M/s. Cummins Sales & Services (I),Ltd,(Formerly known as Cummins Diesels Sales & Service ltd,), Pune V. Deputy Commissioner of Income-tax, Circle -1(1), Pune

MA 392/PUN/2022

AI Insights

The case involves a Miscellaneous Application by M/s. Cummins Sales & Services (I) Ltd., seeking recall of an earlier Tribunal order. The application was based on the claim that the Tribunal had relied on certain judicial precedents not presented by either party, which the assessee argued violated the principles of natural justice and constituted a mistake apparent from the record. The Tribunal referenced a decision by the Hon'ble Bombay High Court in Inventure Growth & Securities Ltd. vs. ITAT, which clarified that not citing a judgment does not automatically warrant a remand or recall of the order. The Tribunal concluded that the assessee could seek remedies under the Income Tax Act, 1961, but the Tribunal itself could not recall the order as it had applied the law to the facts of the case as understood by the Tribunal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137081 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-05-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-05-2023
• Assessment Year: 2006-2007
• Appeal Filed On: 25-12-2022
• Other Referred Cases: Inventure Growth & Securities Ltd. vs. ITAT, 324 ITR 319 (Bom.)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. No.392/PUN/2022 (Arising out of ITA No.2121/PUN/2017) िनधाᭅरण वषᭅ / Assessment Year : 2006-07 M/s. Cummins Sales & Services (I) Ltd. (Formerly known as Cummins Diesels Sales & Services Ltd.), 35A/1/2, Erandwane, Pune- 411038. PAN : AAACC7262K Vs. DCIT, Circle-1(1), Pune. Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This present Miscellaneous Application is filed by the assessee seeking the recall of the order passed by this Tribunal in ITA No.2121/PUN/2017 for the assessment year 2006-07 dated 27.06.2022 on the ground that the Tribunal while reversing the order of the ld. CIT(A) had relied upon certain judicial precedents, Assessee by : Shri Ketan Ved Revenue by : Shri M. G. Jasnani Date of hearing : 19.05.2023 Date of pronouncement : 24.05.2023 MA No.392/PUN/2022 2 which were neither stated by the either party before the Tribunal, which amounts the violations of principles of natural justice and, therefore, constitute a mistake apparent from the record. He also placed reliance on the decision of the Hon’ble Bombay High Court in the case of Inventure Growth & Securities Ltd. vs. ITAT, 324 ITR 319 (Bom.). 2. We have carefully perused the Miscellaneous Petition and the submissions made during the course of hearing of the Miscellaneous Petition. We also perused the decision relied upon by the ld. AR in the case of Inventure Growth & Securities Ltd. (supra). We are of the considered opinion that it is not the authority for proposition that merely because the Tribunal had relied upon the judgements which were not stated by either party before it, give a rise to mistake apparent from record. In fact, the Hon’ble Jurisdictional High Court in the case of Inventure Growth & Securities Ltd. (supra) has taken contrary view vide para 8 of the said decision, which reads as under :- “8. It is in these circumstances that we are inclined to allow the Miscellaneous Application and to restore the appeal and the cross- objections for fresh consideration before the Tribunal. We clarify that it cannot be laid down as an inflexible proposition of law that an order of MA No.392/PUN/2022 3 remand on a Miscellaneous Application under section 254(2) would be warranted merely because the Tribunal has relied upon a judgment which was not cited by either party before it. In each case, it is for the Court to consider as to whether a prima facie or arguable distinction has been made and which should have been considered by the Tribunal. It is in this view of the matter that we had called upon Counsel appearing on behalf of the assessee to at least prima facie indicate before this Court the grounds on which the decision in Khandwala Finance Ltd.'s case (supra) was sought to be distinguished. If we were to be of the view that the decision in Khandwala Finance Ltd.'s case (supra) was squarely attracted to the facts of the present case, we may not have been inclined to remand the proceedings. An order of remand cannot be an exercise in futility. However, for the reasons which we have already indicated, we find prima facie that prejudice would be sustained by the petitioner by denying him an opportunity to deal with the distinguishing features in the case of Khandwala Finance Ltd. (supra).” 3. Therefore, we are of the considered opinion that if the assessee is aggrieved by the decision of the Tribunal, the assessee can avail remedy available under the provisions of the Income Tax Act, 1961, but, the Tribunal cannot recall the order which was passed after discussing the facts of the case, as well as applied the law, which according to the Tribunal, is applicable to the facts of the case in its view. It is a settled position of law that the appeal cannot be re- argued in the guise of seeking the rectification of the order of the Tribunal. Thus, we do not find any merit in the Miscellaneous Petition filed by the assessee, hence dismissed. MA No.392/PUN/2022 4 4. In the result, the Miscellaneous Application filed by the assessee stands dismissed. Order pronounced on this 24 th day of May, 2023. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 24 th May, 2023. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-1, Pune. 4. The Pr. CIT-1, Pune. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “A” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.