Itxa/510/2012 Of The Commissioner Of Income Tax - Central-Iii v. Mirc Electronics Ltd

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.510 OF 2012 The Commissioner of Income Tax, Central III, Mumbai ..Appellant. V/s. MIRC Electronics Ltd...Respondent. Mr.Abhay Ahuja for the appellant. Mr.P.J.Pardiwalla, Senior Advocate i/b. Mr.A.K.Jasani for the respondent. CORAM : S.C.DHARMADHIKARI AND A.K. MENON, JJ. DATED : 28TH AUGUST, 2014 P.C. :- 1. This appeal under section 260A of the Income Tax Act, 1961 is filed on 10[th] April, 2012. Office objections have been removed and it is numbered on 20[th] July, 2012. 2.This appeal impugns the order dated 16[th] November, 2011 passed by the Income Tax Appellate Tribunal in miscellaneous application being M.A.No.209/Mum/2011. That miscellaneous application was preferred by the respondent-assessee invoking the provisions of section 254(2) of the Income Tax Act, 1961 (the I.T. Act' for short). The assessee submitted that the original order passed for the assessment year 1997-98 in ITA No.4017/Mum/01 dated 25[th ]September, 2007 requires modification / variation / amendment as there is a mistake or an error apparent on the face of the record. 3.On the said application, which was contested by the revenue, the Tribunal recalled its original order partially to the extent incorporated in para 5 of the impugned order. 4.When this appeal was sought to be argued before us by Mr.Ahuja, we invited his attention to the legal provisions which have been invoked. We asked whether the order on the rectification application is traceable to section 254(1) of the I.T. Act or the same is passed under section 254(2) of the I.T. Act. Mr.Ahuja would maintain that the order under challenge is an appealable order. He submits that this order is passed in the course of an appeal, may be on an application filed as miscellaneous application and invoking the Tribunal's power under section 254(2) of the I.T. Act. The effect is that the Tribunal has amended its original order. To this amendment the law laid down by this Court in the case of Chem Amit V/s. Assistant Commissioner of Income Tax reported in 272 ITR 397 decided on 23[rd] November, 2004 in Income Tax Appeal No.702 of 2003 would not apply. In that behalf, the conclusion in para 7 of the judgment Division Bench has been relied upon. 5.Upon reading the impugned order and the application on which it was made and para 7 of the judgment of the Division Bench of this Court in Chem Amit (supra), we are of the opinion that there is a fundamental error on the part of the revenue in submitting that the order under challenge is a consequential one and, therefore, appealable. The clarification given in para 7 must be read in its enterity. Once a party has challenged the order of the Tribunal on an application for rectification, the appeal under section 260A of the I.T. Act is not maintainable, is what is concluded and held by the Division Bench. In the present case, we find that the Tribunal has allowed the miscellaneous application dated 25[th] March, 2011. That was an application by the respondent-assessee. The Tribunal has recalled its original order for a de novo consideration of the issue of depreciation and partially restored the appeal to its file. We do not find, therefore, that the present appeal can be entertained. The present appeal cannot be said to be challenging the order in appeal passed by the Appellate Tribunal. itxa510-12 6.In such circumstances, this appeal is dismissed as not maintainable. However, we clarify that all remedies other than invocation of section 260A of the Income Tax Act, 1961 can be availed of by the revenue to challenge the impugned order. We keep such remedies and contentions of both the sides therein open. No costs. (A.K. MENON, J.) (S.C.DHARMADHIKARI, J.)