2015 (8) TMI 464 - HC - Income Tax

Maintainability of appeal against the order passed by the Tribunal under section 254(2) - Held that - The Tribunal had passed an order dated June 30, 2010. The Tribunal corrected a mistake on account of not having noticed the judgment of the Supreme Court in CIT v. Amalgamations P. Ltd. 1997 (4) TMI 8 - SUPREME Court . The Tribunal expressly recorded that the applicability of the decision cannot be adjudicated under the provisions of section 254(2), as the same is covered under section 254(1) of the Act. The respondent agrees that as and when an order is ultimately passed under section 254(1) in accordance with the order dated June 30, 2010, under section 254(2), the same would be appealable under section 260A. The appellant, therefore, is not without a remedy in the event of the order under section 254(1) being adverse to it. This order in an application under section 254(2) is not appealable.

Issues:
1. Maintainability of the appeal under section 260A of the Income-tax Act, 1961 against the order passed by the Tribunal under section 254(2).
2. Correcting a mistake by the Tribunal based on the judgment of the Supreme Court in CIT v. Amalgamations P. Ltd.
3. Appeal filed under section 254(2) against the order dated June 30, 2010, and its dismissal.
4. The appealability of the order in an application under section 254(2).

Issue 1: Maintainability of the appeal under section 260A:
The High Court held that the appeal is not maintainable under section 260A of the Income-tax Act, 1961, against the order passed by the Tribunal under section 254(2). This decision was based on a previous judgment of the Division Bench in Rani Paliwal v. CIT [2004] 190 CTR (P&H) 566, which clearly stated that such appeals are not maintainable.

Issue 2: Correcting a mistake by the Tribunal:
The Tribunal had passed an order in M. A. No. 46 (ASR) of 2009, correcting a mistake due to not considering the judgment of the Supreme Court in CIT v. Amalgamations P. Ltd. [1997] 226 ITR 188 (SC). It was noted that the applicability of this decision falls under section 254(1) of the Act, not section 254(2). The respondent acknowledged that any adverse order under section 254(1) would be appealable under section 260A, providing a remedy to the appellant.

Issue 3: Appeal filed under section 254(2) and its dismissal:
The appellant filed M. A. No. 12 (ASR) of 2011 under section 254(2) against the order dated June 30, 2010, which was dismissed by the impugned order and judgment dated November 19, 2012. The court reiterated that while the appellant has a remedy in case of an adverse order under section 254(1), the order in an application under section 254(2) is not appealable.

Issue 4: Appealability of the order in an application under section 254(2):
The court highlighted that the decision in I. T. A. No. 472 of 2009, if determined before the Tribunal decides the matter under section 254(1), would have its own impact. This indicates that the order in an application under section 254(2) does not carry the same appealability as an order under section 254(1).

This judgment clarifies the intricacies of appealability under different sections of the Income-tax Act, emphasizing the importance of following established precedents and understanding the specific provisions governing appeals in tax matters.

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