the appeal of the revenue is not maintainable in view of the involvement of tax effect below Rs.20 lakhs, but the exception No.10(c) contained in the circular was not considered though it was submitted before the Tribunal in the form of statement of facts which formed part of appeal petition. 2. However, it is observed that the revenue has filed this Miscellaneous Application against the order of the Tribunal in MA No.24/Viz/2019 dated 06.03.2020 arising out of ITA No.508/Viz/2017 dated 25.01.2019 is not maintainable, in view of the decision of the Hon’ble Orissa High Court in the case of CIT Vs. ITAT (196 ITR 838) which reads as under : “Section 254(2) of the Income Tax Act, 1961 empowers the Tribunal to amend any order passed by it under sub-section (1) with a view to rectify any mistake apparent from the record at any time within four years from the date of the order. Therefore, to attract the applicability of section 254(2), the mistake which is sought to be rectified must be apparent from the record and the same must be in any order passed under sub-section (1) of section 254. An order rejecting an application for rectification under section 254(2) is not an order passed under section 254(1) and it cannot be rectified under section 254(2).” Hon’ble Madras High Court in the case of Dr.S.Panneerselvam Vs. ACIT & others in W.P.Nos. 18693 and 18694 of 2006 has also taken the 3 MA No.01/Viz/2021, A.Y.2005-06 Sri Ivaturi Mallikarjuna Rao, L/R of Smt. Ivaturi Mahalakshmamma, Vijayawada same view while considering the Hon’ble Orissa High Court’s decision as under : “...........In the present case, the rectification was ordered in terms of Section 254(2) and it got merged with the original order passed under Section 254(1). What has been refused by the Tribunal while allowing the application under section 254(2) should be read as having been rejected. Therefore, the petitioner cannot file another application to grant further benefits. Successive application for rectification of the original order cannot be maintained as it will defeat the object of Section 254(2) of the Act. Section 254(2) of the Income Tax Act, 1961, provides for rectification of any mistake apparent from the order passed by it under Section 254(1) of the Act. Once this has been done, no further application is maintainable. The remedy by way of appeal is the only course open.” 4. Hence, respectfully following the above decisions of the Hon’ble High Courts supra, the M.A filed against M.A. by the Revenue is not maintainable, hence, dismissed as not maintainable. 5. In the result, Miscellaneous Application filed by the revenue is dismissed. Order pronounced in the open court on 19 th January, 2023. Sd/- Sd/- (द ु व्वूरु आर.एल रेड्डी) (एस बालाकृ ष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याधयकसदस्य/JUDICIAL MEMBER लेखा सदस्य/ACCOUNTANT MEMBER Dated : 19.01.2023 L.Rama, SPS 4 MA No.01/Viz/2021, A.Y.2005-06 Sri Ivaturi Mallikarjuna Rao, L/R of Smt. Ivaturi Mahalakshmamma, Vijayawada आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. रधजस्व/The Revenue –The Income Tax Officer, Ward-2(1), Vijayawada 2. ननधधाऩरती/ The Assessee–Sri Ivaturi Mallikharjuna Rao, Legal Representative and son of late Smt.Ivaturi Mahalakshmamma, D.No.38-5-1, 1 st Lane, Punnamathota, Opp.AIR cross roads, Vijayawada 3. प्रधान आयकर आयुक्त /The Principal Commissioner of Income Tax, Vijayawada 4. नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम/ DR,ITAT, Visakhapatnam 5.गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam