The Commissioner Of Income Tax – Ii v. Laxmi Oil Engines Private Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.7352 OF 2012 The Commissioner of Income Tax – II..PetitionerVersus Laxmi Oil Engines Private Limited..Respondent. Mr.N.N. Singh for the petitioner.Mr.M.K. Kulkarni for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. P.C. : DATE : 22[nd] October 2012 1.Rule. Rule is made returnable forthwith. By consent of both the parties, the writ petition is taken up for hearing and final disposal. 2.This writ petition is filed to challenge the order of the Income Tax Appellate Tribunal dated 28[th] October 2010 whereby on a Miscellaneous Application filed by the assessee the Income Tax Appellate Tribunal has recalled its earlier order dated 25[th] April 2008. 3.The assessment year involved herein is AY 2003-2004. In the assessment year in question, expenditure on account of commission claimed by the assessee was disallowed by invoking explanation to Section 37(1) of the Income Tax Act, 1961. The said disallowance was confirmed in appeal by aswp7352-12 the Commissioner of Income Tax (Appeals). On further appeal, the Income Tax Appellate Tribunal by its order dated 25[th] April 2008 confirmed the disallowance by following its decision in the case of the assessee for AY 2001-2002. Admittedly, the appeal filed by the assessee against the order of the Income Tax Appellate Tribunal for AY 2001-2002, being Income Tax Appeal No.1230 of 2008 has been dismissed by this Court on 24[th] February 2009. Thus, the disallowance of commission for AY 2001-2002 has attained finality. 4.When the order passed for Assessment Year 2001-2002 has attained finality, the Income Tax Appellate Tribunal by the impugned order dated 28[th] October 2010 could not have allowed the miscellaneous application and recall its order dated 25[th] April 2008 without even considering the order passed by this Court in Income Tax Appeal No.1230 of 2008 dated 24[th] February 2009. 5. In these circumstances, the impugned order dated 28[th] October 2010 passed by the Income Tax Appellate Tribunal on the Miscellaneous Application filed by the assessee is quashed and set aside and the matter is restored to the file of the Income Tax Appellate Tribunal for fresh decision on merits and in accordance with law. 6.Rule is made absolute in above terms with no order as to costs. (M.S. Sanklecha, J.)(J.P. Devadhar, J.)