HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.24114/2019, W.P. No.177/2020 & W.P. No.179/2019 (-1-) W.P. No.24114/2019 (N.P. Mishra Infrastructure Pvt. Ltd. Vs. Commissioner of Income Tax) W.P. No.177/2020 (S.S. Infraestate Pvt. Ltd. Vs. Commissioner of Income Tax) W.P. No.179/2019 (Nishitchem Product P. Ltd. Vs. Commissioner of Income Tax) Indore, dated: 28.02.2020. Parties through their counsel. Regard being had to similitude in controversy involved in present cases, writ petitions were analogously heard and by common order, they are being disposed of by this Court. Facts of Writ Petition No.24114/2019 are narrated hereunder. petitioner before this Court has filed this present petition being aggrieved by order dated 06.05.2016 passed by Income Tax Appellate Tribunal on application HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.24114/2019, W.P. No.177/2020 & W.P. No.179/2019 (-2-) preferred under Section 254(2) of Income Tax Act. Undisputed facts reveal that application was preferred under Section 254(2) of Income Tax Act in respect of order dated 11.06.2012 and 24.06.2012 passed by Tribunal in respect of assessment year 2014-15, 2013-14, 2013-14 and 2013-14. prayer clause of present writ petition reads as under:- 7.1. Issue writ of Mandamus or any other appropriate writ, order or direction under Article 226 of Constitution o India:- A. To recall ITAT order dated 11.06.2015 (ITA No.5521IND/2014) for A.Y. 2013-14 and provide opportutnity of being heard to petitioner in 234E matter. B. To issue any other writ, order or direction as this Hon'ble Court deems just and fair in facts and circumstances of case to give relief to petitioner. prayer clause makes it very clear that order passed by Income Tax Appellate Tribunal dated 11.06.2015, which was passed in regular appeal is under challenge. Section 260(A) of Income Tax Act, 1961 reads as under:- Appeal to High Court. 260A. (1) appeal shall lie to High Court HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.24114/2019, W.P. No.177/2020 & W.P. No.179/2019 (-3-) from every order passed in appeal by Appellate Tribunal before date of establishment of National Tax Tribunal, if High Court is satisfied that case involves substantial question of law. (2) Chief Commissioner or Commissioner or assessee aggrieved by any order passed by Appellate Tribunal may file appeal to High Court and such appeal under this sub-section shall be (a) filed within one hundred and twenty days from date on which order appealed against is received by assessee or Chief Commissioner or Commissioner; (b) (c) in form of memorandum of appeal precisely stating therein substantial question of law involved. (2A) High Court may admit appeal after expiry of period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing same within that period. (3) Where High Court is satisfied that substantial question of law is involved in any case, it shall formulate that question. (4) appeal shall be heard only on question so formulated, and respondents shall, at hearing of appeal, be allowed to argue that case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge power of court to hear, for reasons to be recorded, appeal on any other substantial question of law not formulated by it, if it is satisfied that case involves such question. (5) High Court shall decide question of law HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.24114/2019, W.P. No.177/2020 & W.P. No.179/2019 (-4-) so formulated and deliver such judgment thereon containing grounds on which such decision is founded and may award such cost as it deems fit. (6) High Court may determine any issue which (a) has not been determined by Appellate Tribunal; or (b) has been wrongly determined by Appellate Tribunal, by reason of decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, provisions of Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to High Court shall, as far as may be, apply in case of appeals under this section. Keeping in view aforesaid statutory provisions of law, it is evident that order passed by Income Tax Appellate Tribunal are appealable before this Court. petitioner has sought for recall of order dated 11.06.2015 passed in ITA No.552/IND/2014 for assessment year 2013-14. fact makes it very clear that application was filed under Section 254(2) of IT Act before tribunal for rectification and same has been dismissed on 06.05.2016 and thereafter, present petition has been filed. Learned counsel has argued before this Court that against order under Section 254(2), no appeal is maintainable. This Court has heard learned counsel for parties at length. HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.24114/2019, W.P. No.177/2020 & W.P. No.179/2019 (-5-) fact remains that prayer has been made for recalling order dated 11.06.2015, which was passed in regular appeal by Income Tax Appellate Tribunal . If contentions advanced by learned counsel are accepted, in each and every case decided by tribunal, application will be preferred under Section 254(2) and thereafter, writ petition will be preferred and therefore, in considered opinion of this Court, petitioner shall be free to file appeal in accordance with law keeping in view Section 260A of Income Tax Act, 1961. admission is declined. (S.C. Sharma) (Shailendra Shukla) Judge Judge N.R. Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2020.03.04 15:31:46 +05'30' N. P. Mishra Infrastructure Pvt. Ltd. v. Commissioner of Income-tax