Khimraj Sonajee Bagreca L/H of Late Smt Patuben Sonmalji Shah, Ahmedabad V. ITO Ward-7, Vapi

MA 15/SRT/2023

AI Insights

The case involves a Miscellaneous Application by the assessee, Late Smt. Patuben Sonmalji Shah, against an order of the Income Tax Appellate Tribunal, Surat Bench. The assessee sought to recall the Tribunal's order dated 12.10.2022, arguing that their written submissions were not considered. The Tribunal had previously dismissed the assessee's appeal on the grounds that the show cause notice from the Ld. CIT(A) was not an appealable order under section 253 of the Income Tax Act, 1961. The Tribunal upheld its decision, stating that since the show cause notice was not an appealable order, there was no need to consider the written submissions on merit.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301701 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-07-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 06-03-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 147; 263; 132; 154; 153A; 80G; 254(2); 272A; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA No. 15/SRT/2023 [Arising in ITA Nos. 145/SRT/2019] Assessment Year: (2011-12) (Virtual Court Hearing) Late Smt. Patuben Sonmalji Shah L/h Khimraj Sonajee Bagrecha B/02, M.S. Apartment Opp. Rita Park, Shahibaug, Ahmedabad- 380004 Vs. Income Tax Officer, Ward-7 Vapi, Room No.810, 8 th Floor, Fortune Square-II, Daman Road, Chala, Vapi- 396191 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ARGPA 0340 A (Applicant) (Respondent) Ǔनधा[ǐरती कȧ ओर से /Assessee by Shri Paras F Jain, C.A राजèव कȧ ओर से /Respondent by Shri Vinod Kumar, Sr. DR सुनवाई की तारीख /Date of Hearing 10-07-2023 उɮघोषणा कȧ तारȣख /Date of Pronouncement 04-08-2023 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: By way of this Miscellaneous Applications, the assessee has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961 (in short ‘the Act’) has crept in the order of the Tribunal dated 12.10.2022 ( vide assessee`s appeal in ITA No.145/SRT/2019 for A.Y. 2011-12). 2. The case of the Learned Counsel for the assessee, in this Miscellaneous Application, is that assessee has filed written submission, on merits of the case, which was not considered by the Tribunal while adjudicating the issue. Therefore, the order of the Tribunal dated 12.10.2022 may be recalled. Page | 2 MA No.30/SRT/2022 Sh. Gulambhai A Patel 3. On the other hand, Ld. Sr. DR for the Revenue submitted that the appeal filed by the assessee was against the show cause notice of Ld. CIT(A) and the said show cause notice is not appealable order u/s 253 of the Act, therefore assessee`s appeal was not tenable in the eye of law. The appealable orders before Tribunal, have been mentioned u/s 253 of the Act, and appeal filed by the assessee was only against show cause notice of the Income Tax Authority, is not appealable order. Therefore ld DR contended that there is no apparent mistake in the order passed by the Tribunal, hence miscellaneous application filed by the assessee may be dismissed. 4. We have heard both the parties and perused the materials available on record. First of all, we note that assessee has not appeared before the Tribunal, on the date of hearing. However, assessee has filed written submission before the Registry of the Tribunal. We note that assessee has filed the written submission for adjudication on merit. The Tribunal noted that assessee`s appeal need not to be adjudicated on merit, because the assessee has filed the appeal against the show cause notice issued by the Income Tax Authorities, which is not appealable order, as per the provisions of section 253 of the Act. At this juncture, it is appropriate to reproduce the provisions of section 253 of the Act, (to the extent useful for our analysis), which reads as follows: “Appeals to the Appellate Tribunal 253. (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order— (a) an order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, a Commissioner (Appeals) under section 154, section 250, section 270A, section 271, section 271A [, section 271AAB, section 271AAC, section 271AAD], section 271J or section 272A; or Page | 3 MA No.30/SRT/2022 Sh. Gulambhai A Patel [(aa) an order passed by a Joint Commissioner (Appeals) under section 154, section 250, section 270A, section 271, section 271A, section 271AAC, section 271AAD or section 271J; or] (b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st day of January, 1997; or (ba) an