2016 (5) TMI 288 - HC - Income Tax

Application of Section 254(2) - Whether he Tribunal has erred in dismissing the M.As filed by the Department? - Held that - Inapplicability of Section 254(2) of the Act to the application for recall and the applicability of Rule 12 of ITAT Rules to such an application was not an issue urged by the Revenue before the Tribunal, thus not considered by the Tribunal. We specifically asked Mr. Tejveer Singh, whether the issue being urged before us was raised before the Tribunal and he answered in the negative. Therefore, the question as framed does not arise from the impugned order of the Tribunal. Thus as held by this Court in Commissioner of Income Tax vs. Tata Chemicals Ltd. 2002 (4) TMI 42 - BOMBAY High Court an appeal on an issue not urged before the Tribunal is not maintainable. However, we have expressed our view as it is a pure question of law and identical issues are likely to arise before the Tribunal.

Summary

Issues:
Appeal under Section 260A challenging Tribunal's order dated 8th February, 2013 for Assessment Year 2000-01.
Questions of law raised:
(i) Dismissal of M.As filed by Department.
(ii) Dismissal without appreciating previous Tribunal decision.
Analysis:
The Respondent, a public sector undertaking, had an appeal dismissed by Tribunal in 2007 for lack of COD approval, with liberty to apply for recall later. In 2011, Supreme Court ruled COD approval not needed for inter-department disputes. In 2012, Appellant filed for recall, rejected in 2013 as time-barred under Section 254(2) of the Act. Revenue argued the order was under Section 225, not 254(1), so no limitation applied. Court noted previous decision against Revenue, emphasizing failure to seek COD approval. Despite Rule 12 of ITAT Rules, as appeal was in prescribed form, no need for rejection or amendment. Revenue's claim of order under Rule 12 dismissed, as no representation under Rule 7 occurred. Court rejected reliance on Delhi Tribunal decision, as Rule 12 not invoked in this case. Issue not raised before Tribunal, making appeal not maintainable. No substantial question of law found, appeal dismissed.