Appeal details
Counselvise Citation
[NaN] 107 COUNSELVISE.COM (IT) 1915 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
03-12-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
F
Assessment Year
1992-1993
Appeal Filed On
16-09-2021
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, ‘F‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER & SHRI KULDIP SINGH, JUDICIAL MEMBER MA No.193/Mum/2021 (Arising out of ITA No.193/Mum/2021 (Asse ssment Year :1992-93) M/s. Jyoti Harshad Mehta (Legal Heir of Late Harshad’s Mehta 32, Madhuli Dr. A. Besant Road Worli, Mumbai – 400 018 Vs. Pr. Commissioner of Income Tax(c)-2 19 th Floor, Air India Building, Nariman Point Mumbai – 400 021 PAN/GIR No.ABAPM1848F (Appellant) .. (Respondent) Assessee by Shri Ajay Shah Revenue by Shri Mathew Date of Hearing 03/12/2021 Date of Pronouncement 03/12/2021 आदेश / O R D E R PER M. BALAGANESH (A.M): By virtue of this Miscellaneous Application, assessee seeks modification of the order passed by this Tribunal in ITA No.1159/Mum/2020 for A.Y.1992-93 dated 26/03/2021. The assessee seeks modification in para 3.12 of the Tribunal order wherein this Tribunal had mentioned second round of proceedings instead of preferring third round of proceedings before this Tribunal. Hence, we deem it fit to modify para 3.12 of the order dated 26/03/2021 as under:- MA No. 193/Mum/2021 Ms. Jyoti Harshad Mehta (Legal Heir of Late Harshad S Mehta) 2 “3.12. No doubt this section refers to any order passed by the Assessing Officer. Any order passed by the Assessing Officer has to be an order which is independently passed by the Assessing Officer. In the impugned case, the impugned order dated 02.05.2018 against which ld. PCIT has invoked section 263 of the Income Tax Act, 1961 is an order in fact which was passed in consequence of giving the appeal affect of the order passed by ld.CIT(A) dated 28.06.2017 which is not included in the order eligible for revision in the aforesaid Explanation u/s 263 of the Act. Technically it cannot be called to be the order of the Assessing Officer. If ld. PCIT is permitted to invoke jurisdiction u/s 263 of the Income Tax Act, 1961 in respect of the order passed for giving effect to the order of the ld.CIT(A), then the provisions of clause (c) of Explanation 1 of Section 263 of the Act will become redundant. One cannot interpret the provision of section in this manner. It is an undisputed fact that the order dated 02.05.2018 against which the jurisdiction under Section 263 of the Act has been invoked by ld. PCIT has been passed, to give effect to the order of the ld.CIT(A) dated 28.06.2017. The provisions of clause (c) of Explanation 1 to Section 263 of the Act clearly debars the powers of ld. PCIT for invoking jurisdiction in respect of the matters as had been considered and decided in such appeal. It is not denied that all the matters for which the ld. PCIT invoked jurisdiction under section 263 of the Act had duly been considered in appellate proceedings not only by ld.CIT(A) but also by this Tribunal vide its order dated 14.01.2019. Clause (c) of Explanation (1) to Section 263 (1) of the Act has specifically been inserted with the purpose that judicial hierarchy must be maintained and the junior officer should not brush aside the decision of superior or the Appellate authority on the subject matter which had been duly considered and decided by the Appellate authority. We are conscious of the fact that the order dated 2.5.2018 passed by the ld AO cannot be subject matter of appeal by the revenue as no appeal can be filed by the revenue. Even assessee has also not filed any appeal against the said order. But the facts of the above case clearly prove beyond any doubt that the issue in the said order was subject matter of appeal before the ld CITA as well as this tribunal in the appeals filed in the third round of proceedings filed by the revenue as well as by the assessee. The tribunal has considered and decided the subject matter of the issues before the ld AO vide its order dated 14.1.2019 prior to the order passed u/s 263 of the Act by the ld PCIT. Therefore, having regard to the provisions of section 263 of the Act, the order dated 2.5.2018 giving appeal effect to the order of the ld CITA was subject matter of these appeals and was duly MA No. 193/Mum/2021 Ms. Jyoti Harshad Mehta (Legal Heir of Late Harshad S Mehta) 3 considered and decided by the tribunal vide order dated 14.1.2019. We are also aware of the fact that no appeal has been filed by the assessee against the order of the ld AO passed u/s 154 of the Act dated 2.5.2018, as this order in fact cannot be regarded to be an independent order passed by the ld AO, for which revision jurisdiction u/s 263 of the Act could be invoked by the ld PCIT. One more pertinent point which must be appreciated is that initially the revenue and the assessee filed an appeal before the Tribunal against the order of ld.CIT (Appeal) and knowingly that even after passing the order of the Tribunal dated 14.01.2019, ld. PCIT under section 263 of the Act passed impugned order dated 22.01.2020 directing the ld. AO to withdraw the relief given by the ld.CIT (Appeal) and as confirmed by this Tribunal. This fact that Tribunal has duly considered and confirmed the relief given by the ld.CIT (Appeal) was placed before the ld. PCIT during the course of 263 proceeding which is apparent from pages 34 to 38 of the order of the ld. PCIT. The ld. PCIT brushed aside the argument of the assessee made