IN HIGH COURT OF DELHI AT NEW DELHI 16 + W.P. (C) No. 8439/2016 TRUE ZONE BUILDWELL PVT. LTD. Petitioner Through: Mr. Inder Paul Bansal and Mr. Vivek Bansal, Advocates versus PR. COMMISSIONER OF INCOME TAX, AGRA-2 Respondent Through: Mr. Rahul Kaushik, Senior Standing Counsel CORAM: JUSTICE S. MURALIDHAR JUSTICE PRATHIBA M. SINGH ORDER 05.09.2017 1. In peculiar facts and circumstances, Petitioner ( Assessee ) has approached this Court challenging impugned order dated 27th April 2016 passed by Income Tax Appellate Tribunal ( ITAT ) in three miscellaneous applications being M.A. Nos. 83, 84 and 85 of 2014 filed by Assessee under Section 254 (2) of Income Tax Act, 1961 ( Act ). said applications were filed in relation to orders passed by ITAT in three appeals of Assessee, ITA No. 2092/Del/2012 for Assessment Year ( AY ) 2007-08; ITA No. 2093/Del/2012 for AY 2008-09 and ITA No. 2094/Del/2012 for AY 2009-10. 2. background facts are that Assessee was subjected to search and seizure operation under Section 132 of Act on 31 st July 2008. After W.P.(C) 8439/2016 Page 1 of 6 receiving notices under Section 153A of Act, Assessee filed, on 22nd March 2010, returns declaring income of Rs. 11,95,100/- for AY 2006-07, Rs. 24,66,241/- for AY 2007-08 and Rs. 1,81,84,890/- for AY 2008-09. For AY 2009-10, Assessee filed return on 11th August 2010, declaring income of Rs. 4,48,15,820/-. 3. According to Assessee, during course of assessment proceedings, it replied to queries raised by AO by way of questionnaires and placed on record relevant details. On 29th December 2010, separate assessment orders were passed by AO for AYs 2006-07, 2007-08, 2008- 09 and 2009-10. AO made additions under Section 69C of Act in respect of aforementioned AYs apart from other additions. It must be mentioned that present petition concerns additions made under Section 69C of Act. 4. Aggrieved by orders of AO, Assessee filed appeals before Commissioner of Income Tax (Appeals) [ CIT (A) ]. These appeals were partly allowed by CIT (A) by its order dated 31st January 2012. additions made by AO under Section 69C of Act were deleted in part. 5. While Revenue filed appeals against orders of CIT (A) for each of above AYs before ITAT, Assessee filed Cross Objections ( COs ). To extent that Assessee was denied relief by CIT (A), it also filed separate appeals before ITAT. 6. It is stated that on 29th November 2012, all appeals and cross W.P.(C) 8439/2016 Page 2 of 6 objections were heard by ITAT and orders were reserved. 7. By order dated 31st December 2012, passed by ITAT in ITA Nos. 1693/Del/2012 and 2091/Del/2012 and CO No. 246/Del/2012, ITAT rejected Revenue s appeal. Against this order of ITAT for AY 2006- 07, Revenue filed appeal before this Court viz., ITA No. 400/2013. said appeal was dismissed by this Court on 3rd April 2014, thus confirming order dated 31st December 2012 passed by ITAT in ITA Nos. 1693/Del/2012 and 2091/Del/2012 and CO No. 246/Del/2012 for AY 2006-07. 8. For some reason, although arguments in appeals and COs for above four AYs were heard together, orders in respect of appeals for different AYs was not passed on same date by ITAT. order in appeal for AY 2007-08 was passed by ITAT five days later on 4th January 2013. ITAT followed its own order for AY 2006-07 and dismissed ground raised by Revenue in its appeal in respect of additions under Section 69C of Act. However, while dealing with ground raised by Assessee in respect of action of CIT (A) sustaining part of additions under Section 69C of Act, ITAT dismissed Assessee s appeal. This time it chose not to follow its own order for AY 2006-07. 9. Interestingly, appeal by Revenue (ITA No. 736/2014) against order dated 4th January 2013 of ITAT in ITA No. 1694/Del/2012 (Revenue s Appeal) for AY 2007-08 was dismissed by this Court by order dated 5th August 2015. Thus, ITAT s order dismissing W.P.(C) 8439/2016 Page 3 of 6 Revenue s appeal for AY 2007-08 was confirmed by this Court. 10. Twenty days after order in appeal for AY 2007-08, ITAT on 24th January 2013 passed separate order in appeal for AY 2008-09. ITAT dismissed Revenue s appeal by following its own order for AY 2006-07. However, it also dismissed Assessee s appeal by choosing not to follow its order for AY 2006-07. 