Commissioner Of Income Tax Ii v. Kirtibhai A Patel & 1

C/SCA/17077/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 17077 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH – sd/-andHONOURABLE MR.JUSTICE R.P.DHOLARIA - sd/- =============================================1.Whether Reporters of Local Papers may be NOallowed to see the judgment ?2.To be referred to the Reporter or not ?NO3.Whether their Lordships wish to see the fair copy NOof the judgment ?4.Whether this case involves a substantial question NOof law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5.Whether it is to be circulated to the civil judge ?NO ============================================= COMMISSIONER OF INCOME TAX II....Petitioner(s)VersusKIRTIBHAI A PATEL & 1....Respondent(s) ============================================= Appearance: MRS MAUNA BHATT, ADVOCATE for the Petitioner(s) No. 1MR SP BHATT, ADVOCATE for the Respondent(s) No. 1NOTICE SERVED BY DS for the Respondent(s) No. 2=============================================CORAM: HONOURABLE MR.JUSTICE M.R. SHAH andHONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 09/12/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0.By way of this petition under Article under Article 226 of the Constitution of India, the petitioner-Commissioner of Income Tax- II has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 27.5.2013 passed by the learned Income Tax Appellate Tribunal (hereinafter referred to as the “ITAT”) passed in Miscellaneous Application No.221/AHD/2012 in ITA No.549/AHD/ 2012, by which, the learned Tribunal has directed the petitioner herein-Commissioner of Income Tax-II to consider the case afresh including issue of condonation of delay and after giving proper opportunity of hearing to the assessee passed the necessary orders. 2.0.At the outset, it is required to be noted that being aggrieved and dissatisfied with the order passed by the petitioner-Commissioner of Income Tax- II passed under Section 119(2)(b) of the Income Tax Act (hereinafter referred to as the “Act”), the respondent herein preferred appeal before the learned ITAT being ITA No.549/AHD/ 2012 and by order dated 15.5.2012 the learned ITAT dismissed / disposed of the said appeal as not maintainable by observing that order passed under Section 119(2)(b) of the Act is an administrative order which is not appealable before the ITAT. 3.0.Subsequently in the said appeal which was held to be not maintainable, the respondent herein -original appellant preferred rectification being MA No.221/AHD/2012 and by impugned judgment and order dated 27.5.2013, the learned Tribunal has directed the Commissioner to consider the case afresh including issue of condonation of delay and after giving proper opportunity of hearing to the assessee passed the necessary orders. 4.0.Identical question came to be considered by this Court in Special Civil Application No.16524 of 2013 and the similar order passed by the learned ITAT has been quashed and set aside by this Court. By detailed judgment and order, this Court has held that when the appeal came to be dismissed as not maintainable, in such an appeal which was held to be not maintainable, rectification application is not maintainable. It is also held that by such an order the learned ITAT has virtually nullified its earlier order dated 15.5.2012 passed in ITA No.549/AHD/ 2012, which is held to be not maintainable and therefore, impugned order is not sustainable. 5.0.That this Court while quashing and setting aside the similar order has observed and held as under: 4.0.Identical question came to be considered by this Court in Special Civil Application No.16524 of 2013 and the similar order passed by the learned ITAT has been quashed and set aside by this Court. By detailed judgment and order, this Court has held that when the appeal came to be dismissed as not maintainable, in such an appeal which was held to be not maintainable, rectification application is not maintainable. It is also held that by such an order the learned ITAT has virtually nullified its earlier order dated 15.5.2012 passed in ITA No.549/AHD/ 2012, which is held to be not maintainable and therefore, impugned order is not sustainable. 5.0.That this Court while quashing and setting aside the similar order has observed and held as under: [5.5] As stated hereinabove, as such the learned Tribunal dismissed the appeal as not maintainable and as such rightly held that the appeal was not maintainable. Once the appeal itself was held to be not maintainable, it is not appreciable how the rectification application in an appeal which was held to be not maintainable, can be said to be maintainable. Under the circumstances, as such the rectification application in the appeal which was held not maintainable, ought not to have been entertained by the learned Tribunal, unless in a rectification application it was submitted that the learned Tribunal has committed an error in holding that the appeal is not maintainable and the learned Tribunal takes the view that the appeal was maintainable. In the present case, that is not so. Neither there was any contention that the appeal was maintainable against the order passed by the Commissioner nor infact there is any finding given by the learned Tribunal in the impugned order that the appeal is held maintainable. Under the circumstances, as such the order passed by the learned Tribunal in rectification application/miscellaneous application is wholly without jurisdiction, as there cannot be any rectification/miscellaneous application in an appeal which was not maintainable before the Tribunal. [5.6] Even otherwise the impugned order cannot be sustained and it suffers from serious legal defect. As stated hereinabove, if in the original order, Tribunal was of the opinion that the order passed by the Commissioner was not appealable, in exercise of rectification powers the Tribunal simply could not have given directions to the Commissioner to pass fresh order on the respondent’s application. As such by passing the impugned order in the rectification application, the Tribunal has nullified the original order of the Commissioner and directed him to pass a fresh order after hearing the respondent. When the Tribunal was of the opinion that appeal was not maintainable, there was no question of giving such a direction more particularly in the order on application for rectification, the Tribunal did not come to a different conclusion.” 6.0.For the reasons stated in the judgment and order passed in Special Civil Application No.16524 of 2013, the impugned order passed by the learned Tribunal passed in MA No.221/AHD/2012 cannot be sustained and deserves to be quashed and set aside. Rule is made absolute to the aforesaid extent. sd/-(M.R.SHAH, J.) Kaushik sd/-(R.P.DHOLARIA,J.)