2011 (11) TMI 33 - HC - Income Tax

Order of commissioner passed under section 80G(5)(vi) - Non appealable order - the order dated 23.12.2009 deserves to be recalled because the order of the Commissioner of Income Tax would not be appealable under Section 260A of the Act as the remedy of appeal became available only on 1.6.2007. Accordingly the instant application is allowed order dated 23.12.2009 is recalled and the writ petition is restored to its original number because against the order dated 8.9.2005 (P.1) passed by the Commissioner of Income Tax only writ petition would be competent.

Summary

Issues:
1. Jurisdiction of the Tribunal to entertain an appeal regarding an order passed under Section 80-G(5)(vi) of the Income Tax Act.
2. Appealability of the order of the Commissioner of Income Tax dated 8.9.2005 before the effective date of the relevant amendment.
3. Maintainability of the appeal before the Tribunal directed against an order dated 8.9.2005.

Analysis:
1. The applicant sought the recall of an order dismissing a writ petition with liberty to file an appeal under Section 260A of the Income Tax Act, challenging the order of the Commissioner of Income Tax and the Income Tax Appellate Tribunal. The Tribunal's jurisdiction to entertain an appeal regarding the order dated 8.9.2005 under Section 80-G(5)(vi) was questioned by the applicant, arguing that the amendment making such orders appealable was effective from 1.6.2007. The writ petition was initially dismissed with liberty to file an appeal under Section 260A.

2. The applicant contended that the order of the Commissioner of Income Tax dated 8.9.2005 would not be appealable before the effective date of the amendment, thus making the appeal before the Tribunal not maintainable. The argument was based on the premise that the amendment allowing appeals was only effective from 1.6.2007, rendering the appeal premature and beyond the Tribunal's jurisdiction.

3. On the other hand, the Revenue's counsel argued that if the amendment was made during the pendency of the appeal before the Tribunal, the appeal would still be maintainable despite being directed against the order dated 8.9.2005. The contention was that the appeal could proceed even if the order was issued before the effective date of the amendment, as long as the appeal was filed after the effective date.

4. After hearing both parties and examining the records, the Court concluded that the order of the Commissioner of Income Tax would not be appealable under Section 260A of the Act before the effective date of the amendment. Consequently, the Court allowed the application for recall, reinstated the writ petition, and directed it to be listed as per roster, emphasizing that only a writ petition would be competent against the order dated 8.9.2005. The order dated 23.12.2009 was recalled, restoring the writ petition to its original status for further proceedings.