The Punyashlok Ahilyadevi Holkar Solapur University, Solapur V. Assistant Commissioner of Income-tax, Solapur

MA 233/PUN/2022

AI Insights

The case revolves around the assessee, The Punyashlok Ahilyadevi Holkar Solapur University, which filed a Miscellaneous Application under section 254(2) of the Income Tax Act, 1961, seeking to recall an earlier ITAT order that denied them exemption under section 10(23C)(iiiab) of the Act. The ITAT had previously relied on a decision by the Bombay High Court in a similar case, which the assessee contested as being per incuriam. The tribunal, however, found no grounds to recall its earlier decision, citing the binding precedent of the jurisdictional High Court and dismissing the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134163 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-06-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-04-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 27-07-2022
• Other Referred Cases: CIT v. Tata Institute of Social Sciences
• Laws Referred To: Income Tax Act, 1961, Income Tax Rules, 1962
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL GANGOO
• Keywords: Set aside
• Section: 254(2)

Judgement Text

आयकर अपीलीय अिधकरण “ए” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “A” :: PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER Miscellaneous Application No.233/PUN/2022 (Arising out of ITA No.1544/PUN/2016) Assessment Year: 2011-12 The Punyashlok Ahilyadevi Holkar Solapur University Solapur, (Previously known as Solapur University), Solapur-Pune Highway, Kegaon, Solapur – 413 255. PAN: AAALS 0728 H Vs The Assistant Commissioner of Income Tax, Circle-2, Solapur. Applicant Respondent आदेश/ORDER PER DR. DIPAK P. RIPOTE, AM: This assessee’s miscellaneous application filed u/s. 254(2) of the Income Tax Act, 1961 [in short “the Act”] seeks to recall tribunal’s order dated 22.06.2022 passed in its main appeal ITA.No.1544/PUN/2016. 2. The assessee has moved this application by contending as under:- Assessee by : Shri Sunil Gangoo – AR Revenue by : Shri M.G. Jasnani - DR Date of hearing : 21.04.2023 Date of pronouncement : 19.06.2023 2 M.A.No.233/PUN/2022 “4. The only issue involved in the appeal is whether the appellant assessee was eligible for exemption u/s. 10(23C)(iiiab) of the I.T. Act, 1961 r.w.r. 2BBB of I.T. Rules, 1962. The Hon. ITAT has rejected this ground of appeal raised by the appellant assessee placing reliance on the decision of Hon. Bombay High Court in the case of CIT v. Tata Institute of Social Sciences reported in 105 taxman.com 128 [Copy enclosed in Annexure A] vide page No.8 Para No.7[xi] that Nevertheless ....................... Para No. [xiii] thus the revenue’s appeal is dismissed. 5. With due respect to the Hon. Bombay High Court the appellant assessee most respectfully submits that the aforesaid conclusion drawn by the Hon. Bombay High Court is per incuriam/sub silentio and hence not binding precedent. 6. With due respect to the Hon. Members the appellant assessee most respectfully submits that the view of the learned Members of ITAT that though the Explanation to Section 10[23C] [iiiab] of the I.T. Act 1961 is introduced w.e.f. 01/04/2015 it is retrospective and hence the same is applicable for A.Y.2011-12 is devoid of merits, patently illegal and being arbitrary and contrary to the well settled principles of interpretation of Statute as explained by the various decisions of the Hon. Supreme Court from time to time, the same deserves to be corrected/withdrawn forthwith and therefore this rectification application is filed. 7. The appellant assessee most respectfully and with due respect to the Hon. Members submits that the above referred conclusion drawn is ex facie erroneous, arbitrary, perverse, illegal and without jurisdiction and amounts to mistake apparent from records which needs to be corrected.” 3. Heard both the parties. Case files perused. In this case, the ITAT has followed the Order of the Hon’ble Jurisdictional High Court in the case of CIT Vs Tata Institute of Social Science [2019]105 taxmann.com 128 (Bom). The Ld.Authroised Representative(ld.AR) has pleaded in the Miscellaneous Application that conclusion drawn 3 M.A.No.233/PUN/2022 by the Hon’ble Bombay High Court in the case of Tata Institute of Social Sciences is per-incurium. However, we do not agree with the Ld.AR. Since our decision is based on the decision of the Hon’ble Bombay High Court (the Hon’ble jurisdictional High Court), we do not find any mistake apparent from the record. Therefore, in the facts and circumstances of the case the MA is rejected. 4. We find support on this issue from the order of the Hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd., 440 ITR 1 (SC) wherein lordship has held as under : “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT dated 18-11-2016 recalling its earlier order 4 M.A.No.233/PUN/2022 dated 6-9-2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the 5 M.A.No.233/PUN/2022 High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18-11- 2016 recalling its earlier order dated 6-9-2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 6-9-2013 passed in the respective appeals preferred by the Revenue are hereby restored.” 5. In view of the above, decision of the Hon’ble Supreme Court (supra), there is no mistake apparent from the record. Therefore, the Miscellaneous Application is rejected. 6. In the result, Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open Court on 19 th June, 2023. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 19 th June, 2023/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. 6 M.A.No.233/PUN/2022 आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.