Cenzer Industries Ltd v. The Income Tax Appellate Tribunaland Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1308 OF 2014WITH WRIT PETITION NO.1383 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 to challenge the order dated 11 October 2013. Amendment to carried out forthwith. Re-verification is dispensed with. 2)In these two petitions the challenge is to the order dated 11 October 2013 passed by the ITAT (Tribunal) dismissing the petitioner's Misc. Application under Section 254(2) of the Income Tax Act, 1961( “the Act”) seeking rectification of its order dated 29May 2009passed on merits in respect of the A.Y.1999-2000 and 2000-01. The impugned order was a common order dismissing the Misc. Application filed to rectify the order dated 29 May 2009 (A.Y. 1999-2000 and 2000-01) and dated 5 June 2009 (A.Y.1998-99) on the ground that the issue with regard to reopening notice being without jurisdiction under Section- 147/148 of the Act being urged in the application was not pressed during the hearing before the Tribunal. In that view of the matter there was no error apparent on record. 2)The learned Counsel for the petitioner submits that the issues are identical in all the three years and even though the petitioner as applicant before the Tribunal had not given up its claim, the Tribunal in its orders dated 29 May 2009 and 5June 2009 incorrectly records that the petitioner was not pressing the issue. 3)However, Mr. Mohanty, learned Counsel appearing for the revenue states that so far as these two assessment years are concerned i.e. 1999-2000 and 2000-01 the Tribunal in its order dated 29 May 2009 had specifically dealt with the assessee's grievance that reopening notice under section 148 of the Act is without jurisdiction and negatived the petitioner's submission in that regard. Therefore, the Misc. Application as filed by the petitioner before the Tribunal proceeds on incorrect basis that the issue with regard to limitation was dismissed only on the ground of petitioner not pressing the issue. In fact, the Tribunal has dealt with the issue and dismissed the appeal on the above ground on merits. 4)It appears that the impugned order of the Tribunal dated 11 October 2013 which was passed for A.Y. 1998-99, 1999-2000 and 2000-01 was passed on the basis that both the orders dated 29 May 2009 and 5 June 2009 had disposed of the ground of reopening of assessment without jurisdiction as not being pressed by the petitioner. This must have so happened as the Tribunal was informed so by the parties appearing before it. We find that this is not so as the application filed by the petitioner pointed out by the learned Counsel for the Revenue. Thus, the Misc. Application for recalling orders under Section 254(2) of the Act itself is without any basis. 5)Accordingly, we see no reason to interfere with the order of the Tribunal. 6)Both the petitions are dismissed. No order as to costs. (G. S. KULKARNI, J.) (M.S. SANKLECHA, J.)