DCIT 1(3)(2), MUMBAI V. THE WEST COAST PAPER MILLS LTD, MUMBAI

MA 170/MUM/2022

AI Insights

The case involves the Revenue seeking to recall an order of the Tribunal passed in a previous miscellaneous application. The Revenue argued for a rectification of the order under section 254(2) of the Income Tax Act, 1961. However, the Tribunal found that the order in question was not passed under section 254(1), and thus, the application for rectification was not maintainable. The assessee's counsel objected to the application, emphasizing that only orders passed under section 254(1) could be recalled.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123639 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 24-11-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 21-06-2022
• Other Referred Cases: Dr. S Paneerselvam vs ACIT & Others
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ALPESH DHANOD
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI PAVAN KUMAR GADALE (JUDICIAL MEMBER) M.A. No.170/MUM/2022 (Arising out of ITA No. 6588/MUM/2016) (Assessment Year: 2012-13) Dy.Commissioner of Income- tax-1(3)(1), Room No.535 5 th Floor, Aayakar Bhavan M.K. Road, Mumbai-400 020 Vs. M/s West Cost Paper Mills Ltd, 3 rd Floor, Shreeniwas House, Hazarimal Somani Marg, Fort, Mumbai-400 001 PAN No. AAACT4179N Applicant Respondent Revenue by : Shri Chetan Kacha, Sr.AR Assessee by : Shri Alpesh Dhanod Date of Hearing : 25/11/2022 Date of pronouncement : 05/01/2023 ORDER PER OM PRAKASH KANT, AM This miscellaneous application has been preferred by the Revenue seeking recall of the order of the Tribunal passed in M.A. No.121/Mum/2021 arising out of ITA No.6588/Mum/2016 for A.Y. 2012-13. By way of this miscellaneous petition, the Revenue is seeking recall of the order of the Tribunal passed in th miscellaneous application. 2. The Ld.Counsel of the assessee strongly objected and submitted that miscellaneous application does not lie against the order passed in the miscellaneous application and the order w could be recalled is passed under section 254(1) of the Income Act, 1961 only and, therefore, this miscellaneous application is not maintainable. 3. We have heard rival submissions of the parties on the issue on dispute and perused relevant materials on record. We find that Revenue is seeking rectification of the order passed under section 254(2) of the Income miscellaneous application for rectifying the order can be entertained against the order passed under section 254(1) of the Act. Since the impugned order, which the Revenue has sought to be rectified, has not been passed under section 254(1) of the Act, application of the Revenue is not maintainable. In this regard reliance is placed on the decision of the Hon’ble Madras High Court ll of the order of the Tribunal passed in th miscellaneous application. The Ld.Counsel of the assessee strongly objected and submitted that miscellaneous application does not lie against the order passed in the miscellaneous application and the order w could be recalled is passed under section 254(1) of the Income Act, 1961 only and, therefore, this miscellaneous application is not We have heard rival submissions of the parties on the issue on dispute and perused relevant materials on record. We find that Revenue is seeking rectification of the order passed under section 254(2) of the Income-tax Act, 1961 (in short, ‘the Act’) where miscellaneous application for rectifying the order can be entertained against the order passed under section 254(1) of the Act. Since the impugned order, which the Revenue has sought to be rectified, has not been passed under section 254(1) of the Act, the miscellaneous application of the Revenue is not maintainable. In this regard reliance is placed on the decision of the Hon’ble Madras High Court West Cost Paper Mills Ltd M.A. 270/Mum/2022 2 ll of the order of the Tribunal passed in the The Ld.Counsel of the assessee strongly objected and submitted that miscellaneous application does not lie against the order passed in the miscellaneous application and the order which could be recalled is passed under section 254(1) of the Income-tax Act, 1961 only and, therefore, this miscellaneous application is not We have heard rival submissions of the parties on the issue on dispute and perused relevant materials on record. We find that Revenue is seeking rectification of the order passed under section tax Act, 1961 (in short, ‘the Act’) whereas miscellaneous application for rectifying the order can be entertained against the order passed under section 254(1) of the Act. Since the impugned order, which the Revenue has sought to be rectified, has the miscellaneous application of the Revenue is not maintainable. In this regard reliance is placed on the decision of the Hon’ble Madras High Court in the case of Dr. S Paneerselvam vs ACIT & Others in Noas.18693 and 18694 of 2006 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 Sec 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.” 3. In view of the above, the miscellaneous application filed by the Revenue is dismissed as not maintainable. Order pronounced under Rule 34(4) of the ITAT Rules, 1963 on 05/01/2023. Sd/- (PAVAN KUMAR GADALE JUDICIAL MEMBER Mumbai; Dated: 05/01/2023 Rahul Sharma, Sr. P.S. in the case of Dr. S Paneerselvam vs ACIT & Others in Noas.18693 and 18694 of 2006, wherein it has b “............ 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 on 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. dy by way of appeal is the only course open.” view of the above, the miscellaneous application filed by the Revenue is dismissed as not maintainable. Order pronounced under Rule 34(4) of the ITAT Rules, /2023. sd/ GADALE) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER West Cost Paper Mills Ltd M.A. 270/Mum/2022 3 in the case of Dr. S Paneerselvam vs ACIT & Others in W.P. wherein it has been held as “............ 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 on 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 tion 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. dy by way of appeal is the only course open.” view of the above, the miscellaneous application filed by the Order pronounced under Rule 34(4) of the ITAT Rules, sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary) ITAT, Mumbai West Cost Paper Mills Ltd M.A. 270/Mum/2022 4 BY ORDER, (Sr. Private Secretary) ITAT, Mumbai