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TMI Blog2015 (9) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... nd / issue which earlier came to be considered by the Division Bench of this Court [2015 (9) TMI 330 - GUJARAT HIGH COURT] and Division Bench dismissed the appeal on merits. In view of the above, present petition under Article 226 of the Constitution of India is not required to be entertained, more particularly, when on the ground / issue which is sought to be canvassed, more particularly, valuation adopted by the Assessing Officer while making addition of ₹ 22,70,370/, the appeal at the instance of the very petitioner – assessee against the order passed by the learned Tribunal passed has been dismissed on merits, this Court is not required to exercise appellate jurisdiction over the order passed by the Division Bench of this Court. Under the circumstances, present petition deserves to be dismissed. - Decided against assessee. - SPECIAL CIVIL APPLICATION NO. 15074 of 2013 - - - Dated:- 8-10-2013 - M.R. SHAH SONIA GOKANI , JJ. For The Appellant : MANISH J SHAH JUDGMENT : 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order or direction quashing and setting aside the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of 2010 challenging inter alia that there are two error apparent on the face of record. It is also required to be noted at this stage that when Tax Appeal No. 653 of 2012 came to be heard by this Court on 12.2.2013 it was not pointed out before the Division Bench of this Court that assessee had already preferred Miscellaneous Application before the learned Tribunal and the same is pending. On the contrary, learned advocate for the assessee made submissions before this Court on merits against the judgment and order passed by the learned Tribunal passed in ITA No.675 of 2010 and considering and dealing with all the submissions made, the division Bench dismissed the Tax Appeal No.653 of 2012 on merits and confirmed the judgment and order passed by the learned Tribunal passed in ITA No.675 of 2010. 2.6. That the aforesaid Miscellaneous Application came up for hearing before the learned Tribunal on 24.1.2013 and the learned advocate for the assessee asked for the adjournments, which was granted by the learned Tribunal. It is also required to be noted at this stage that it was not pointed out before the learned Tribunal that against the judgment and order passed by the learned Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misses the rectification application, in that case, against the said order appeal under Section 260 A of the Act before the High Court would not be maintainable and therefore, only remedy available to the assessee would be to prefer Special Civil Application under Articles 226 / 227 of the Constitution of India challenging the order passed by the learned Tribunal dismissing the rectification application. 4.1. In support of his above submissions, Shri J.P. Shah, learned counsel for the petitioner has heavily relied upon the following decisions. (1). Chem Amit vs. Assistant Commissioner of Income Tax reported in (2005) 272 ITR 397 (Bom). (2). Mandal Ginning Pressing Co. Ltd vs. Commissioner of Income Tax reported in (1973) 90 ITR 332 (Guj). (3). Madhav Marbles Granites Vs. Income Tax Appellate Tribunal reported in (2012) 22 Taxmann. Com 51 (Rajasthan) (4). Visvas Promoters (P) Ltd vs. ITAT reported in (2010) 323 ITR 114 (Madras). (5). Apex Metchem (P) Ltd vs. ITAT reported in (2009) 318 ITR48/184 Taxman (Rajasthan) 5.0. Shri J.P. Shah, learned counsel for the petitioner has further submitted that when the Tribunal refuses to modify its earlier order, appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier by the learned Tribunal, learned Tribunal ought to have allowed the Miscellaneous Application and rectified the mistake. 5.5. It is further submitted by Shri J.P. Shah, learned counsel for the petitioner assessee that when it was pointed out to the learned Tribunal that the decision of the Hon ble Supreme Court in the case of CIT vs. Bharat Engineering and Construction Co.83 ITR 187 though relied upon but not considered by the learned Tribunal, the learned Tribunal ought to have allowed the Miscellaneous Application and ought to have rectified its earlier order and ought to have passed fresh order considering the decision of the Hon ble Supreme Court in the case of Bharat Engineering and Construction Co (supra). 5.6 . When we pointed out that as the Tax Appeal No. 653 of 2012 against order passed by the learned Tribunal passed in ITA No. 675 of 2010 came to be dismissed and the order passed by the learned Tribunal came to be confirmed and therefore, when the order passed by the learned Tribunal came to be merged in the order passed by this Court in Tax Appeal No.653 of 2012, is it open for the assessee to prefer review application and / or challenge the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainable or not, it appears that the aforesaid question is as such now not resintegra. 8.0. Identical question came to be considered by the the Bombay High Court in the case of Chem Amit (supra) and it is held that an order passed by the Tribunal on application for rectification under Section 254(2) of the Act rejecting rectification application cannot be said to be an order passed in appeal by Tribunal within meaning of Section 260A (1) of the Act and therefore, such an order is not amenable to appeal under Section 260 A of the Act. It is also further held by the Bombay High Court that, however, where as a consequence of an order passed in rectification application under Section 254(2) amendment in order passed in appeal under Section 254(1) takes place, such amended order in appeal as a consequence of order passed in rectification application shall be amenable to appeal under Section 260 A of the Act. 9.0. While so holding the Bombay High Court in the case of Chem Amit (supra) in para 4 to 7 has observed as under: 4.What is provided by subsection (1) of section 260A is that every order passed in appeal by the Appellate Tribunal involving a substantial