Versussonata Software Ltd v. Wp-100-2020.Doc

Tandle IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 100 OF 2020 Pr. Commissioner Of Income Tax-8, Mumbai VersusSonata Software Ltd. … Petitioner. … Respondent. . . . . . . Mr. Suresh Kumar for the Petitioner.Mr. A. K. Jasani for the Respondent. . . . . . . CORAM : K. R. SHRIRAM AND N. J. JAMADAR, JJ.DATE : 10[th] JANUARY, 2022(THROUGH VIDEO CONFERENCING) P. C.: 1.Petitioner is impugning an order dated 5[th] July 2019 passedby the Income Tax Appellate Tribunal “I” Bench, Mumbai (for short,‘ITAT’) by which the ITAT refused to entertain the MiscellaneousApplication No.46/Mum/2019 that was filed by Petitioner. As could beseen from the very first paragraph of the impugned order, Petitioner waspraying to ITAT to recall the order passed by ITAT on 20[th] February 2015.2.The Apex Court in a recent matter of Commissioner ofIncome tax (IT-4), Mumbai Vs. Reliance Telecom Limited[1] held that, thepowers of ITAT under Section 254(2) of the Income Tax Act, 1961 are onlyto rectify and/or correct any mistake apparent from the record. If theorder passed by the ITAT was erroneous on merits, the remedy available to1(2021) 133 taxmann.com 41 (SC) the party was to prefer an appeal before the High Court. The Apex Courtfurther held that, the order passed by the ITAT recalling its earlier order isbeyond the scope and ambit of the powers of the Appellate Tribunalconferred under Section 254 (2) of the Act. Paragraph Nos. 3.2, 4 and 6 of Reliance Telecom Limited (Supra) reads as under : “3.2. Having gone through both the orders passed by the ITAT, weare of the opinion that the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is beyond the scopeand ambit of the powers under section 254(2) of the Act. Whileallowing the application under section 254(2) of the Act andrecalling its earlier order dated 6-9-2013, it appears that the ITAThas re-heard the entire appeal on merits as if the ITAT was decidingthe appeal against the order passed by the C.I.T. In exercise ofpowers under section 254(2) of the Act, the Appellate Tribunal mayamend any order passed by it under sub-section (1) of Section 254 ofthe Act with a view to rectifying any mistake apparent from therecord only. Therefore, the powers under section 254(2) of the Actare akin to Order XLVII Rule 1 CPC. While considering theapplication under section 254(2) of the Act, the Appellate Tribunal isnot required to re-visit its earlier order and to go into detail onmerits. The powers under section 254(2) of the Act are only torectify/correct any mistake apparent from the record.” 4. In the present case, a detailed order was passed by the ITAT whenit passed an order on 6-9-2013, by which the ITAT held in favour ofthe Revenue. Therefore, the said order could not have been recalledby the Appellate Tribunal in exercise of powers under section 254(2)of the Act. If the Assessee was of the opinion that the order passed bythe ITAT was erroneous, either on facts or in law, in that case, theonly remedy available to the Assessee was to prefer the appealbefore the High Court, which as such was already filed by theAssessee before the High Court, which the Assessee withdrew afterthe order passed by the ITAT dated 18-11-2016 recalling its earlierorder dated 6-9-2013. Therefore, as such, the order passed by theITAT recalling its earlier order dated 6-9-2013 which has beenpassed in exercise of powers under section 254(2) of the Act isbeyond the scope and ambit of the powers of the Appellate Tribunalconferred under section 254 (2) of the Act. Therefore, the orderpassed by the ITAT dated 18-11-2016 recalling its earlier orderdated 6-9-2013 is unsustainable, which ought to have been set asideby the High Court. 6. None of the aforesaid grounds are tenable in law. Merely becausethe Revenue might have in detail gone into the merits of the casebefore the ITAT and merely because the parties might have filed 3. 6. None of the aforesaid grounds are tenable in law. Merely becausethe Revenue might have in detail gone into the merits of the casebefore the ITAT and merely because the parties might have filed 3. Digitally signedby MANOJ RMANOJ RTANDALETANDALEDate:2022.01.1117:30:13 +0530 detailed submissions, it does not confer jurisdiction upon the ITAT topass the order de hors Section 254(2) of the Act. As observedhereinabove, the powers under section 254(2) of the Act are only tocorrect and/or rectify the mistake apparent from the record and notbeyond that.” Petition therefore dismissed. (N. J. JAMADAR, J.) (K. R. SHRIRAM, J.)