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2015 (4) TMI 980 - BOMBAY HIGH COURT

2015 (4) TMI 980 - BOMBAY HIGH COURT - [2015] 376 ITR 126 (Bom) - Rectification of mistake - powers of Tribunal u/s 254(2) - appeal against the order of tribunal pending before HC - Held that:- Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power en .....

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e higher Court of Appeal.

We can understand if the Tribunal had passed an order after considering the application made by the peritioner-assessee on its merits and in accordance with law. However, the refusal of the Tribunal to go ahead and reject the application only on the ground that the petitioner-assessee has invoked the appellate powers of higher Court cannot be sustained. That is contrary to the plain language of the two statutory provisions and which have been brought to our .....

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For the Petitioner : Dr K Shivram, Sr. Counsel, Mr Ajay R Singh & Ms Neelam jadhav For the Respondent : Mr Arvind Pinto ORDER P. C. Though the order passed by this Court on 10th November, 2014 directs that the Writ Petition No.2238 of 2014 filed by the petitioner-assessee and the Appeal being Income Tax Appeal No.1489 of 2013 be taken up together, what we find that the Writ Petition impugns the order dated 12th March, 2014 of the Income Tax Appellate Tribunal. 2. That order was passed on th .....

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ication and copy of which has been annexed to this Writ Petition paper book at page 119 to 127 requests the Tribunal to correct such errors. The ultimate prayer therein is that the order on 16th January, 2013 in the above Income Tax Appeal suffers from mistakes which are apparent and deserve to be rectified. 4. It is this application filed on 28th May, 2013 which was placed before the Tribunal. The Tribunal passed the impugned order which reads as under: "The assessee has moved an instant M .....

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al forum, even if pending admission. 3. On this ground, the instant MA is rejected. 4. We, therefore, reject the MA as filed." 5. We have heard Dr.Shivram, the learned Senior Counsel appearing on behalf of the petitioner in support of this Writ Petition, he invited our attention to section 264 of the Income Tax Act, 1961 and particularly subsection( 2) thereof. In his submission, the above view taken by the Tribunal is patently incorrect. He would submit that the power conferred in the Appe .....

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d as under:- "Section 254(1). The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer: Pr .....

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aving been invoked the Tribunal s power, cannot be exercised by the Tribunal. He would further submit that the understanding of the Tribunal of the legal provision is patently erroneous and perverse. There is nothing contrary to judicial propriety if the Tribunal exercised its power under subsection (2) of section 254 of the Income Tax Act. Dr. Shivram further assails the view of the Tribunal that it holds that the assessee in this case cannot pursue the remedy simultaneously before two authorit .....

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seeks a relief beyond its powers under that provision or is seeking complete recall or review of the initial order. On such grounds and similar to those raised in a Appeal one can understand the approach of the Tribunal in not granting the application but the application cannot be thrown out at the threshold merely because a Appeal under section 260A of the Income Tax has been filed before this Court and is pending. Dr. Shivram submits that this understanding of the legal provision by the Tribu .....

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issed. 9. After hearing both sides and perusing the two legal provisions, namely, under section 254 as reproduced above, and section 260A of the Income Tax Act, 1961 we are of the view that the Tribunal s order and impugned in the Writ Petition cannot be sustained. This Court also has clarified the legal position in an order passed copy of which is annexed at page 146 of the petition paper book. We have noted that such a power is possessed by the Court or Tribunal and even after it disposes of t .....

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record and amend its order passed under section (1) of section 254. If the amendment has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, then, such an amendment shall not be made under this subsection unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. We are not confronted with such a situation. What we are called upon to d .....

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260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments. That in a given case would not only save precious judicial time of the Tribunal but even of the higher Court. Only when the assessee or the Assessing Officer calls upon the Tribunal to undertake an exer .....

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