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2016 (5) TMI 288 - BOMBAY HIGH COURT

2016 (5) TMI 288 - BOMBAY HIGH COURT - [2016] 383 ITR 284 - Application of Section 254(2) - Whether he Tribunal has erred in dismissing the M.As filed by the Department? - Held that:- Inapplicability of Section 254(2) of the Act to the application for recall and the applicability of Rule 12 of ITAT Rules to such an application was not an issue urged by the Revenue before the Tribunal, thus not considered by the Tribunal. We specifically asked Mr. Tejveer Singh, whether the issue being urged befo .....

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l No. 2323 of 2013 - Dated:- 6-1-2016 - M. S. Sanklecha And B. P. Colabawalla, JJ. For the Appellant : Mr. Tejveer Singh For the Respondent : Mr. Ashok Patil ORDER P. C. 1. This Appeal under Section 260A of the Income Tax Act, 1961 (the Act) challenges the order dated 8th February, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order is in respect of Assessment Year 2000-01. 2. This appeal raises the following questions of law for our consideration : (i) Whether on .....

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want of COD approval was an order under rule 12 of ITAT Rules 1963 r.w.s. 255(5) and not an order as contemplated u/s 254(1) and therefore the limitation u/s 254(2) is not applicable to the said order? 3. The Respondent-Assessee is a public sector undertaking. The Appellant-Revenue had on 16th February, 2002 preferred an appeal to the Tribunal for the Assessment year 2000-01 from the order of the Commissioner of Income Tax(Appeals). The Tribunal by its order dated 6th November, 2007 dismissed th .....

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th February, 2011, the Supreme Court in Electronics Corporation of India Ltd. v/s. UOI 332 ITR 58 held that the approval of COD is no longer required to prosecute a dispute amongst the departments of the Government and Public Sector undertakings inter se. 5. Consequent to the above, in 2012 the Appellant-Revenue filed a miscellaneous application before the Tribunal for recall of the order dated 6th November, 2007 dismissing its appeal. The Tribunal by the impugned order dated 8th February, 2013 .....

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Income Tax Appellate Tribunal Rules, 1963 (ITAT Rules). Thus, it is the case of Revenue that no period of limitation much less the period of limitation of four years as provided in Section 254(2) of the Act applies. 7. Before dealing with the grievance of the Appellant-Revenue, it must be pointed out that it is an agreed position between the parties that the issues arising herein stand covered against the Revenue and in favour of the Respondent-Assessee by the decision of this Court in Writ Pet .....

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the revenue on instructions states that the Revenue had not made any application to obtain approval of the COD before it filed its appeal for A.Y. 1996-98 to the Tribunal. This inspite of the COD mechanism being very much in force at that time. The recall of its earlier orders in respect of ONGC by the Supreme Court in the case of ELECTRONICS CORPORATION OF INDIA LTD only does away with the practice in view of the changed circumstances. The necessity of obtaining approval from COD which was in p .....

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ndently examining the contentions urged on behalf of the Appellant-Revenue. 8. Before dealing with the grievance of the Revenue, it may be necessary to reproduce Rule 12 of the ITAT Rules which reads as under:- R. 12. Rejection or amendment of memorandum of appeal - The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or return it for being amended within such time as it may allow. On representation after such amendment, the memorandum shall be signed and dated by .....

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the memorandum of appeal is not in the prescribed form. It is only after the memorandum of appeal is put in the prescribed form, that it has to be represented for acceptance under Rule 7 of the ITAT Rules. In this case, we specifically asked Mr. Tejveer Singh, whether the appeal filed by the Revenue before the Tribunal was not in accordance with the prescribed form and he informed us that it was in the prescribed form. Therefore, on the aforesaid facts, no occasion to exercise powers under Rule .....

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at the sine quo non for its application is that the memorandum of appeal is not in the prescribed form. Admittedly in this case the memorandum of appeal is in the prescribed form. Therefore the appeal filed by the Revenue itself was listed for hearing on 6 November 2007 before a division Bench of the Tribunal leading to an order of even date under Section 254(1) of the Act. This order dated 6 November, 2007 is an appealable order under Section 260A of the Act. 11. One more aspect which can not b .....

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rejection of the memorandum of appeal till the date of representation after amending the memorandum of appeal would not be excluded while computing the period of limitation as provided under the Act for the purposes of filing an appeal before the Tribunal. Therefore if the order dated 6 November 2007 was an order under Rule 12 of the ITAT Rules then not only there ought to have been a representation of the appeal on the part of the Appellant Revenue but also an explanation for the period of the .....

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g the period when the appeal was first filed and rejected under Rule12 of the ITAT Rules. This could never be the objective as it would result not only in stale issues being reactivated and disrupting finality acquired to quasi judicial orders by passage of time. Consequently, no fault can be found with the impugned order dated 8 February 2013 of the Tribunal rejecting the application for recall of the Order dated 6 November 2007 as being time barred. 12. The reliance by the Appellant-Revenue up .....

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nappropriate as it does not deal with the situation arising in the present facts. Order 41 Rule 3 of the Civil Procedure Code is similar to Rule 12 of the ITAT Rules and it has been adverted to by the Delhi Bench of the Tribunal, yet as pointed out above the same has not been invoked in this case while passing the order dated 6 November 2007 dismissing the appeal of the Revenue. It may be pointed out that in the present facts the appeal was rejected by the order dated 6 November 2007 and not the .....

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