Pr. Commissioner Of Income Tax v. Hindustan Unilever Limited165/166, Backbay Reclamation,Mumbai-400 020

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.220 OF 2022 Pr. Commissioner of Income Tax-1,Aayakar Bhavan, M.K.Road,Mumbai-400 020...Petitioner Versus Hindustan Unilever Limited165/166, Backbay Reclamation,Mumbai-400 020.PAN No.AAAH1004N...Respondent *** Mr. Suresh Kumar for the Petitioner. Mr. Nishit Thakkar a/w Mr. Rajesh Poojari and Ms. JasminAmalsadvala i/b Mulla & Mulla & Craigie Blunt & Caroe for theRespondent. *** CORAM : DHIRAJ SINGH THAKUR & VALMIKI SA MENEZES, JJ. DATE : 19 SEPTEMBER 2022***: O R D E R : (PER DHIRAJ SINGH THAKUR, J.) .The present Petition has been fled, challenging the Orderdated 16 October 2019 (relevant Assessment Year 2009-10)passed by the Income Tax Appellate Tribunal (“ITAT”), Mumbai,whereby the application fled by the Petitioner seeking rectifcationof an Order dated 28 December 2018 passed under Section 254(2)of the Income Tax Act, 1961 (“the Act”) has been dismissed on theground of maintainability. The ITAT held that the power to rectify amistake apparent on the face of the record under Section sub-section (2) of Section 254 is confned to an Order passed by it under Chittewan sub-section (1) of Section 254 of the Act. It was held that since theapplication for rectifcation fled by the assessee was against theOrder passed under Section 254(2), it was in principle notmaintainable. Reliance in this regard was placed upon thejudgments of Orissa High Court in the case of CIT Vs. President,ITAT[1] and Delhi High Court in the case of Mentha & Allied ProductsCompany Ltd Vs. ITAT.[2] 2It is noticed that ITAT vide the Order dated 5 January 2018,had partly allowed the appeal fled by the assesee on the questionrelating to the disallowance of provision for retirement beneft byrelying upon the appeal of the assessee for A.Ys. 1991-92 to 1997-98 and 2006-07. 3The revenue fled the miscellaneous application before theITAT bearing M.A. No.497/M/2018 under Section 254(2) of the Act,seeking rectifcation of the Order passed by ITAT and praying forremand of the matter to the Assessing Offcer as was done for theA.Y. 1991-92 in regard to the issue of the provision of retirementbeneft. Mr. Nishit Thakkar, learned Counsel for the Respondentsurged that the reason why the ITAT had not remanded the issue forconsideration to the Assessing Offcer was that for the A.Y. 1991-92,upon remand, the Assessing Offcer had held in favour of theassessee, which Order was upheld by the ITAT not only for A.Y.1991-92, but also upto the A.Ys. 1997-98 and 2006-07 and that thedepartment had not fled any appeal before this Court on the issueof ‘disallowance of provision for retirement beneftt. It is, therefore,stated that having not challenged the Order passed by ITAT on the 1(1992) 196 ITR 838 (Ori) 2 (2000) 244 ITR 470 (Del.) said issue for the aforesaid A.Ys., going into the question as towhether the second application for rectifcation fled by the revenuewould be maintainable or not, would be rendered totally academic.Learned Counsel for the Respondents, however, has not been able toconvince us, as to how the issue raised in the present Petition isultimately going to be relevant especially when the revenue hadaccepted the judgment of the ITAT for the A.Ys. 1991-92 to 1997-98and 2006-07. 4In our opinion, the determination of the issue in thebackground of the present case is totally academic and need not tobe gone into and is left open to be decided in an appropriate case.The Petition is disposed of accordingly. (VALMIKI SA MENEZES, J.) (DHIRAJ SINGH THAKUR, J.) RAJESHDigitally signed byRAJESH VASANTVASANTCHITTEWANDate: 2022.09.22 17:22:38CHITTEWAN+0530