TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 337
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....in factory building and making further addition of Rs. 8,64,485/on account of unexplained investment in factory land based on the subRegistrar's valuation. 2.2. Being aggrieved and dissatisfied with the assessment order, the petitionerassessee preferred appeal before the CIT(A) and by order dated 3.11.2009 the learned CIT(A) dismissed the said appeal confirming the aforesaid additions made by the Assessing Officer. 2.3. Being aggrieved and dissatisfied with the order passed by the learned CIT(A) in confirming the aforesaid additions made by the Assessing Officer, the assessee preferred appeal before the learned Income Tax Appellate Tribunal under Section 254(1) of the Act being Appeal No.675 of 2010. That by judgment and order dated 27.4.2012 the learned Tribunal dismissed the said appeal and confirmed the aforesaid additions. 2.4. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned ITAT dated 27.4.2012 passed in ITA No. 675/RJT/2010, the assessee preferred appeal before this Court under Section 260 A of the Act being Tax Appeal No. 653 of 2012 and by detailed judgment and order dated 12.2.2013 the Division Bench of this Court dismissed the said ....
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....by Miscellaneous Application, Tax Appeal has been dismissed by the High Court. That thereafter, by impugned order dated 30.5.2013 learned Tribunal has dismissed the Miscellaneous Application No. 33 of 2013. 2.7. Being aggrieved and dissatisfied with the impugned order passed by the learned Tribunal passed in rectification application in dismissing the same, the assessee has preferred present petition under Article 226 of the Constitution of India. 3.0. First question which is posed for the consideration of this Court is whether against the impugned order passed by the learned Tribunal passed in Miscellaneous Application and rejecting the said Miscellaneous Application, the appeal before the High Court as provided under Section 260 A of the Act would be maintainable or not and if the said question is answered in affirmative the petitioner should be relegated to prefer appeal as provided under Section 260 A of the Act. 4.0. On the aforesaid issue / question, Shri J.P. Shah, learned counsel for the petitioner has vehemently submitted that as per Section 260 A of the Act appeal would be maintainable before the High Court against the order passed by the learned Tribunal in rejecting ....
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....Act before High Court would not be maintainable and the remedy available to the assessee would be to prefer petition under Article 226 / 227of the Constitution of India. 5.2. Now, so far as challenging the impugned order passed by the learned Tribunal rejecting the rectification application is concerned, Shri J.P. Shah, learned counsel for the petitioner - assessee has vehemently submitted that the learned Tribunal has materially erred in rejecting the rectification application by observing that there is no error apparent on the face of record. 5.3. It is submitted by Shri J.P. Shah, learned counsel for the petitioner - assessee that while considering the rectification application, the learned Tribunal has not properly appreciated and / or considered scope and ambit of its powers under Section 254 (2) of the Act. Shri J.P. Shah, learned counsel for the petitioner - assessee has heavily relied upon the decisions of this Court in the case of Honda Siel Power Products Ltd vs CIT reported in (2007) 295 ITR 466 at 472 as well as in the case of ACIT vs. Saurashtra and Kutch Stock Exchange Ltd reported in (2008)305 ITR 227 (SC) with respect to powers of the Tribunal while deciding the r....
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....the assessee to point out that the learned Tribunal has committed error in rejecting the rectification application and in not correcting error apparent. 5.7. Shri Shah, learned counsel for the petitioner has vehemently submitted that the learned Tribunal has materially erred in relying upon and considering the Valuation Report submitted before the Union Bank while confirming the addition of Rs. 22,70,370/on account of unexplained investment in cost of construction of factory building and Tunnel Kiln. It is submitted that the learned Tribunal ought to have relied upon and considered the valuation report submitted before the Rajkot Nagrik Sahakari Bank Ltd, which had approved finance for the assessee. Making above submissions on merits, it is requested to allow the present Special Civil Application and quashed and set aside the impugned order passed by the learned Tribunal passed in rectification. 6.0. Heard Shri J.P. Shah, learned counsel for the petitioner and Shri M.R. Bhatt, learned counsel for the revenue who was requested by us to assist the Court on the question of law whether against the order passed by the learned Tribunal under Section 254(2) of the Act in so far as rejec....
