The Income Tax Officer(Exemptions), Jalandhar V. The St. Joseph's Convent School, Jalandhar

MA 39/ASR/2019

AI Insights

The case involves the Income Tax Department (revenue) filing Miscellaneous Applications against St. Joseph Convent School, challenging a previous ITAT order. The revenue argued that the ITAT had not considered a relevant order from the Hon'ble High Court, which they claimed was a mistake apparent from the record under section 254(2) of the Income Tax Act, 1961. The ITAT, however, found no such mistake in its earlier order and dismissed the MAs, emphasizing that the powers under section 254(2) are limited to correcting mistakes apparent from the record and do not extend to recalling or revisiting the merits of the case as decided in the original order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115195 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 9 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-07-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-07-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 14-10-2019
• Other Referred Cases: CIT vs Smt. Aruna Luthra, CIT(IT-4) Mumbai vs Reliance Telecom Ltd.
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER ANDSH. ANIKESH BANERJEE, JUDICIAL MEMBER M.A. Nos.38 & 39/Asr/2019 (In I.T.A.Nos. 624 & 625/Asr/2017) A.Ys. 2009-10 & 2010-11 ITO- (Exemptions), Jalandhar. (Appellant) Vs. St. Joseph Convent School, Phagwara, H.O. Bishop House, Civil Lines, Jalandhar. [PAN: AACTS9035M] (Respondent) Appellant by Sh. S.M. Surendranath, Sr.DR Respondent by Sh. Gunjit Singh Syal, Adv. Date of Hearing 13.07.2023 Date of Pronouncement 18.07.2023 ORDER Per Anikesh Banerjee, JM: The instant miscellaneous applications (in brevity MA) were filed by revenue under section 254(2) of the Income Tax Act 1961 (in brevity the Act) against the common order of the ITAT, Amritsar Bench bearing ITA No. 624/Asr/2017 and 625/Asr/2017, related to A.Y. 2009-10& AY 2010-11 respectively, date of pronouncement 11/03/2019. M.A. Nos.38 & 39/Asr/2019 (In I.T.A.Nos. 624 & 625/Asr/2017) 2 2. The issue was pointed out related to filing of application u/s 254(2) is time barred. The date of pronouncement of order was 11.03.2019 and the due date for filing the MA u/s 254(2) was 30.09.2019. But the MA was filed on 15.10.2019. Considering section 254(2), the MA should be filed within six months from the end of the month in which the order was passed. The relevant part of section 254(2) is extracted as follows: - “254 (2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer :” The revenue has not filed any application for condonation of delay related to MA. 3. The ld DR vehemently argued and prayed to consider the limitation. There is only 15 days delay. The ld AR has accepted the delay of revenue. So, the delay is condoned. 4. The ld. DR argued and placed that the order of Hon’ble jurisdictional High Court was not considered by bench which is squarely related in assessee’s case. The submission of the revenue is reproduce as below: M.A. Nos.38 & 39/Asr/2019 (In I.T.A.Nos. 624 & 625/Asr/2017) 3 “8. In view of the observations of the Hon’ble High Court in its order dated 14/11/2011 in writ petition No. 20972 of 2011 and Chief Commissioner of Income Tax, Ludhiana order dated 27/09/2011 as mentioned above, a mistake of law apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961 has crept in the order of the Hon’ble ITAT in ITA No. 624(Asr)/2017 dated 11/03/2019. It was held by the Hon’ble Punjab 86 Haryana High Court in the case of CIT vs Smt. ArunaLuthra in ITA No. 2 of 2000 that proceedings for rectification of an order can be initiated on the basis of an order passed by the jurisdictional High Court or the Supreme Court subsequent to the order passed by the authority under the Act. 9. You are, therefore, requested to accept this Miscellaneous Application of the Revenue and appellate order dated 11/03/2019 may kindly be rectified by passing an appropriate order.” 5. The ld AR argued and fully relied on the order of ITAT. 6. We heard the rival submission and relied on the documents available in the record. The revenue was unable to point out any mistake apparent from the record of the order of ITAT-Amritsar Bench. The cognizance of taking the order of Higher judicial is debatable issue before the bench in this moment when the bench is adjudicating the MA. The issue of recalling the own order of the ITAT is well M.A. Nos.38 & 39/Asr/2019 (In I.T.A.Nos. 624 & 625/Asr/2017) 4 delt by the Hon’ble Apex Court. We respectfully relied on the order of Hon’ble Apex Court, CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC). The observation is extracted as below: - “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 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 High Court, but later on the Assessee withdrew the same in the instant case.” M.A. Nos.38 & 39/Asr/2019 (In I.T.A.Nos. 624 & 625/Asr/2017) 5 The recalling the observation of a speaking order of ITAT is beyond the jurisdiction of Bench. So, the MAs of the revenue are dismissed. 7. In the result, both the Miscellaneous Applications of the revenue bearing M.A. No. 38 & 39/Asr/2019 are dismissed. Order pronounced in the open court on 18 .07.2023 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order