2021 (2) TMI 129 - AT - Income Tax

Rectification of mistake - Jurisdiction over the matter of assessee lies with Income Tax Settlement Commission ITSC by virtue of section 245F(2) OR Tribunal - CIT(A) has dismissed the appeal only for statistical purpose and it is not on appealable order - HELD THAT - We have noted that in the entire MA there is no such averments that while deciding the appeal the submissions raised by the ld. DR for the revenue was not correctly recorded or such submissions was left from consideration by Tribunal while adjudicating the appeal. We have noted that no such arguments was raised by revenue that the jurisdiction over the matter of assessee lies with ITSC by virtue of section 245F(2) of the Act and the Tribunal has no jurisdiction to adjudicate the appeal and that the Ld. CIT(A) has dismissed the appeal only for statistical purpose or that order is not on appealable order. All these pleas are raised for the first time before the Tribunal. Therefore the pleas (objections) raised in the present MA is misplaced and cannot be admitted at this stage. Even otherwise it is settled law that mistake which is required to be rectified must be obvious and patent and not something which can be established by a long drown process or reasoning. If the issue is debatable and not patent and clear then the provision of section 254(2) cannot be invoked and the remedy lies under section 260A of the Income tax Act. Therefore we reject the submissions of Ld. DR for the revenue on first two objections Condonation of delay - We find merit in the submissions of ld.AR for the assessee that reliance on the order 2017 (7) TMI 360 - ITAT AHMEDABAD was only for condoning the delay. We noted that the revenue has not raised grievances about the condonation of delay in admitting the appeal. Cases of assessee are similar on facts as in case of other group case which were also restored by the Tribunal to the file of LD. CIT(A) hence the Tribunal in the present case has made no mistake much less apparent mistake while following the order of the Tribunal in group cases. The revenue has not filed application to recall the order in Kirit M. Patel - Thus the grievance of the revenue as raised in objection no. (iii) is also misplaced. Revenue made reliance on the decision of Cochin Tribunal in JC Augustine 2009 (3) TMI 218 - ITAT COCHIN wherein it was held that if the matter abates before ITSC the erstwhile jurisdiction of the CIT(A) gets revived thus the assessee has to move a restoration petition before ld. CIT(A). We have seen that the Tribunal while restoring the appeals of the assessee to the file of ld. CIT(A) has not adjudicated the issues raised in the appeals on merit. So there is no harm to the interest of revenue as there is no adjudication on merit by Tribunal. In the result the application filed by the revenue is dismissed.

Summary

Issues Involved:
1. Jurisdiction of the Income Tax Settlement Commission (ITSC) over the assessee.
2. Maintainability of the appeal before the Income Tax Appellate Tribunal (ITAT).
3. Condonation of delay in filing the appeal.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the Income Tax Settlement Commission (ITSC) over the Assessee:
The primary issue was whether the ITSC had exclusive jurisdiction over the assessee for the assessment years 1999-2000 to 2005-06. The Revenue argued that once the ITSC admitted the application, it retained exclusive jurisdiction under section 245F(2) of the Income Tax Act until an order was passed under section 245D(4). The Tribunal noted that the assessee's applications were admitted by the ITSC, and the proceedings were pending. Therefore, the CIT(A) had no jurisdiction to decide the appeal, and any proceedings before the CIT(A) became infructuous. The Tribunal emphasized that the ITSC's exclusive jurisdiction precluded any parallel proceedings by other income-tax authorities.

2. Maintainability of the Appeal before the Income Tax Appellate Tribunal (ITAT):
The Revenue contended that the appeal filed by the assessee before the ITAT was not maintainable since the CIT(A) had dismissed the appeal for statistical purposes, and no appealable order existed. The Tribunal observed that this issue was not raised during the original hearing of the appeal and was brought up for the first time in the Miscellaneous Application. The Tribunal held that such issues, which are debatable and not apparent mistakes, cannot be rectified under section 254(2) and should be addressed under section 260A. The Tribunal rejected the Revenue's contention, emphasizing that the CIT(A)'s order was indeed appealable under section 253(1)(a) of the Act.

3. Condonation of Delay in Filing the Appeal:
The Tribunal had previously condoned a delay of 4378 days in filing the appeal, relying on a similar case (Arvindbhai Mohabhai & Krit M Patel (HUF) in ITA No.1635 to 1638 and 1655/AHD/2016). The Revenue did not challenge this condonation of delay. The Tribunal reiterated that the reliance on the earlier case was only for the purpose of condoning the delay and not for deciding the merits of the appeal. The Tribunal found no mistake in its previous order regarding the condonation of delay.

Conclusion:
The Tribunal dismissed the Miscellaneous Applications filed by the Revenue, holding that the ITSC had exclusive jurisdiction over the assessee for the relevant assessment years. The Tribunal also upheld the maintainability of the appeal before the ITAT and confirmed the condonation of delay in filing the appeal. The Tribunal emphasized that the issues raised by the Revenue were either new and not previously argued or were debatable, and thus not suitable for rectification under section 254(2). The Tribunal's decision was consistent with its previous rulings in similar cases.