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TMI Blog2021 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fact has also been accepted by the assessee in the submission filed before the settlement commission. 2. On the basis of findings during the Survey, notice u/s 148 of the IT Act was issued to the assessee for AYs 1999-2000 to 2005-06. The details are as under: A.Y. Date of Notice Section 1999-2000 01/12/2005 148 2000-01 01/12/2005 148 2001-02 01/12/2005 148 2002-03 01/12/2005 148 2003-04 01/12/2005 148 2004-05 24/10/2005 143(2) 2005-06 20/03/2006 143(2) 2.1 The assessment proceeding for A.Ys 2005-06 was completed by the AO on 28.12.2007 and in the assessment order passed following additions was made: Sr. No. A.Y. Addition made in the assessment order (In Rs.) 1 2005-06 Unexplained unsecured loan 11211571/- Fall in GP 41691213/- Unaccounted cash transaction in benami account 288206524/- Unaccounted cash transaction in own bank 53129200/- Addition on account of survey 60000000/- 2.2 Being aggrieved by the order of the AO, the assessee filed appeal before LdCIT(A) on 31.01.2008 and Ld C1T(A) dismissed the appeal of the assessee. LdCIT(A) vide order dated 28.10.2009 had dismissed the appeal of the assessee with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd allowed the appeal of the assessee for the statistics purpose. 7. Since, in this case, for the assessment years 1999-2000 to 2005-06 the case have been admitted by Hon'ble Settlement Commission and proceeding u/s 245D(4) is pending before the Settlement Commissionfor passing order u/s 245D(4) of the IT Act therefore as per provision of Section 245F (2) the Settlement Commission is having exclusive jurisdiction over the assessee for the A.Ys 1999- 2000 to 2005-06. The section 245Ff2) reads as under: "Where an application made under section 245C has been allowed to be proceeded with under section 245D, the Settlement Commission shall, until an order is passed under sub-section (4) of Section 245D, have, subject to the provisions of sub-section (3) of that section, exclusive jurisdiction to exercise the power and perform the functions of an income-tax authority under this Act in relation to the case……." 8. It is apparent that in this case Settlement petition of the assessee for the year under consideration has been admitted and is pending before the Hon'ble Settlement Commission for passing order u/s 245D(4) of the IT Act, therefore, Hon'ble Settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore Ld. CIT(A) had rightly dismissed the appeal of the assessee. Since in this case the assessee had no valid order to be contested before Hon'ble ITAT, therefore the appeal filed by the assessee for A.Y. 1999-2000 to 2005-06 was not maintainable. Therefore it is humbly requested that in the present case Misc. Application may kindly be considered and the appeal filed by the assessee may kindly be dismissed because the case of the assessee has been already been admitted by Settlement Commission for A.Y. 2005-06 vide order dated 09.05.2016 and Hon'ble Settlement commission has exclusively jurisdiction over the assessee for the year under consideration." 3. The ld.Departmental Representative(Sr.DR) for the Revenue submits that in all cases the assessee approached Income Tax Settlement Commission (ITSC), Mumbai on 09.03.2006. The ITSC admitted the application of assessee on 20.02.2008 under section 245HA of the Act. Due to change in Finance Act, 2007, as the cases could not be decided by the ITSC before due date i.e. 31.03.2008, all the applications of assessee were abated. The assessee approached Hon'ble Bombay High Court by filing Writ Petition for restoration of appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee for A.Y. 1999-2000 to 2005-06 in ITA(s) No. 497 to 503/Srt/2019 vide its combined order dated 06.12.2019, set-aside the matter to the file of the Ld.CIT(A). The Revenue in its application has basically raised three grievances/objections i.e. (i) 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, (ii) the Ld.CIT(A) has dismissed the appeal on the ground for want of jurisdiction and the disposal by the Ld.CIT(A) is only for statistical purpose and it is not on appealable order and (iii) the Tribunal has relied on the order passed in ITA No.1635 to 1638 & 1655/AHD/2016 and that facts of those cases are not identical to that assessee. In those cases, applications were not admitted by the ITSC, whereas in case of assessee applications have been admitted before ITSC. 6. The Ld.AR for the assessee submits that he is answering to the alleged third issue first. The ld. AR submits that ld. DR submitted that facts in case of ITA No.1635 to 1638 and 1655/AHD/2016 in Krit M Patel (HUF) & others (supra), decided by the Tribunal are not identical. The Ld.AR for the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act as amended/inserted by Finance Act, 2007. After admitting the writ petitions of the Group members, interim order was passed by Hon'ble Bombay High Court in case of Shri Rajendra Lakhotia vide order dated 13-10-2008 (Combined order for 18 petitioners). He also drew our attention towards interim order para 2 of Hon'ble High Court dated 06-03-2009, wherein their lordship issued directions to the Respondent No.1, 3 & 4 which reads as follows : "All these petitions were admitted on 30/4/2008 and the matters was adjourned for interim relief. Admittedly, no action has been taken against the petitioners till date. In the circumstances of the case, respondent Nos., 1,3& 4 are directed not to give effect and/or to act upon and/or take cognizance of the said abatement of the settlement petitions, during the pendency of the writ petition." 