DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE,2(4), MUMBAI V. PMT MACHINES LTD, PUNE

MA 340/MUM/2023

AI Insights

The case involves Miscellaneous applications filed by the revenue against the order of the Income Tax Appellate Tribunal which had remanded the assessment back to the file of the Assessing Officer (AO) for de-novo action in accordance with the law, considering the Resolution Plan approved by the NCLT. The revenue sought clarification on whether the Tribunal intended a de-novo assessment or another form of action, as the original order was not clear. The Tribunal dismissed the applications, stating that they do not have the jurisdiction to provide advisory opinions and that the applications did not point out any specific mistake in the original order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125448 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-07-2023
• Assessment Year: misc
• Appeal Filed On: 26-04-2023
• Laws Referred To: Income Tax Act, 1961, Insolvency and Bankruptcy Code 2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI BR BASKARAN, AM AND SHRI ABY T. VARKEY, JM MA. Nos. 340 & 341/Mum/2023 (Arising out of ITA. Nos.485 & 486/Mum/2022 (निर्धारण वर्ा / Assessment Years: 2016-17 & 2013-14) DCIT, Central Circle-2(4) Room No. 802, 8 th Floor, Old CGO Annexe, M. K. Road, Mumbai-400020. बिधम/ Vs. M/s. PMT Machines Ltd. PO. Box No.1102, Behind PEMC Building, Mumbai, Pune Road, Pimpri, Pune- 411018. स्थधयी लेखध सं./जीआइआर सं./PAN/GIR No. : AAACP4680L (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) सुनवाई की तारीख / Date of Hearing: 21/07/2023 घोषणा की तारीख /Date of Pronouncement: 22/08/2023 आदेश / O R D E R PER ABY T. VARKEY, JM: These are Miscellaneous applications preferred by revenue against the impugned order of this Tribunal dated 10.10.2022 in ITA. Nos.485 & 486/Mum/2022 for AY. 2016-17 and AY. 2013-14 respectively. 2. The revenue has raised the following issue as under: - “2. The present miscellaneous application is being filed in ITA. Nos. 486/Mum/2022 dated 10.10.2022 for AY. 2016-17 in the case of PMT Machines Limited Vs. DCIT Central Circle-2(4). 3. The Hon’ble ITAT has remanded the assessment back to the file to the AO with the following directions- ‘3. At the outset, the Ld. AR of the assessee brought to our notice that the Corporate Insolvency Resolution Process (CIRP) was initiated by the Ld. National Company law Tribunal (NCLT), Mumbai Bench, Court- III against the assessee company and by an order dated 22.10.2018 u/s 7 of the Insolvency and Bankruptcy Code 2016 (hereinafter referred to as “the Code”), Mr. Ram Ratan Kannongo was Assessee by: None Revenue by: Shri Ashok Kumar Ambastha MA. Nos. 340 & 341/Mum/2023 A.Y. 2016-17 & AY. 2013-14 M/s. PMT Machines Ltd 2 appointed as Interim Resolution Professional (RP). Later on, by order dated 03.06.2022 [I.A. No.1907 of 2021 in C.P. No.2469 of 2018, UCO Bank Vs. PMT Machines Ltd/assessee], the Ld. Tribunal (NCLT) has approved the Resolution Plan submitted by Ms. Monica Shah with effect from 03.06.2022. In the light of the order of the NCLT in the assessee’s case (supra) which is binding on the department (Revenue) also, we are of the opinion that there is no point in keeping these appeals of assessee pending before this Tribunal. Therefore, we set aside the impugned orders of the Ld. CIT(A) for both the assessment years before us and remand the relevant assessments back to the file of the AO to take appropriate action denovo in accordance to law after taking into consideration the Resolution Plan approved by the Ld. NCLT (supra)’. 4. It is seen that the Hon’ble ITAT has remanded the assessments back to the file of the AO for de-novo action in accordance with the law. However, the direction of the Hon’ble ITAT is not clear as to what this de-novo action should involve. It is not clear whether the Hon’ble ITAT has directed de-novo assessment or something else. Therefore, this AO is not able to give effect to the order of Hon’ble ITAT. 5. In view of the above, it is requested that the Hon’ble ITAT may issue clear and explicit directions in this case, so that necessary order giving effect can be passed by the AO” 3. From the application preferred before us, the prayer of the revenue is that the Tribunal may issue clear and explicit direction in respect of the impugned order (supra). In this regard, the power of the Tribunal u/s 254(2) of the Income Tax Act, 1961 (hereinafter “the Act”) is as under: - “254(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it MA. Nos. 340 & 341/Mum/2023 A.Y. 2016-17 & AY. 2013-14 M/s. PMT Machines Ltd 3 under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard : [ Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.] [(2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) [or sub-section (2)] of section 253 : [Provided that the Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceedings relating to an appeal filed under sub-section (1) of section 253 , for a period not exceeding one hundred and eighty days from the date of such order and the Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order: Provided further that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend MA. Nos. 340 & 341/Mum/2023 A.Y. 2016-17 & AY. 2013-14 M/s. PMT Machines Ltd 4 the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.” 4. From the application filed by the revenue, it is not discernable what is the mistake apparent on the face of the record. Without spelling out any mistake apparent on record, the application u/s 254(2) of the Act is not maintainable. However, the Ld. DR contents that AO is not able to understand whether the Tribunal has directed him to pass denovo assessment order or something else by setting aside the Ld. CIT(A)’s order for appropriate action in accordance to law. However, we are afraid, we don’t enjoy advisory jurisdiction, which either party can seek from professional/superior departmental officers. And therefore the miscellaneous application preferred by the Department is not maintainable as discussed, so dismissed. MA. Nos. 340 & 341/Mum/2023 A.Y. 2016-17 & AY. 2013-14 M/s. PMT Machines Ltd 5 5. In the result, Miscellaneous applications filed by the revenue are dismissed. Order pronounced in the open court on this 22/08/2023. Sd/- Sd/- (BR BASKARAN) (ABY T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER मुुंबई Mumbai; दिनाुंक Dated : 22/08/2023. Vijay Pal Singh, (Sr. PS) आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधयक िंजीकधर /(Dy./Asstt. Registrar) आयकर अिीलीय अनर्करण, मुुंबई / ITAT, Mumbai 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file.