Deputy Commissioner of Income tax, Pune V. M/s. Alfa Laval India Ltd., Pune

MA 327/PUN/2022

AI Insights

The case involves the Deputy Commissioner of Income Tax, Circle-8, Pune (Revenue) against M/s. Alfa Laval India Ltd. (Assessee). The Revenue filed a Miscellaneous Application (MA No. 327/PUN/2022) seeking rectification of a previous Tribunal order (MA No. 46/PUN/2020) which had dismissed their earlier application. The Tribunal examined whether it had the authority to entertain a subsequent Miscellaneous Application challenging the dismissal of an earlier application. The Tribunal referenced several judicial precedents to conclude that it does not have the power to adjudicate on subsequent applications under Section 254(2) of the Income Tax Act, 1961.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 138116 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-07-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-06-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 23-06-2022
• Other Referred Cases: ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., CIT Vs. Ramesh Electric & Trading Company, ITO Vs. Mercedes Benz Education Academy, Shri Padam Prakash (HUF) Vs. ITO
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE „B‟ BENCHES :: PUNE BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER & DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER M.A.No. 327/PUN/2022 (Arising out of MA No. 46/PUN/2020 in ITA No.2638/PUN/2016) (A.Y. 2011-12) DCIT, Circle-8, Pune. vs M/s. Alfa Laval India Ltd., Mumbai Pune road, Dapodi, Pune. PAN: AAACA 5899 A Applicant/Revenue Respondent / Assessee Assessee by : Shri Nikhil S. Pathak, Adv. Revenue by : Shri Suhas Kulkarni, DR Date of hearing : 16/06/2023 Date of pronouncement : 03/07/2023 O R D E R Per PARTHA SARATHI CHAUDHURY, JM: This Misc. Application preferred by the Revenue emanates from the order of this Tribunal in MA No.46/PUN/2020, dated 08/08/2022 for A.Y.2011-12. 2. We have gone through the submissions raised by the Department in its Misc. Application and it can be observed that the Revenue actually seeks to rectify one MA over another MA. Therefore, it has been contended by the Revenue that their MA was dismissed on 08/08/2022 and again now they have come up with another MA against that MA, which had already been dismissed by the Tribunal. There are series of decisions by the Hon'ble Supreme Court as well as Hon'ble High Courts expounding scope of exercising powers u/sec. MA No.327/PUN/2022 M/s. Alfa Laval India Ltd. 2 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification u/sec. 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. For fortifying this view, we make reference to the decision of the Hon'ble jurisdictional High Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., 262 ITR 146 which has been upheld by the Hon'ble Supreme Court reported in 305 ITR 227. 3. The Hon'ble Jurisdictional High Court in the case of CIT Vs. Ramesh Electric & Trading Company reported in 203 ITR 497 has held that the scope of section 254(2) is limited to rectification of mistake apparent from record itself and not rectification in error of judgment. The relevant observations of the Hon'ble High Court are as under: “The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself.” 4. 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 MA No.327/PUN/2022 M/s. Alfa Laval India Ltd. 3 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.” 5. 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 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 MA No.327/PUN/2022 M/s. Alfa Laval India Ltd. 4 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 x x x x x 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. x x x x x x 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.” 6. 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 view of the afore-stated discussion, we find no force in the Misc. Application filed by the Revenue which is rejected and dismissed. 7. In the result, Misc. application filed by the Revenue is dismissed. Order pronounced in open Court on 03 rd July, 2023. Sd/- sd/- (DIPAK P. RIPOTE) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 03 rd July, 2023 MA No.327/PUN/2022 M/s. Alfa Laval India Ltd. 5 vr/- Copy to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT concerned. 5. The DR, ITAT, “B” Bench Pune. 6. Guard File. By Order // TRUE COPY // Senior Private Secretary ITAT, Pune.