Cenzer Industries Ltd v. The Income Tax Appellate Tribunal And Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1307 OF 2014 Cenzer Industries Ltd. ...Petitioner. vs.The Income tax Appellate Tribunaland ors....Respondents. Mr. Deepal Tralshawal i/by V.S.Hadade for the Petitioner.Mr. N.C.Mohanty for the Respondent. CORAM : M. S. SANKLECHA AND G.S. KULKARNI, JJ.DATE : 30 JULY 2014 DATE : PC: Leave to amend the prayer clause in the petition to challenge the order dated 11 October 2012. Amendment to be carried out forthwith. Re-verification is dispensed with. 2)By this petition under Article 226 of the Constitution of India the petitioner has challenged the order dated 11 October 2013 passed by the ITAT dismissing the Misc. Application for rectification under Section 254(2) of the Income Tax Act,1961 (“the Act”). By the Misc. Application the petitioner sought to rectify/recall the order dated 5 June 2009 passed by the ITAT in respect of the petitioner's appeal for A.Y. 1998-99 under the Act. ASN 3)The ITAT by the impugned order had rejected the application for rectification on the basis that the ground for rectification viz. The entire proceedings emanating from a reopening where u/s.148 of the Act is without jurisdiction was a ground specifically given up during the hearing of the appeal leading to order dated 5 June 2009. The ITAT in the impugned order records the fact that at the time of hearing of the appeal on 5 June 2009 the petitioner had specifically stated that above ground was not pressed. In the above view, the ITAT by the impugned order holds that there was no mistake apparent on record and the application was dismissed. 4)The grievance of the petitioner is that the notice for reopening itself is without jurisdiction and the ITAT ought to have sue moto considered and decided the same. In any case, it was the case of the petitioner that the order dated 5 June 2005 does not correctly record the facts in having recorded that the petitioner is not pressing its ground with regard to Section 148 notice being without jurisdiction. 5)We find that in this case, it was only on 5 February 2011 the petitioner filed Misc. Application to rectify the order dated 5 June 2009 of the ITAT. In its application the only reason for rectification by the ITAT was that it had not considered the issue regarding reopening of assessment. At that stage, i.e. on 5 February 2011 it was not the contention of the petitioner that the statement recorded by the ITAT in its order dated 5 June 2009 is factually incorrect. However, the petitioner filed another application for rectification on 21 March 2012 and for the first time urges that the finding of the ITAT in its order dated 5 June 2009 that ground related to invalid notice was not pressed, was not correct. Therefore, this seems to be a clear after thought as if the facts stated by the petitioner were correct they would have immediately moved the ITAT and have the facts corrected. In this case the motivation to file the Misc. Application for rectification/recall was the order of the ITAT dated 23 March 2010 which allowed the respondent-revenue Misc. Application and also dismissed the petitioner's appeal on merits for A.Y. 1998-99. dated 5 June 2009 that ground related to invalid notice was not pressed, was not correct. Therefore, this seems to be a clear after thought as if the facts stated by the petitioner were correct they would have immediately moved the ITAT and have the facts corrected. In this case the motivation to file the Misc. Application for rectification/recall was the order of the ITAT dated 23 March 2010 which allowed the respondent-revenue Misc. Application and also dismissed the petitioner's appeal on merits for A.Y. 1998-99. 6)In the present facts, we find no reason to interfere with the order of the ITAT particularly, having regard to the fact that the petitioner had at the time of hearing of the appeal withdrawn its challenge to the reopening of assessment under Section 147/148 of the Act. Once the appellant have withdrawn the challenge on a particular issue by not pressing it before the ITAT, it is as good as no appeal on that ground is before the ITAT for consideration. Moreover, it would be noticed that the order of the ITAT was passed on 5 June 2009 recorded the fact that the issue relating to reopening of assessment was not pressed by the applicant. The first Misc. Application was made by the petitioner only on 5 February 2011 did not raise the issue of facts not being properly recorded. This itself is indicative of the order dated 5 June 2009 by the Tribunal were correct reflection as to what had actually transpired. In the aforesaid circumstances, we find no reason to interfere with the order of the ITAT. ASN4/4WP-13077)Accordingly, the petition is dismissed with no order as to costs. (G. S. KULKARNI, J.) (M.S. SANKLECHA, J.)