question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an order passed under section 254 . However, in section 260A, the Legislature has not provided an appeal to the High Court from every order passed under section 254 but has confined it to the order passed in appeal by the Appellate Tribunal. This is made clear by the use of the expression, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal . If the Legislature intended to provide an appeal to the High Court from the order passed by the Appellate Tribunal on the application for rectification under section 254(2), the Legislature would not have used the expression in section 260A that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, but instead used the expression as is used in section 256 that an appeal shall lie to the High Court from every order passed under section 254. The expression, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal in section 260A cannot be equated with the expression, an appeal shall lie to the High Court from every order passed under section 254 . In Durga Engineering and Foundry Works (2000) 245 ITR 272 (SC), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 254(1) of Act by the Tribunal and therefore, order passed under Section 254(2) of the Act is not appealable under Section 260 A of the Act. 12. A similar view has been expressed by the Calcutta High Court in Shaw Wallace Co Ltd Vs. ITAT reported in (1999) 240 ITR 579 wherein it is held as follows. .Regarding the point of s.260A, in my opinion, an appeal would not be permissible from any and every order passed by the Tribunal under this section. If, say, an order of adjournment is passed, the assessee could not come in appeal to the High Court under s.260A. There are many instances of provisions allowing appeals where words such as every order, any order, all orders, etc. have been interpreted to mean and include only those orders which are substantially final in some sense or the other, and which finally dispose of or affect the parties rights in regard to some important point in controversy. In my opinion, the words every order in s.260A means exactly this. Also to be appealable, the order of the Tribunal has to be passed in appeal. Here, the impugned order of the Tribunal was not passed in appeal, but in a miscellaneous application directed towards rectifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. On the contrary, submissions were made on merits, which came to be dealt with and considered by this Court and thereafter the Division Bench dismissed the appeal on merits confirming the order passed by the learned Tribunal which was sought to be rectified by submitting the Miscellaneous Application / Rectification Application. Once the appeal under Section 260 A of the Act against the order passed by the learned Tribunal is dismissed, there cannot be any rectification application to rectify the order passed by the Tribunal passed in appeal, as on dismissing the appeal by the High Court, the order passed by the Tribunal would be merged with that of the High Court and consequently there will not be any order passed by the Tribunal which can be rectified by the Tribunal. Identical question came to be considered by the Division Bench of this Court in the case of Nirma Industries Ltd vs. Deputy Commissioner of Income Tax reported in (2006) 283 ITR 402 (Guj) and in the said decision it is held that in case where High Court dismissed the appeal holding that no substantial question of law arise, it will not be open for the Tribunal to thereafter to consider the rectification unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that granting of leave and filing of appeal are two distinct stages and where a leave to appeal is dismissed, the Apex Court does not permit invoking the appellate jurisdiction of the Supreme Court. 24.In light of what is stated hereinbefore, and more particularly on application of the doctrine of merger, the submission that unless a substantial question of law is formulated there can be no decision of the High Court under Section 260A of the Act is an incorrect proposition. In the case of Commissioner of Incometax Vs. Cadila Chemicals Pvt. Ltd., [1998] 230 ITR 885 (Guj.) this Court has laid down: ..... When a decision on a question of law is rendered by the High Court, it will remain a binding precedent, on the doctrine of stare decisis and when an identical question of law is involved in a subsequent matter the Tribunal would be bound to follow the decision of its jurisdictional High Court and it cannot be said that a question of law arises for the opinion of the High Court from such order of the Tribunal, which has followed the High Court decision on the question which is already settled so far as it is concerned, and would be a binding precedent until recons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dismissal of appeal by this Court, rectification application would be maintainable, on issues / grounds, which came to be earlier considered by the Division Bench while deciding the Tax Appeal No.653 of 2012 under the guise of the rectification, the petitionerassessee cannot have the second round of litigation on the same ground / issue which earlier came to be considered by the Division Bench of this Court and Division Bench dismissed the appeal on merits confirming the judgment and order passed by the learned Tribunal passed in ITA No. 675 of 2010. 17. In view of the above, present petition under Article 226 of the Constitution of India is not required to be entertained, more particularly, when on the ground / issue which is sought to be canvassed, more particularly, valuation adopted by the Assessing Officer while making addition of ₹ 22,70,370/, the appeal at the instance of the very petitioner assessee against the order passed by the learned Tribunal passed in ITA No. 675 of 2010 has been dismissed on merits, this Court is not required to exercise appellate jurisdiction over the order passed by the Division Bench of this Court passed in Tax Appeal No. 653 of 2012. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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