TMI Blog2014 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... . Bhatt. JUDGMENT:- PER : M.R Shah As common question of law and facts arise in this group of petitions, they are disposed of by this common judgment and order. 2. In all these petitions under Articles 226 227 of the Constitution of India, the petitioner- Commissioner of Income Tax-II, Vadodara has challenged the impugned common judgment and order passed by the learned Income Tax Appellate Tribunal (hereinafter referred to as the ITAT ) dated 31.5.2013 passed in ITA No.188/AHD/2012 to 191/AHD/2012, by which, the learned ITAT has directed the Commissioner of Income Tax to consider the case of the respondents herein-respective assessee afresh including the issue of condonation of delay, after giving proper opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing impugned order and directing the Commissioner to consider the case of the assessee afresh. It is submitted that the learned Tribunal has materially erred in relying upon/considering/applying the order passed by the Division Bench of this Court in Special Civil Application No.8003 of 2013. 4.1 It is further submitted by Ms. Mauna Bhatt, learned advocate for the petitioner -revenue that as such against the order passed by the Commissioner passed under Section 119(2)(b) of the I.T. Act appeal before the learned ITAT is not maintainable as the orders passed by the Commissioner is an administrative and non appealable order. It is submitted that as such consistently the learned ITAT has held that order passed by the Commissioner passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Tribunal while exercising the appellate jurisdiction. It is submitted that once the appeal is not maintainable against the order passed by the Commissioner under Section 119(2)(b) of the I.T. Act, thereafter it is not open for the Tribunal to pass any order on merits. 5. Though, served nobody appears on behalf of the respondents. 6. Heard Ms. Mauna Bhatt, learned advocate for petitioner-revenue. At the outset, it is required to be noted that what was challenged before the learned ITAT was the order passed by Commissioner passed under Section 119(2)(b) of the Act. It is submitted that consistently the Appellate Tribunal has held that the order passed by the Commissioner passed under Section 119(2)(b) of the I.T. Act is an adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Division Bench of this Court in Special Civil Application No.8003 of 2013 and considering the same, we are of the considered opinion that learned Appellate Tribunal has materially erred in passing the impugned common judgment and order relying upon the order passed by the Division Bench of this Court passed in Special Civil Application No.8003 of 2013. In the case before the Division Bench, the learned Appellate Tribunal initially dismissed the appeal which was preferred against the order passed by the Commissioner passed under Section 119(2)(b) of the I.T. Act holding that the said order is an administrative and non appealable order. Despite the above, in a rectification application, learned Tribunal issued similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the learned Tribunal. Thus, it can be said that in exercise of powers under Article 226 of the Constitution of India the Division Bench thought it fit not to interfere with the order passed by the learned Tribunal, though the Division Bench observed that the order passed by the Tribunal suffered from serious legal defect. The order passed by the Division Bench in Special Civil Application No. 8003 of 2013 cannot be said to be a precedent and as such no law has been laid down by the Division Bench in the aforesaid decision. By aforesaid decision in Special Civil Application No.8003 of 2013 the Division Bench has not passed an order and/or held that though the appeal before the Appellate Tribunal against the order passed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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