11. On same date, i.e. 24th January 2013, ITAT by separate order dismissed Revenue s appeal for AY 2009-10 following its order for AY 2006-07. ITAT, however, dismissed Assessee s appeal choosing not to follow its order for AY 2006-07. 12. grievance of Assessee is that despite facts and circumstances for all four AYs, i.e. 2006-07, 2007-08, 2008-09 and 2009-10 being same, and ITAT hearing appeals and COs arising in respect thereof together and reserving orders on same day, ITAT passed separate orders for different AYs. Further, said orders were not consistent. ITAT followed its own order for AY 2006-07 while rejecting Revenue s appeals for subsequent AYs, but also rejected Assessee s appeals by not following said order for AY 2006-07. 13. This led Assessee to file aforementioned MAs under Section 254 (2) of Act before ITAT on 16th June 2014 seeking rectification of ITAT s orders in Assessee s appeals being ITA Nos. 2092- 2094/Del/2012 for AYs 2007-08, 2008-09 and 2009-10 respectively. These three applications, numbered as M.A. Nos. 83/2014, 84/2014 and 85/2014 W.P.(C) 8439/2016 Page 4 of 6 were dismissed by ITAT by impugned order dated 27th April 2016. ITAT was of view that allowing applications would amount to reviewing its own orders dated 4th January 2013 (for AY 2007-08) and 24th January 2013 (for AYs 2008-09 and 2009-10 respectively). 14. Having heard learned counsel for parties, Court is of view that Petitioner has been able to make out case to show that ITAT contradicted itself by passing separate orders in respect of Assessee s appeals for aforementioned AYs on different dates. It is not understood as to how factual matrix for AYs 2007-08, 2008-09 and 2009-10 could be different from that of AY 2006-07 such that it would necessitate contradictory orders being passed in each of AYs. ITAT s order dated 31st December 2012 allowing Assessee s appeal for AY 2006-07 has been sustained by this Court by dismissing Revenue s appeal, being ITA No. 400/2013, on 3rd April 2014. Yet, ITAT did not follow said order for AY 2006-07 when it came to Assessee s appeals for subsequent years, i.e. 2007-08, 2008-09 and 2009-10. 15. In considered view of Court, this was good enough ground for Assessee to seek rectification of order under Section 254 (2) of Act. Accordingly, impugned order dated 27th April 2016 passed by ITAT is hereby set aside. This would be tantamount to three M.A. Nos. 83, 84 and 85 of 2014 filed by Assessee before ITAT being allowed. 16. question then arises as to consequential order that requires to be passed since challenge in present petition is not to main orders passed by ITAT on 4th January 2013 and 24th January 2013, dismissing W.P.(C) 8439/2016 Page 5 of 6 Assessee s appeals for aforementioned AYs. 17. In Promain Limited v. CIT [2016] 382 ITR 25 (Del), in similar circumstances, Court observed that, in light of law explained by Supreme Court in Honda Siel Powers Products Ltd. v. CIT [2007] 295 ITR 466 (SC), Assessee cannot be faulted for approaching ITAT under Section 254 (2) of Act instead of directly filing appeal in this Court. This persuades this Court to hold that ITAT should hear afresh Assessee s appeals for aforesaid AYs, i.e. 2007-08, 2008-09 and 2009- 10, in view of subsequent developments as noticed hereinabove. 18. For all of aforementioned reasons, Court hereby sets aside order dated 4th January 2013 passed in Assessee s appeal ITA No. 2092/Del/2012 for AY 2007-08, and two orders dated 24th January 2013 passed by ITAT in ITA Nos. 2093/Del/2012 and 2094/Del/2094/2012 for AYs 2008-09 and 2009-10 respectively. said three appeals, i.e. ITA Nos. 2092/Del/2012; 2093/Del/2012 and 2094/Del/2094/2012 are restored to file of ITAT. ITAT will pass fresh order on merits after hearing parties. aforementioned appeals shall be now listed before ITAT for directions on 16th October 2017. 19. writ petition is disposed of in above terms. S. MURALIDHAR, J. PRATHIBA M. SINGH, J. SEPTEMBER 05, 2017/rd W.P.(C) 8439/2016 Page 6 of 6 True Zone Buildwell Pvt. Ltd. v. Pr. Commissioner of Income-tax, Agra-2