DCIT, Corporate Circle-1(1), Bhubaneswar, Bhubaneswar V. M/s. Indian Metal & Ferro Alloys Ltd, Bhubaneswar

MA 11/CTK/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3819 (ITAT-CUTTACK)
• Duration Of Justice: 4 year(s) 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 05-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 154; 14A; 250; 113

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER Indian Metals and Ferro Alloys Ltd., IMFA Building, Bomikhal, Rasulgarh, Bhubaneswar. PAN/GIR No. (Appellant DCIT, Corporate Circle 1(1), Bhubaneswar. PAN/GIR No. (Appellant Per Arun Khodpia, AM M.A. No.42/CTK/2017 filed by the assessee 13.10.2017 of IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER M.A.No.42/CTK/2017 (in ITA No.472/CTK/2014 Assessment Year : 2011-12 Indian Metals and Ferro Alloys Ltd., IMFA Building, Bomikhal, Rasulgarh, Bhubaneswar. Vs. DCIT, Corporate Circle 1(1), Bhubaneswar. No.AAIFJ 0479 (Appellant) .. ( Respondent M.A.No.11/CTK/2018 (in ITA No.22/CTK/2015) Assessment Year : 2011-12 DCIT, Corporate Circle 1(1), Bhubaneswar. Vs. Indian Metals and Ferro Alloys Ltd., IMFA Building, Bomikhal, Rasulgarh, Bhubaneswar PAN/GIR No.AAIFJ 0479 (Appellant) .. ( Respondent Assessee by : Shri Sachit Jolly, AR Revenue by : Shri S.C.Mohanty, Sr DR Date of Hearing : 24/6 Date of Pronouncement : 24/ O R D E R Per Arun Khodpia, AM M.A. No.42/CTK/2017 filed by the assessee ag of the Tribunal in ITA No.472/CTK/2014 for A.Y. 20 Page1 | 7 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER 14) DCIT, Corporate Circle 1(1), Bhubaneswar. Respondent) .22/CTK/2015) Indian Metals and Ferro Alloys Ltd., IMFA Building, Bomikhal, Rasulgarh, Bhubaneswar Respondent) Jolly, AR S.C.Mohanty, Sr DR 6/ 2022 /6/2022 against the order dated for A.Y. 2011-12. Indian Metals and Ferro Alloys Ltd Page2 | 7 2. M.A. No.11/CTK/2018 filed by the revenue against the order dated 13.10.2017 of the Tribunal in ITA No.22/CTK/2015 for A.Y. 2011-12. 3. Shri Sachit Jolly, ld AR appeared for the assessee and Shri S.C. Mohanty, ld Sr DR appeared for the revenue. 4. It was the submission of ld AR that the revenue has filed appeal against the order of the Tribunal dated 13.10.2017. It was the submission of ld AR that the appeal filed before the Hon’ble High Court of Orissa against the order of the Tribunal filed by the revenue is pending for admission awaiting the decision of the Tribunal in respect of M.A filed before the Tribunal. 5. Ld SR DR has filed written submission as follows: “ Mistakes apparent from record Sl.no,. Location in ITATorder Page Para Line Content Mistake Explanation 1. 1 1 2 “;..appeals..by revenue.. against ..order ...dated 7.11.14 Omission of theorder dt.14.10.14 MA page 3, para 5.1 st sentence “department...appeal...against both...orderse of ...CIT(A) i.e. appellate order dt.14.10.14 ..as well as rectification order u/s.154 r.w.s 250 dt,.7.11.14 Appeal no. 22/CTK/2015 MA 11/CTK/2018 arising out of, item 2: ‘Section under which the order appealed against was passed 250’ Two orders under that section as above. No merger. Reason: All issues in first order not covered in later order. Certain grounds of Dept. related to first order. Indian Metals and Ferro Alloys Ltd Page3 | 7 2. 4 5 “..revenue..in appeal against order dated 7.11.14 of the CIT(A)..u/s.154 deleting disallowance u/s.40(a)(ia)..2(24)(x) r.w.s 36(va).” i. Revenue also in appeal against order dated 14/10/2014 of the CIT(A). ii. Disallowance u/s 40a(ia), 2(24(x) r.w.s. 36(va) not in order dated 7.11.2014 of the CIT(A) u/s.154 but in order dated 14/10/2014 of the CIT(A). Ground 1 of revenue Appeal no. 22/CTK/2015 on deletion of disallowance u/s 40a(ia), 2(24(x) r.w.s. 36(va) unadjudicated. 3 5 8 Last ‘....appeal... of... department... allowed’. i. One of the ordrs (dated 14/10/2014) appealed against not considered at all. ii. One ground (1) [deletion of disallowance u/s. 40a(ia), 2(24(x) r.w.s. 36(va)] unadjudicated. iii. ITAT order only cancelling one of the orders [rectification by CIT(A)] appealed against involving the ground(2) on partial confirmation of disallowance u/s 14A was adverse to revenue. 4 4 8 Last but two ‘...cancel...rectification order...’ Only logic: “The CIT(A) has passed order u/s 154... which runs into 10 pages, which shows that it is not an order passed for rectification of any obvious or patent mistake apparent from Mistake apparent from record in CIT(A)’s order dtd. 14/10/2014: Not following the jurisdictional ITAT bench decision for an earlier year in the case of the assessee itself. Mistake rectified in accordance with the bench decision as per the assessee’s submission. Only one page (parts of pg.1 and 2) devoted to the issue of s.43B. Mistake apparent from record in CIT(A)’s order dtd.14/10/2014: Indian Metals and Ferro Alloys Ltd Page4 | 7 record’. (same para.) ‘Therefore in view of the decision of Hon’ble Supreme Court in the case of Volkart Brothers & Ors. (supra) which an order passed u/s 154 of the Act is not maintainable in law.’ Not following the co-ordinate bench decision. Only a paragraph [(b) of pg.3] points out the mistake and two paragraphs [(d) and (e) of pg.9 rectifies it accepting the assessee’s submission on the basis of the ITAT, Kolkata bench decision. In the SC decision relied on by the order impugned in this MA, what was held not to be a mistake apparent from record was the charge of firm tax at slab rates instead of at maximum rates u/s 17, applicable to ‘persons’, of the Indian Income Tax Act (corresponding to the omitted s. 113 of the Income Tax Act, 1961) on the basis of the definition of ‘person’ in s. 2(31) of the new act including a firme instead of s. 2(9) of the old act not including a firm. What was held to be beyond the purview of the rectification proceedings was deciding whether the above change in definition was amendment or declaratory law, determining the scope of the proceedings and holding that there could not be two opinions in the above facts and circumstances. 6. It was submitted by ld Sr DR that there are two orders of the ld CIT(A), one dated 14.10.2014 and another, which is rectification order dated 7.11.2014. It was the submission that the Tribunal has considered only the rectification order passed u/s.154 of the ld CIT(A) dated 7.11.2014 and has not adjudicated on the order of the ld CIT(A) dated 14.10.2014. It was the submission that the Form 36 provided only for the section under which the order appealed against was passed and not for the appeal nos. It was the submission that both the orders of the ld CIT(A) i.e. dated 14.10.2014 and rectification therein dated 7.11.2014 were the subject matter of appeal of the revenue. It was the further submission that the Indian Metals and Ferro Alloys Ltd Page5 | 7 Tribunal has rejected the grounds of the revenue by holding the rectification order contained more than 10 pages. It was the further submission that the grounds raised were also clearly against the order passed by the ld CIT(A) dated 14.10.2014. It was further submission that the Tribunal erred in not following the decision of Jurisdictional ITAT for earlier years in the case of the assessee itself. 7. In reply, ld AR submitted that there is only one mistake in the order of the Tribunal and that was in the last paragraph of the order of the Tribunal, which has been mentioned that “Thus, both the appeals of the assessee as well as of the department are allowed”. It was the submission that the rectification order passed by the ld CIT(A) having been held to be on debatable issue, the issue raised in the revenue’s appeal had been rejected. Final line of the order of the Tribunal should have read “ the department appeal was dismissed”. 8. We have considered the rival submissions. The primary requirement in respect of filing of appeal is that one appeal is to be filed against one order of the lower appellate authority. One appeal cannot be filed in respect of multiple orders of the lower appellate authority. Even if the appellate authority have passed consolidated order, separate independent appeals are to be filed for each of the assessment years and if multiple orders have been passed by the appellate authority for the same assessment year, then multiple appeals have to be filed against such multiple orders. In the Indian Metals and Ferro Alloys Ltd Page6 | 7 present case, perusal of the appeal filed by the revenue shows that the appeal No.22/CTK/2015 filed before the Tribunal is against the order of the ld CIT(A)-II, Bhubaneswar passed u/s.154 r.w.s 250 of the Act dated 7.11.2014. This is because that the appellate order that accompanied the Form 36 is dated 7/11/2014. The filing of the impugned order appealed against alongwith Form 36 being clearly in respect of rectification order, tThe arguments of ld Sr DR is not acceptable and consequently rejected. 9. Coming to the mistake pointed by ld AR, admittedly, the Tribunal has quashed the order of the ld CIT(A)-II, Bhubaneswar passed u/s.154 r.w.s 250 on 7.11.2014 on the ground that the issues were debatable and rectification was not permissible. Consequently, the recording of the Tribunal in the last line of its order stands modified to : “ Thus, the appeal of the assessee stands allowed and the appeal of the department stands dismissed”. 10. In the result, M.A. of the revenue is dismissed and that of the assessee is allowed. Order dictated and pronounced in the open court on 24/6/2022. Sd/- sd/- (George Mathan) (Arun Khodpia) JUDICIAL MEMBER ACCOUNTANT MEMBER Cuttack; Dated 24/06/2022 B.K.Parida, SPS (OS) Indian Metals and Ferro Alloys Ltd Page7 | 7 Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : 2. The Respondent. 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//