9. The ld.Authorised Representative submits that in para 9 page 9 and on page 33 on para 21 in case Kirit M Patel in ITA No. 1639/Ahd/2016/Srt dated 29.05.2018, the Tribunal concluded as under: Page 3, Para 9: " It is very appropriate and necessary to take respectful cognizance of in team order of Hon'ble High Court of Bombay, and we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l get exclusive jurisdiction to decide the cases and the AG will not be required to act further in any manner. ii) In case the Hon'ble Bombay High Court uphold the abatement order of the settlement commission then, the AO will get the jurisdiction to decide and re frame assessment afresh after allowing due opportunity of hearing to the assessee." 10. The ld.AR for the assessee by referring the aforesaid observations of the Tribunal submits that it can be seen from the above referred orders and that due to the operation above stated interim relief granted by the Hon'ble Bombay High Court, no cognizance is to be taken of the abatement order. The case is remained pending before the ITSC until Writ Petitions are decided by Hon'ble Bombay High Court. The Tribunal after considering the interim relief granted by Hon'ble Bombay High Court, has set-aside the matter with certain direction. The cases of assessee are similar to the facts before the Tribunal in case of Kirit M. Patel bearing no.1639, 1821 and 1822/AHD/2016 and 678/AHD/2015 and other group cases which were decided by the Tribunal, hence, the Tribunal in the present case has made no mistake, much less apparent mistake whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout prejudice submission, the ld.AR for the assessee submits that a plain reading of section 254F(2) of the Act, it is clear that exclusive jurisdiction to exercise the power and performance the function of Income Tax Authority under the Act, in relation to 'case' as defined in section 245(A)(b) of the Act lies with ITSC on admission of application till order is passed under section 245D(4) of the Act. From the reading of section 116 of the Act, it is clear that Income Tax Appellate Tribunal(Tribunal) is not an 'Income Tax Authority' and therefore, ITSC by virtue of section 254F(2) of the Act cannot superceed the power of the Tribunal. The ld.AR for the assessee further submits that the entire cases of the Revenue in the present Miscellaneous Application is that the Tribunal has no jurisdiction to decide the appeal as matter is pending before the ITSC and same constitute mistake apparent from record in the order passed by the Hon'ble Tribunal. The assessee filed its application before the ITSC on 06.03.2006 for A.Y. 1999-2000 to 2005-06. The ld.CIT(A) while deciding the appeal for A.Y. 1999-200 to 2004-05 on 06.09.2007 held that he has no jurisdiction to decide the appeal as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions in writing, repeating the same submissions, which we have narrated above. The submission of both the parties were taken on record. 17. We have considered the submission of both the parties and have gone through the order of the Tribunal dated 06.12.2019. Our predecessor while deciding the appeal of assessee for A.Y. 1999-2000 to 2005-06 in ITA No.497 to 503 and 527/SRT/2019, condoned the delay of 4378 days. While condoning the delay, our predecessor relied on the order of the Co-ordinate Bench in Arvindbhai Mohabhai & Krit M Patel (HUF) in ITA No.1635 to 1638 and 1655/AHD/2016. Admittedly, after condoning the delay, the appeals were restored to the file of the Ld.CIT(A) by following the order in ITA No.1635 to 1638 and 1655/AHD/2016. The Tribunal has not decided the issue on merit rather restore all the appeals to the file of ld.CIT(A). The revenue has not pointed out mistake in condoning the delay in filing of the appeals. 18. Basically, the Revenue in its present application has raised three objections i.e. number (i) 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 adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 bearing no.1639, 1821 and 1822/AHD/2016 and 678/AHD/2015 dated 29.05.2018. Thus, the grievance of the revenue as raised in objection no. (iii) is also misplaced. 21. At the time of making submission the ld. DR for the revenue made reliance on the decision of Cochin Tribunal in JC Augustine (supra), 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. 22. As noted above the revenue has raised identical contentions as raised in MA No.37/Srt/2020, which we have dismissed, considering the commonalty of the facts and similar contentions wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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