Kalyanrao Vasantrao Kale HUF, Phandharpur V. Principal Commissioner of Income-Tax -4, Pune

MA 165/PUN/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5173 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-11-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 02-07-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL R. GANOO; WAY OF IMPUGNED RECTIFICATION APPLICATION IS NOT LEGALLY TENABLE
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE „A‟ BENCHES :: PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER & SHRI PARTHA SARATHI CHAUDHURY, HON. JUDICIAL MEMBER M.A.No. 165/PUN/2023 (Arising out of MA No.20/PUN/2023 in ITA No.184/PUN/2021) (A.Y. 2016-17) Kalyanrao Vasantrao Kale (HUF), Vasant Vihar, Plot No.84, Vasant Nagar, Yashwant Housing Society, Pandharpur Solapur PAN : AAJHK 6482 M vs PCIT-4, Pune Applicant Respondent Assessee by : Shri Sunil R. Ganoo, CA Revenue by : Shri A.K. Mahala, DR Date of hearing : 17/11/2023 Date of pronouncement : 22/11/2023 ORDER Per PARTHA SARATHI CHAUDHURY, JM: This Misc. Application preferred by the assessee emanates from the order of this Tribunal in MA No.20/PUN/2023, dated 23/05/2023 for A.Y. 2016-17. 2. We have gone through the submissions raised by the assessee in its Misc. Application and it can be observed that the assessee actually seeks to rectify one MA over another MA. Therefore, it has been contended by the assessee that their MA was dismissed on 23/05/2023 and again now assessee has come up with another MA MA No.165/PUN/2023 Kalyanrao Vasantrao Kale (HUF) 2 against that MA, which had already been dismissed by the Tribunal. 3. We find that on identical facts and circumstances and issues, the Pune Tribunal in M.A. No. 18/PUN/2019 against M.A. No. 49/PUN/2016 arising out of I.T.A No. 1916/PUN/2014 for A.Y. 2007-08 in the case of ITO Vs. Mercedes Benz Education Academy vide order dated 14-5-2019, has categorically held that there is no provision in the Act to allow filing of Misc. Application against the order passed by the Tribunal in another Misc. Application. The relevant para is extracted as follows: “The applicant-Revenue is aggrieved by the aforesaid directions of Tribunal in miscellaneous order that registration u/s 10(23C)(vi) of the Act was deemed to be granted w.e.f. 30-9- 2006. The Misc. Application filed by applicant-Revenue is not maintainable as there is no provision in the Act to allow filing of Misc. application against an order passed by the Tribunal in Misc. application filed by the assessee. Hence, Misc. application moved by the Revenue is dismissed.” 4. We also find that Delhi Special Bench decision in M.A.No. 57/Del/2010 (in MA No. 402/Del/2009) (in M.A. No. 05/Del/2008 for A.Y. 1995-96 in the case of Shri Padam Prakash (HUF) Vs. ITO, has held as follows: “9. We have carefully considered the rival submissions in the light of material placed before us. It is true that sub-section (2) of Section 254 can be invoked only in a situation if there is a mistake in the order passed by the Tribunal under sub-section (1) of Section 254. The impugned miscellaneous application filed by the assessee is against the order passed on 27.11.2009 which is an order passed u/s 254(2). Therefore, principally, the application filed by the assessee has to be rejected on this ground alone and for this purpose, reliance can be placed on the following decisions:- (i) CIT Vs. President, Income Tax Appellate Tribunal – 196 ITR 838 (Orissa) wherein it has been held that MA No.165/PUN/2023 Kalyanrao Vasantrao Kale (HUF) 3 to attract applicability of Section 254(2), a mistake which is sought to be rectified must be apparent from record and the same must be in any order passed under sub-section (1) of Section 254. The order referred to in Section 254(1) is one relating to an appeal filed either by the assessee or by the Revenue. The “appeal” referred to in the provision is one filed u/s 253. Therefore, the order which can be rectified must be one which has been passed by the Tribunal in an appeal filed u/s 253. An order rejecting an application for rectification u/s 254(2) cannot be rectified u/s 254(2). The same may relate to an appeal but is not an order passed by the Tribunal under sub-section (1) of Section 254 and thus, it was held that subsequent application filed by the assessee was rightly rejected by the Tribunal. (ii) x xxxxx 10. In the case of CIT Vs. Aiswarya Trading Co. – 196 Taxman 385 (Ker.), it was held that the Tribunal was justified in refusing to entertain an application filed by the Revenue under Section 254(2) to rectify the order issued by the Tribunal in an earlier rectification application filed by the assessee, as the second application on the very same issue is not maintainable before the Tribunal. 11. xxxxxx 12. If the application filed by the assessee is viewed in the light of aforementioned judicial pronouncements, then it will become clear that the relief which is being sought by the assessee by way of impugned rectification application is not legally tenable for the reason that the Tribunal has no power to adjudicate upon subsequent application filed u/s 254(2). Here, it may be the case of the assessee that earlier order against which impugned rectification application is filed is also an order passed on subsequent application, then the only course permissible to the assessee is to file an appeal against that order and not to approach the Tribunal to contend that the said order was an invalid order, therefore it should be recalled.” 5. Therefore, the parameters of law has been clearly set out in the afore-stated judicial pronouncements that Misc. Application cannot be filed against another Misc. application and the Tribunal has no power to adjudicate upon subsequent application u/s 254(2) of the Act. In MA No.165/PUN/2023 Kalyanrao Vasantrao Kale (HUF) 4 view of the afore-stated discussion, we find no force in the Misc. Application filed by the assessee which is rejected and dismissed. 6. In the result, Misc. application filed by the assessee is dismissed. Order pronounced in open Court on 22 nd November, 2023. Sd/- Sd/- (INTURI RAMA RAO) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 22 nd November, 2023 vr/- Copy to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT concerned. 4. The DR, ITAT, “A” Bench Pune. 5. Guard File. By Order // TRUE COPY // Senior Private Secretary ITAT, Pune.