Versusm/S. Sesa Goa Ltd v. Bhadang, Jj., J

IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.44 OF 2016 THE PR. COMMISSIONER OF INCOME TAX, PANAJI. VersusM/S. SESA GOA LTD., ... Appellant ... Respondent Mr. Asha A. Dessai, Advocate for the appellant. Mr. Pardiwala, Senior Advocate with Mr. R. G. Ramani and Mr. SachitJolly, Advocates for the respondent. Coram :- SMT R. P. SONDURBALDOTA & C. V. BHADANG, JJ., J. thDate :- 7 December, 2016 P.C. This appeal preferred by the Commissioner of Income Taxchallenges the order dated 7[th] January, 2015, by which the Income TaxAppellate Tribunal, Panaji, Goa, dismissed the application, filed by theappellant under Section 254(2) of the Income Tax Act (I. T. Act, forshort), for rectification of the order dated 8[th] March, 2013, passed by theTribunal. The application was made on the ground that subsequent tothe order of Tribunal, a survey under Section 133A of the I. T. Act, wasconducted on 20[th] March, 2014 and it was noticed that the respondentassessee has suppressed material facts as to its eligibility for Section 10B deductions. 2. Mr. Pardiwala, the learned Senior Counsel appearing for therespondent has raised a preliminary objection to the appeal, submittingthat the present appeal, as filed under Section 260A of the I. T. Act, isnot maintainable. It is his submission that an order passed by theTribunal under Section 254(2) of the I. T. Act cannot be said to be anorder on appeal by the Tribunal so as to make it amenable to Section260A of the I. T. Act. Section 260A of the I. T. Act provides for appealto the High Court only from an order passed in appeal by the Tribunal ifthe High Court is satisfied that the case involves substantial question oflaw. Mr. Pardiwala submits that the question of maintainability of suchappeals is already considered by the Division Bench of our High Courtin CHEM AMIT VS. ACIT; reported in 272 ITR 397. The relevantobservations therein read as under : “However, in section 260A, the Legislature has notprovided an appeal to the High Court from every orderpassed under section 254 but has confined it to the orderpassed in appeal by the Appellate Tribunal. This is madeclear by the use of the expression, “an appeal shall lie tothe High Court from every order passed in appeal by theAppellate Tribunal”. If the Legislature intended toprovide an appeal to the High Court from the order 3. passed by the Appellate Tribunal on the application forrectification under Section 254(2), the Legislature wouldnot have used the expression in section 260A that anappeal shall lie to the High Court from every orderpassed in appeal by the Appellate Tribunal, but insteadused the expression as is used in section 256 that anappeal shall lie to the High Court from every orderpassed under section 254. The expression, “an appealshall lie to the High Court from every order passed inappeal by the Appellate Tribunal” in section 260A cannotbe equated with the expression, “an appeal shall lie to theHigh Court from every order passed under Section254.”” Ms. Dessai, the learned Counsel appearing for the appellant, however, seeks to justify the maintainability of the appeal, by placingreliance upon the decision of Single Judge of Karnataka High Court inDy. CIT V. H. V. Shantharam, reported in (2003) 260 ITR 156(KARN). The Karnataka High Court, by the decision cited, dismissedthe petition under Articles 226 and 227 of the Constitution of India, filedby the assessee, to challenge the order granting the application filedunder Section 254(2) of the I. T. Act, on the ground that there is analternate remedy of appeal provided under Section 260A of the I. T. Act.The decision relied upon by Ms. Dessai, can be distinguished on facts. TXA44/16 Ms. Dessai, the learned Counsel appearing for the appellant, however, seeks to justify the maintainability of the appeal, by placingreliance upon the decision of Single Judge of Karnataka High Court inDy. CIT V. H. V. Shantharam, reported in (2003) 260 ITR 156(KARN). The Karnataka High Court, by the decision cited, dismissedthe petition under Articles 226 and 227 of the Constitution of India, filedby the assessee, to challenge the order granting the application filedunder Section 254(2) of the I. T. Act, on the ground that there is analternate remedy of appeal provided under Section 260A of the I. T. Act.The decision relied upon by Ms. Dessai, can be distinguished on facts. TXA44/16 The order impugned before the Karnataka High Court, was an orderallowing an application for rectification, whereas in the case on hand, theapplication is rejected. In any case, we are in respectful agreement withthe direct decision of our High Court in Chem Amit (supra), relied uponby Mr. Pardiwala and hold that the present appeal, as filed under Section260A of the I. T. Act, is not maintainable. The same is dismissed inlimine. SMA C. V. BHADANG, J. SMT R. P. SONDURBALDOTA