ESSEL MINING & INDUSTRIES LIMITED, MUMBAI V. DY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(4), MUMBAI

MA 207/MUM/2023

AI Insights

The case revolves around a Miscellaneous Application filed by Essel Mining & Industrial Limited under section 254(2) of the Income Tax Act, 1961, seeking rectification of a Tribunal order dated 28/11/2022. The original appeal pertained to an assessment order passed under sections 143(3), 153C, and 263 of the Act for the assessment year 2009-10. The Tribunal had earlier quashed a revision order under section 263 in a separate appeal. The assessee argued that the dismissal of their appeal as infructuous could lead to a situation where, if the Department's appeal against the quashing of the revision order is successful, their original assessment order would stand revived without any legal remedy for the assessee. The Department opposed the application, asserting that there was no mistake in the Tribunal's earlier order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136043 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 25-05-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 26-02-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 254(2); 153C

Judgement Text

म ु ंबई ठ “ई ”, म ु ंबई , ए ं ओम ! " ंत , ेख े म& IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “ E”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER MA NO.207/MUM/2023 [Arising out of ITA No.1968/Mum/2022, A.Y.2009-10] Essel Mining & Industrial Limited, Industry House, 18 th Floor, 10, Camac Street,Kolkata – 700 017. PAN: AAACE-6607-L ..... ! ' /Applicant बन म Vs. Dy. CIT, Central Circle -1(4), Mumbai, 9 th Floor, Old CGO Building, M.K.Road, Mumbai 400 020. ..... ! त /Respondent ! ' * / Applicant by : Shri Yogesh Thar ! त * /Respondent by : Ms. Richa Gulati, Sr.AR ु न ई + त / Date of hearing : 26/05/2023 ,-. + त / Date of pronouncement : 11 /07/2023 े"/ ORDER PER VIKAS AWASTHY, JM: The assessee has filed a Miscellaneous Application u/s. 254(2) of the Income Tax Act, 1961 [in short ‘the Act’] seeking rectification in the Tribunal order dated 28/11/ 2022 vide which appeal of the assessee in ITA No.1968/Mum/2022 for assessment year 2009-10 was decided. 2. Shri Yogesh Thar appearing on behalf of the assessee submitted that in para -4 of the order, the Tribunal has mentioned that the appeal of assessee is 2 MA NO.207/MUM/2023 [Arising out of ITA No.1968/Mum/2022, A.Y.2009-10] “dismissed as infructuous”. The ld. Authorized Representative of the assessee submitted that appeal was filed in proceedings originating from assessment order passed u/s. 143(3) r.w.s. 153C r.w.s. 263 of the Act. A separate appeal in ITA No.3202/Mum/2018 was filed against the revision order passed u/s. 263 of the Act. The Tribunal vide order dated 15/11/ 2022 quashed the revision order u/s. 263 of the Act. Consequent to quashing of revision order, the present appeal of the assessee should have been allowed. Expressing his apprehension in Department filing appeal against Tribunal order quashing revisional order, he submitted that in case the Department files an appeal against the order of Tribunal dated 15/11/2022 quashing revision order u/s. 263 of the Act, and in the event Hon’ble High Court allows the appeal of Department, then the impugned order passed by Assessing Officer u/s. 143(3) r.w.s. 153C r.w.s. 263 of the Act shall get revived and if, the appeal of the assessee is treated as dismissed then the order u/s. 143(3) r.w.s. 153C r.w.s. 263 of the Act would become final. The assessee would be left with no legal remedy. The ld. Authorized Representative of the assessee submitted that the right course is to quash the impugned order passed u/s. 143(3) r.w.s. 153C r.w.s. 263 of the Act and the appeal of assessee to be treated as allowed. 3. Ms. Richa Gulati representing the Department vehemently opposed the application of the assessee /applicant filed u/s. 254(2) of the Act. The Ld. Departmental Representative submitted that there is no mistake in the order of Tribunal as alleged by the assessee /applicant. 4. Both sides heard. The assessee in ITA No.1968/Mum/2022 was in appeal against the order of CIT(A) dated 10/06/2022 in proceedings arising from assessment order passed u/s. 143(3) r.w.s. 153C r.w.s. 263 of the Act. 3 MA NO.207/MUM/2023 [Arising out of ITA No.1968/Mum/2022, A.Y.2009-10] The revision order passed by PCIT u/s. 263 of the Act was quashed by the Tribunal in ITA No.3202/Mum/2018 vide order dated 15/11/2022. Once substratum is eroded, the consequent orders passed there to have no base to stand. The Tribunal has rightly dismissed the appeal of assessee as having become infructuous. We find no merit in the argument advanced by the ld. Authorized Representative of the assessee. The anxiety of the assessee is unfounded. The ld. Authorized Representative of the assessee has misunderstood the expression “dismissed as infructuous” There is a difference between simpliciter dismissal of the appeal and appeal being dismissed having become infructuous. The later expression denotes consequential effect and not the decision on merits. We find no mistake, much less any apparent mistake in the order dated 28/11/2022. 5. In the result, Miscellaneous Application is dismissed being devoid of any merit. Order pronounced in the open Court on Tuesday the 11 th day of July, 2023. Sd/- Sd/- (OM PRAKASH KANT) (VIKAS AWASTHY) ेख /ACCOUNTANT MEMBER /JUDICIAL MEMBER म ु ंबई/ Mumbai, / न ं /Dated 11/07/2023 Vm, Sr. PS(O/S) 4 MA NO.207/MUM/2023 [Arising out of ITA No.1968/Mum/2022, A.Y.2009-10] त ल प अ े षतCopy of the Order forwarded to : 1. '/The Appellant , 2. ! त / The Respondent. 3. ु 0त CIT 4. 1 2 ! त न , . . ., म ु बंई/DR, ITAT, Mumbai 5. 2 45 6 7 /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai