The Income Tax Officer, Abohar V. M/s Superfine Agro Industries, Abohar

MA 9/ASR/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4938 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-03-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 21-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER M. A. No. 09/Asr/2018 (Arising out of MA No. 17/Asr/2017) Assessment Year: 2009-10 The Income Tax Officer, Ward-II(3), Abohar Vs. M/s Superfine Agro Industries, Burj Mohar Road, Abohar (Appellant) (Respondent) Appellant by : Sh. Rohit Kapoor, C.A. Respondent by: Sh. S. M. Surendranath, Sr. DR Date of Hearing: 04.03.2022 Date of Pronouncement: 25.03.2022 ORDER Per Anikesh Banerjee, JM: The instant miscellaneous application was filed by the Revenue against the M.A. No. 17/Asr/2017 for AY 2009-10 where the said miscellaneous application filed u/s 254(2) of the Income Tax Act, 1961 by the department against the order of the ITAT dated 10.03.2016 in ITA No. 203/Asr/2014 for AY 2009-10. 2. The said miscellaneous application no. 17/Asr/2017 was dismissed by the bench on a ground that the miscellaneous application was beyond the six months after completion of ITAT order dated 10.03.2016 related to Appellate Order No. 203/Asr/2014. The said MA No. 17/Asr/2017 was filed by the Revenue in the month of January, 2017 which is beyond the period of six months filed by the Revenue is not maintainable by the ITAT, Amritsar Bench. MA No. 09/Asr/2018 ITO v. Superfine Agro Industries 2 3. The miscellaneous petition bearing no. 09/Asr/2018 is placed before us for rectify the defect of first miscellaneous application. 4. The counsel of the assessee appeared and mentioned that the order u/s 254(2) is not an order so that cannot be rectified further u/s 254(2) for mistake apparent from the record. Also, he mentioned that the petition u/s 254(2) cannot be restored or rectify further through section 254(2). When the order was passed u/s 254(1) there no further rectification application is maintainable. 5. The Ld. counsel of the assessee filed the following judgments in his favour which are as follows:- (i) CIT v. President, Income Tax Appellate Tribunal 196 ITR 0838 Orissa-HC (ii) Dr. S. Panneerselvam v. Asstt. CIT 319 ITR 135 MAD-HC (iii) Sh. Padam Prakash HUF v. Income Tax Officer 9 taxmann.com 178 Del-Trib. (SB) (iv) PCIT v. Alpana Bhartia 106 taxmann.com 397 6. The Ld. DR placed the judgments of District Central Cooperative Bank Ltd. v. Union of India WP No. 4144/2017 date of order 19.07.2017 passed by the Hon’ble High Court of Madhya Pradesh at Indore Bench Division. The said judgment is only relate to first rectification which is related to limitation for filing the same. As per the order of Hon’able Court, no appeal should be rejected on the basis of the limitation but it should be accepted on merit. But this is related to the first miscellaneous petition. 7. We have heard both the parties. The order of Hon’ble Madhya Pradesh High Court is only related to first order u/s 254(2). The ITAT has no power to rectify the order passed u/s 254(2) of the Act of rectification in second time related to order MA No. 09/Asr/2018 ITO v. Superfine Agro Industries 3 passed u/s 254(1) of the Act. The same view was taken by the ITAT Ahemdabad Bench in the case of Smt ZUBUBEN Prabhatbhai Desai & othrs vs ITO WD- 5(2),Ahamedabad order dated 20/07/2021, 2021(7) TMI 803-ITAT Ahmedabad. 8. The statutory provision is that the order passed u/s 254(1) of the Act can not be rectified by Section 254(2) of the Act. Accordingly the miscellaneous application bearing MA No. 09/Asr/2018 stands dismissed. 9. In the result, the miscellaneous application filed by the Revenue is dismissed. Order pronounced in the open court on 25 .03.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member Date: 25 .03.2022 *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order