merely on the basis that the revenue has not accepted the order of the Tribunal dated 14.01.2019 and the same is being contested before Hon’ble High Court. Needless to mention that the decision of the tribunal is binding on revenue including the ld. PCIT which passed an order under Section 263 of the Act until and unless operation of the order of this tribunal is stayed by the Hon'ble High Court. The operation of the order of the Tribunal has not been stayed by the Hon’ble High Court. Hence, it could be safely concluded that the subject matter of issues in the revision proceedings u/s.263 were already duly considered and decided by the ld. CIT(A) and also by this Tribunal and accordingly, the ld. PCIT could not have validly invoked his revision jurisdiction u/s.263 of the Act in terms of Clause (C) of Explanation 1 of Section 263(1) of the Act on the very same issues.” 2. Further, the assessee had also sought modification in para 3.9 of the Tribunal order dated 26/03/2021 wherein the date of assessment order was not mentioned by this Tribunal. Accordingly, we deem it fit to modify para 3.9 of the order dated 26/03/2021 as under:- “3.9. We find that the very same issues were indeed subject matter of appeal before the ld. CIT(A) in the third round of MA No. 193/Mum/2021 Ms. Jyoti Harshad Mehta (Legal Heir of Late Harshad S Mehta) 4 proceedings and the ld. CIT(A) had already considered and decided these issues in its appellate order. Further, the Revenue as well as the assessee had preferred an appeal before this Tribunal against the order of the ld. CIT(A) dated 28/06/2017 and this Tribunal vide its order dated 14/01/2019 had quashed the assessment order dated 15/03/2016 in ITA No.5702 & 6028/Mum/2017 by observing as under:- “6.8. After going through the order of this Tribunal dated 29.10.2014 in the present case, we noted that this Tribunal has not set aside assessment and has also not directed the AO to make a fresh assessment but as observed by the AO himself in his order giving effect to the order of the Tribunal dated 30.01.15 restored/set aside the issue to the file of AO and directed the AO to verify /examine each entry in the books of accounts and to decide the issue afresh after examining the books of accounts of the assessee. Consequently, we noted, that the AO, passed the order dated 30.01.2015 determining the income of the assessee at Rs.6,84,08,000/- as declared by the assessee against the income of Rs.2014,04,65,298/- determined vide assessment order passed u/s 144 dated 27.3.1995. The AO without resorting to the provisions of section 154 of the Act, passed another order giving effect to the order of the Tribunal dated 15.3.2016 purporting to be an order u/s 254 r.w.s 143(3) of the Act assessing the total income u/s 254 rws 143(3) of the Act which order is under challenge before us. Sh. Denial even though vehemently argued and tried to justify the action of the AO and the impugned order passed by the AO to be a valid order, he also contended that the facts involved in this case are different as to the facts involved in the case of Classic Share & Stock Broking Services Ltd (Supra) but we do not agree with his contention. The AO while passing the first order giving effect to the order of this Tribunal dated 20.09.2014 clearly mentioned that ITAT restored/set aside the issue to the file of the AO to verify/examine each entry in the books of account and to decide the issue afresh after examining the books of account of the assessee and ultimately revised the assessed income accordingly, if there was a mistake in the order of the AO dated 30.01.2015, the only course of action available to the AO was to take an action u/s 154 of the Act but not to initiate the proceedings for passing a second order i.e. the impugned order. The AO having once passed an order giving effect to the order of ITAT, becomes functus officio. The AO does not have any jurisdiction to pass second order giving effect to the order of the Tribunal. We do not find any such provision under the Act and even Sh. Denial could not bring to our knowledge or attention any such provision. It is an undisputed fact that the AO has not taken any action u/s 154 of the Act in respect of the first order dated 30.01.2015 giving effect to the order of Tribunal dated 29.10.2014. Even no contrary decision was brought to our knowledge which has taken a view that the AO has the power to pass a second order giving effect to ITAT order. We are bound to follow the decision of the jurisdictional High Court as well of the co-ordinate Bench. We therefore quash and set aside the assessment order dated 15.03.2016 passed u/s 144 rws 253 of the Act as invalid. Thus the ground no. 1 & 2 taken by the assessee are allowed.” MA No. 193/Mum/2021 Ms. Jyoti Harshad Mehta (Legal Heir of Late Harshad S Mehta) 5 3. The aforesaid errors pointed out by the assessee in the Miscellaneous Application were not controverted by the Revenue before us. Accordingly, para 3.9 & 3.12 of the old Tribunal order dated 26/03/2021 stood modified as above. This modified order shall be read together with the original Tribunal order dated 26/03/2021. 4. In the result, Miscellaneous Application of the assessee is allowed. Order pronounced on 03/12/2021 by way of proper mentioning in the notice board. Sd/- (KULDIP SINGH) Sd/- (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 03 /12/2021 KARUNA, sr.ps Copy of the Order forwarded to : BY ORDER, (Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//