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.... Engineering and Foundry Works (2000) 245 ITR 272 and submitted that an order passed by the Appellate Tribunal on the application for rectification is an order passed in appeal by the Appellate Tribunal 6.In Durga Engineering and Foundry Works (2000) 245 ITR 272 (SC), the Supreme Court held that the reference under section 256 of the Income Tax Act, 1961, could be made from the order of the Appellate Tribunal passed on the application for rectification under section 254(2). That was so held by the Supreme Court in the light of the language of section 256 which empowered the assessee and the revenue to "require the Appellate Tribunal to refer to the High Court any question of law arising out of an order passed under section 254". Section 254 comprises two subsections. Subsection (1) of section 254 provides that the Appellate Tribunal may pass such order on an appeal as it thinks fit after giving both the parties to the appeal an opportunity of being heard. Subsection (2) of section 254 permits the Tribunal to rectify any mistake apparent from the record and amend any order passed under subsection (1) within four years from the date of the order. The expression employed in se....
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....Appellate Tribunal rejecting the application of rectification, the appeal under section 260A is not maintainable." 10. The Rajasthan High Court in the case of Madhav Marbles & Grainites (supra) has held that writ petition under Article 226 of the Constitution of India is maintainable against the order of Tribunal passed under Section 254(2) of the Act. The Rajasthan High Court in the said decision rejected the contention on behalf of the revenue that appeal would lie before the High Court under Section 260 A of the Act against the order passed under Section 254(1) of the Act, by which the Miscellaneous Application for rectification has been rejected by Tribunal. The Rajasthan High Court while rejecting the said contention observed that said order does not decide rights of the parties finally at the hands of the Tribunal and it is only for substantial questions of law arising out of any order of the Tribunal under Section 254(1) that an appeal on substantial question of law, could be filed before the Division Bench of the High Court. In the said decision, the Rajasthan High Court relied upon the decision of the Bombay High Court in the case of Chem Amit (supra). 11. A similar vie....
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....s Application / rectification application, appeal under Section 260 A of the Act before this Court would not be maintainable and the aggrieved party may prefer Special Civil Application under Article 226 of the Constitution of India. Such petition under Article 226 of the Constitution of India thus would lie against the order of Tribunal rejecting the application under Section 254(2) of the Act. 14. Now, so far as the submission made by Shri Shah, learned counsel for the petitioner assessee on merits against the impugned order passed by the learned Tribunal rejecting the Miscellaneous Application is concerned, for the reasons stated herein below we are of the opinion that Special Civil Application under Article 226 of the Constitution of India is not required to be entertained. 15. It is required to be noted that against the judgment and order passed by the learned Tribunal passed in ITA No. 675 of 2010 confirming the additions of Rs. 24,46,550/and Rs. 8,64,485/, the assessee preferred Tax Appeal No. 653 of 2012 before this Court on 15.9.2012 and this Court dismissed the appeal on merits dealing with all the submissions, which were made on behalf of the assessee and by detailed s....
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.... the appeal is dismissed on account of - (I) being barred by limitation, (ii) being defective in nature, (iii) the appellant having no locus standi to prefer appeal, it cannot be stated that there is merger of the order of the subordinate forum in the order of the superior forum. The reason is : there is no 'order' made by the superior forum, i.e. on merits, the controversy between the parties has not been gone into by the appellate forum. But, in a case where the High Court comes to the conclusion no substantial question of law arises on a particular issue, it cannot be stated that when the appeal is dismissed by the High Court, the subject matter of the controversy between the parties has not been dealt with by the High Court. The decision of the Tribunal is affirmed on the issue brought before the High Court. 23.As laid down by the Apex Court the appellate jurisdiction is conferred on the Supreme Court by Articles 132, 133 and 134 of the Constitution, while under Article 136 of the Constitution a special jurisdiction is conferred on the Supreme Court which is sweeping in its nature. It carries with it a residuary power. Under the said Article no right of appeal is conferred on ....
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....oth on facts and law, or on any one, where the High Court does not find any reason to interfere with the decision of the Tribunal." 16. Now, applying the aforesaid proposition of law laid down, the facts of the present case are required to be considered. It is required to be noted that before this Court Tax Appeal under Section 260 A of the Act, against the judgment and order passed by the learned Tribunal passed in ITA No. 675 of 2010, same grounds were submitted which are mentioned in the rectification application, more particularly, valuation accepted by the Assessing Officer while making addition of Rs. 22,70,370/. Dealing with the same in extenso, the Division Bench of this Court has dismissed the appeal and confirmed the order passed by the Tribunal confirming the addition of Rs. 24,46,550/and Rs. 8,64,485/. As stated above, at the time of hearing of the Tax Appeal, the assessee did not point out before this Court that they have already preferred rectification application before the Tribunal which is pending nor even at the time of deciding the rectification application (subsequently) by the Tribunal it was pointed out before the Tribunal that against the judgment and order....