Asn v. G. S. Kulkarni, Jj

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1945 OF 2012WITHWRIT PETITION NO.1953 OF 2012WITHWRIT PETITION NO.1954 OF 2012WITH WRIT PETITION NO.1955 OF 2012 M/s. Sunil Hotels Private Limited.….Petitioner. VS. The Income Tax Appellate Tribunaland others.….Respondents. Mr. Arun Sathe i/by Aarti Sathe for the Petitioner.Mr.Arvind Pinto for the Respondent. CORAM : M. S. SANKLECHA AND G. S. KULKARNI, JJ. DATE : O9 JUNE 2014 PC: In these petitions under Article 226 of the Constitution of India the petitioner has assailed the order dated 21 March 2012 passed by the Income Tax Appellate Tribunal (Tribunal) on the petitioner's Misc. Application for rectification of order dated 22 April 2008 under Section 254(2) of the Income Tax Act, 1961 (“the Act”). The order dated 22 April 2008 disposed of appeals for the assessment years 1998-99 to 2004-05. However, the petitioner by its Misc. Application sought rectification of the order dated 22 April 2008 of the Tribunal to the extent it related to assessment years 1998-99, 1999-2000, 2001-02 and 2003-04. ASN 2) The Tribunal in the impugned order records two issues on which rectification was sought of the order dated 22 April 2008 by the petitioner. (a)Non adjudication of the issue whether proceedings under Section 153A of the Act can be undertaken in cases where the returns of income have been processed under Section 143(1)(a) and no material was found during the course of search; and (b)The Tribunal has not considered and discussed following decision relied upon by the assessee i.e. Sharad Construction Co. vs. ACIT, ITA No.5839 to 5842/Mum./2007, order dated 22[nd] April 2008 and Manish Maheshwari vs. ACIT, (2007) 289 ITR 341 (SC). The impugned order holds that so far as the first issue is concerned, no submissions were advanced at the original hearing leading to order dated 22 April 2008. So far as the second issue is concerned, it was held that the decisions cited were referred to in the order but not discussed as the same were not found relevant. Besides, in any case, it was held that appeal on similar issue had been raised before the High Court in the petitioner's appeal under Section 260A of the Act. 3) Mr. Sathe, learned Senior Counsel appearing for the petitioner states that the petitioner had raised both the issues herein ASN above during the original proceedings leading to the order dated 22 April 2008 of the Tribunal. However, the same were not determined in the order dated 22 April 2008 Therefore, rectification of the order dated 22 April 2008 is a must before the petitioner could file an appeal under Section 260A of the Act on the above two issues. In support reliance was placed upon the decision of this Court in the matter of Commissioner of Income Tax vs. Tata Chemicals Ltd.256 ITR 295. Thus, the rectification application filed by the petitioner in respect of the order dated 22 April 2008 ought to have been allowed. 4)Mr. Pinto learned Counsel for the revenue repeats and reiterates the findings recorded in the impugned order dismissing the petition. 5)We find that this Court in the matter of Tata Chemicals (supra) has while dealing with the issue of appealable orders under Section 260A of the Act held as follows:- “The careful reading of the Section will show that the High Court can decide only that question which was raised but not determined by the Tribunal. Therefore, it was necessary that the question sought to be raised ought to have been raised before the Tribunal and then if it had not determined it, one can say that it has not been determined by the Tribunal and, therefore, the High Court should look into it.” 6)In view of the above observations, even if we accept the petitioner's contention that the two issues referred to herein above were raised by the petitioner and not considere 5)We find that this Court in the matter of Tata Chemicals (supra) has while dealing with the issue of appealable orders under Section 260A of the Act held as follows:- “The careful reading of the Section will show that the High Court can decide only that question which was raised but not determined by the Tribunal. Therefore, it was necessary that the question sought to be raised ought to have been raised before the Tribunal and then if it had not determined it, one can say that it has not been determined by the Tribunal and, therefore, the High Court should look into it.” 6)In view of the above observations, even if we accept the petitioner's contention that the two issues referred to herein above were raised by the petitioner and not considere 6) d by the Tribunal, it was open to the petitioner to raise these very issues in its appeal before this Court under Section 260A of the Act against the original order dated 22 April 2008. We find that the Tribunal has correctly observed that there was no mistake apparent in the order dated 22 April 2008 passed by the Tribunal warranting entertaining the miscellaneous application for rectification.issues in its appeal before this Court under Section 260A of the Act against the original order dated 22 April 2008. We find that the Tribunal has correctly observed that there was no mistake apparent in the order dated 22 April 2008 passed by the Tribunal warranting entertaining the miscellaneous application for rectification. 7)In view of the above, we find no merit in the above petitions. Accordingly, the petitions are dismissed. No order as to costs. (M.S. SANKLECHA, J.) (G. S. KULKARNI, J.)