The Commissioner of Income-tax, Salem v. M/s. Sri. Ponkumar Magnesite Mines
[Citation -2015-LL-0427-31]

Citation 2015-LL-0427-31
Appellant Name The Commissioner of Income-tax, Salem
Respondent Name M/s. Sri. Ponkumar Magnesite Mines
Court HIGH COURT OF MADRAS
Relevant Act Income-tax
Date of Order 27/04/2015
Judgment View Judgment
Keyword Tags rectifying mistake • mistake apparent
Bot Summary: 1646/Mds/1994 on the file of the Income Tax Appellate Tribunal, Madras 'D' Bench for the assessment year 1983-84. For appellant : Mr.J.Narayanasamy Standing Counsel for Income Tax 2 JUDGMENT This Tax Case is filed by the Revenue as against the order of the Income Tax Appellate Tribunal raising the following substantial question of law: Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in dismissing the Miscellaneous Petition filed by the Department without going into the merits and legal position of the case is valid 2. As against the said order, the assessee once again filed an appeal before the Income Tax Appellate Tribunal. The Tribunal, after 3 analysing the facts and circumstances of the case, allowed the appeal filed by the assessee holding that the communication from the Assessing Officer amounted to an order under Section 237 of the Income Tax Act. Against the said order of the Tribunal, the Revenue filed Miscellaneous Petition before the Tribunal and sought rectification of the order contending that no order was passed by the Assessing Officer under Section 237 of the Income Tax Act. A reading of the order of the Tribunal reveals that the Tribunal, while disposing of the miscellaneous petition filed by the Revenue, was of the view that the grievance of the Department could be resolved by way of appeal and therefore, there is no scope for passing an order under Section 254(2) of the Income Tax Act. The Tribunal, while exercising the power of rectification, can recall its order, if it is satisfied that on account of mistake, manifest error or omission attributable to the Tribunal, prejudice is caused to the party.


1 IN HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2015 CORAM: HONOURABLE MR. JUSTICE R.SUDHAKAR and HONOURABLE Ms. JUSTICE K.B.K.VASUKI Tax Case (Appeal) No.187 of 2015 Commissioner of Income Tax Salem. Appellant versus M/s. Sri. Ponkumar Magnesite Mines Lorry Transport Operator Periyagollapatti, Kannakurichi Post Salem - 8. Respondent PRAYER: Tax Case Appeal filed under Section 260A of Income Tax Act, 1961 as against order dated 25.05.2004 made in M.P.No.276/Mds/2003 in I.T.A.No.1646/Mds/1994 on file of Income Tax Appellate Tribunal, Madras 'D' Bench for assessment year 1983-84. For appellant : Mr.J.Narayanasamy Standing Counsel for Income Tax 2 JUDGMENT (Judgment of Court was delivered by R.SUDHAKAR,J.) This Tax Case (Appeal) is filed by Revenue as against order of Income Tax Appellate Tribunal raising following substantial question of law: "Whether on facts and in circumstances of case, Income Tax Appellate Tribunal was right in law in dismissing Miscellaneous Petition filed by Department without going into merits and legal position of case is valid?" 2. brief facts of case are as follows: assessee, which is registered firm had filed return of income for assessment year 1983-84 on 23.04.1998 and claimed refund of advance tax. Assessing Officer rejected claim of refund, as return was filed belatedly, but advised assessee to file petition under Section 119(2)(b) for condonation of delay and to seek refund. Aggrieved by same, assessee filed appeal before Commissioner of Income Tax (Appeals), who dismissed appeal holding that order passed by Assessing Officer is not under Section 237 of Income Tax Act and hence, no appeal could lie. As against said order, assessee once again filed appeal before Income Tax Appellate Tribunal. Tribunal, after 3 analysing facts and circumstances of case, allowed appeal filed by assessee holding that communication from Assessing Officer amounted to order under Section 237 of Income Tax Act. Against said order of Tribunal, Revenue filed Miscellaneous Petition before Tribunal and sought rectification of order contending that no order was passed by Assessing Officer under Section 237 of Income Tax Act. However, Tribunal, dismissed Miscellaneous Petition filed by Revenue, holding as follows: "If Revenue is aggrieved over this order, it is open to them to file appeal before higher forum. Under Section 254(2) of Income Tax Act, this Tribunal can rectify only error which is apparent on face of record. In guise of rectifying mistake, this Tribunal cannot reverse this order. Therefore, in our view, there is no merit in petition filed by Revenue. error as pointed out by Revenue is not error within meaning of Sec.254(2) of Income Tax Act. Therefore, we do not find any merit in petition filed by Revenue." 3. Aggrieved by above-said order of Tribunal, present appeal has been filed by Revenue. 4 4. Heard learned Standing Counsel appearing for Revenue and perused materials placed before this Court. 5. reading of order of Tribunal reveals that Tribunal, while disposing of miscellaneous petition filed by Revenue, was of view that grievance of Department could be resolved by way of appeal and therefore, there is no scope for passing order under Section 254(2) of Income Tax Act. 6. It is worth to note that Tribunal has power under Section 254(2) of Income Tax Act when there is error apparent on face of record, however, in guise of rectifying mistake, it cannot reverse its own order. One of important reasons for giving power of rectification to Tribunal is to see that no prejudice is caused to either of parties appearing before it by its decision based on mistake apparent from record. Tribunal, while exercising power of rectification, can recall its order, if it is satisfied that on account of mistake, manifest error or omission attributable to Tribunal, prejudice is caused to party. 7. In present case, we find that Tribunal, on merits, had come to conclusion that order passed by Assessing Officer 5 is one within provisions of Section 237 of Income Tax Act. When Tribunal had arrived at such finding, it is not open to Revenue to file Miscellaneous Petition challenging said finding in guise of rectification of order. Revenue has remedy of appeal as against findings of Tribunal. Without resorting to such remedy, Revenue has filed Miscellaneous Petition. 8. In light of above, we see no reason to interfere with order of Tribunal. Accordingly, finding no question of law much less any substantial question of law arises for consideration in this appeal, this Tax Case (Appeal) stands dismissed giving liberty to Revenue to pursue appeal in accordance with law, if they so desire. No costs. Index: Yes / No (R.S.,J.) (K.B.K.V.,J.) Internet: Yes / No 27.04.2015 sl R.SUDHAKAR,J. AND K.B.K.VASUKI,J. sl To 6 1. Income Tax Appellate Tribunal, Madras 'D' Bench. 2. Commissioner of Income Tax (Appeals) II, Coimbatore. 3. Deputy Commissioner of Income Tax, Company Circle, Tirupur. Tax Case (Appeal) No.187 of 2015 27.04.2015 Commissioner of Income-tax, Salem v. M/s. Sri. Ponkumar Magnesite Mine
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