order passed by an Assessing Officer under sub-section (1) of section 115VZC; or [(c) an order passed by,- (i) a Principal Commissioner or Commissioner under section 12AA or section 12AB or under clause (vi) of sub- section (5) of section 80G or under section 263 or under section 270A or under section 271 or under section 272A or an order passed by him under section 154 amending any such order; or (ii) a Principal Chief Commissioner or Chief Commissioner or a Principal Director General or Director General or a Principal Director or Director under section 263 or under section 272A or an order passed by him under section 154 amending any such order; or] (d) an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153C in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order; or (e) an order passed by an Assessing Officer under sub-section (3) of section 143 or section 147 or section 153A or section 153C with the approval of the Principal Commissioner or Commissioner as referred to in sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order; or (f) an order passed by the prescribed authority under sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10. (2) The Principal Commissioner or Commissioner may, if he objects to any order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, *a [the Joint Commissioner (Appeals) or the] Commissioner (Appeals) under section 154 or section 250, direct the Assessing Officer to appeal to the Appellate Tribunal against the order............” Page | 4 MA No.30/SRT/2022 Sh. Gulambhai A Patel 5. Since assessee has filed the appeal against the show cause notice issued by the Ld. CIT(A) which is not appealable order as per section 253 of the Act. It is settled position of law that ‘right to appeal’ is given by the Act. When the notice issued by ld CIT(A) is not an appealable order then there was no need to consider the written submission filed by the assessee on merit. The assessee submitted the written submissions on merit and had Tribunal adjudicated the issue on merit, then only, the written submission filed by the assessee, would have been considered. Since the Tribunal has not adjudicated the issue on merit, therefore there is no occasion to consider the written submission filed by the assessee on merit. 6. We note that Tribunal has adjudicated the issue under consideration observing as follows: “4. We have heard ld DR for the Revenue and perused the material available on record and noted that appeal is filed by the assessee against the show cause notice issued by the ld CIT(A), which is not appealable order, as per section 253 of the Income Tax Act of 1961. We note that assessee has filed appeal before the Tribunal against the following show cause notice, which is reproduced below: Page | 5 MA No.30/SRT/2022 Sh. Gulambhai A Patel 5. The assessee has stated in his ground nos. 1, 2 and 3 raised by him that ld CIT(A) was wrong, vide letter dated 22.01.2019, in treating an order rejecting the appeal filed manually. Thus, we note that show cause notice issued by the Ld. CIT(A) is not appealable order under section 253 of the Act, therefore, such appeal is liable to be dismissed, as it is not maintainable as per the provisions of section 253 of the Act, therefore, we dismiss the appeal of the assessee.” 7. At the cost of repetition, we state that since the show cause notice issued by ld CIT(A), is not an order, and the same is not appealable u/s 253 of the Act. Therefore, the appeal has been dismissed, as not maintainable and therefore the Tribunal has not adjudicated the issue on merit and hence not considered the written Page | 6 MA No.30/SRT/2022 Sh. Gulambhai A Patel submission of the assessee on merit. The Tribunal has dismissed the appeal of assessee, only based on the fact, that the appeal filed by the assessee was against the show cause notice issued by the Ld. CIT(A), which is not an appealable order as per section 253 of the Act. Considering the above facts, we noted that notice issued by ld CIT(A) is not appealable order, therefore, there is no mistake apparent on record, in the order of the Tribunal. Therefore the miscellaneous application filed by the assessee is hereby dismissed. 8. In the result, Miscellaneous Application filed by the assessee is dismissed. Order is pronounced 04/08/2023 in the open court on. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत/Surat Ǒदनांक/ Date: 04/08/2023 Dkp Outsourcing Sr.P.S Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat