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TMI Blog2021 (5) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... in the revenue's Circular No. 21 of 2020, dated 04.12.2020, in our opinion, the petitioner-assessee should succeed. A plain reading of the response to FAQ no. 61 would show that it requires fulfilment of two prerequisites for an appeal to be construed as pending on the specified date [i.e., 31.01.2020] as per the provisions of the 2020 Act. i. First, the MA should be pending on the specified date, i.e., 31.01.2020. ii. Second, the said MA should relate to an appeal, which had been dismissed in limine before 31.01.2020. Insofar as the first aspect is concerned, there is no dispute that the MA was filed, and was pending on the specified date, i.e., 31.01.2020. As regards the second aspect, in our view, the order of the Tribunal dated 22.06.2020 can only be construed as an order that dismissed the revenue s appeal in limine. In our opinion, the decision taken to dismiss the revenue s appeal was based on a preliminary assessment of the facts, i.e., the outcome of the revenue s appeal preferred with the Tribunal qua the same issues in earlier AYs. There was no discussion on the merits of the case. Therefore, in our view, the petitioner-assessee should succeed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision rendered by the AO, the petitioner-assessee preferred an appeal with the Commissioner of Income Tax (Appeals) [in short CIT(A) ]. The CIT(A) allowed the petitioner s-assessee s appeal vide order dated 29.01.2016. 2.4. This time around, the revenue escalated the matter and preferred an appeal with the Income Tax Appellate Tribunal (in short 'the Tribunal'). The Tribunal dismissed the appeal of the revenue vide order dated 22.06.2018. While dismissing the appeal, in the operative part of its order, the Tribunal made the following observations: 7. We have heard the Ld. DR and it is a matter of record that CIT(A) has proceeded on the footing that in A.Ys. 2008-09, 09-10 and 2010-11 identical issue was decided in favour of the assessee. The CIT (A) held as under: 10.7 Facts of the case during the year are identical to AY 2008-09, 09-10 and 2010-11. Therefore, respectfully following the order of CIT (A) dated 16.09.2011 for AY 2008-09 and for AY 2009-10 and 2010-11, it is held that deduction u/s 80IC is allowable to the assessee of ₹ 1,88,63,283/- on the net profit arising in 1st, 2nd and 3rd category and, therefore, addition to the extent of which mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order dated 22.06.2018 for A.Y.2011-12 while rejecting the appeal of revenue, on the basis of earlier orders of Ld. CIT(A) for A.Yrs 2008-09 and 2009-10. Ld ITAT ignored its own orders in the case of the assessee for A.Y.2008-09 2009-10 where it has upheld the action of the AO and reversed the order of the Ld. CIT(A) and had decided in favor of Revenue. Thus, a mistake has been crept into said order dated 22.06.2018 passed by the Ld. ITAT which requires rectification. 3. The Ld. AR agreed to the contentions of the Ld. DR and requested that the matter may be restored for hearing. 4. We have heard both the parties and perused the material available on record. From the perusal of the order, the contentions taken by the Revenue appears to be correct. The Ld. AR also agrees with the same. Therefore, the Miscellaneous Application filed by the Revenue is allowed and the appeal is restored for fresh hearing before the Tribunal on 06.07.2020. The registry is directed to place the ITA No. 1347/Del/2016 for hearing on 06.07.2020. Both the parties be informed accordingly. The Misc. Application is allowed. [Emphasis is ours] 3. We are informed that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed, taking into account all the facts and circumstances of the case. Analysis and Reasons: 8. We have heard the learned counsel for the parties and also perused the record. What emerges, and qua which there can be no dispute, is the following: (i) The AO passed the assessment order on 21.03.2014 for the AY 20112012. Via this order, there was an appreciable enhancement, as noticed above, in the taxable income of the petitioner-assessee. (ii) The petitioner-assessee preferred an appeal, for the said AY, before the CIT(A), which was allowed on 29.01.2016. The revenue filed an appeal on 10.03.2016 before the Tribunal. The appeal was, however, dismissed by the Tribunal on 22.06.2018, based on a mistake of fact. Revenue s appeal was dismissed by the Tribunal under the mistaken belief that in the earlier AYs, it had taken a view against the revenue and in the favour of the assessee. (iii) This obvious mistake, once brought to the notice of the Tribunal, via a MA preferred by the revenue, was rectified vide order dated 11.05.2020. (iv) The MA was filed before the specified date, i.e., 31.01.2020. As per the information available on the Tribunal s portal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the first aspect is concerned, there is no dispute that the MA was filed, and was pending on the specified date, i.e., 31.01.2020. As regards the second aspect, in our view, the order of the Tribunal dated 22.06.2020 can only be construed as an order that dismissed the revenue s appeal in limine. In our opinion, the decision taken to dismiss the revenue s appeal was based on a preliminary assessment of the facts, i.e., the outcome of the revenue s appeal preferred with the Tribunal qua the same issues in earlier AYs. There was no discussion on the merits of the case. Therefore, in our view, the petitioner-assessee should succeed on this ground alone. 9.5. Besides this, we are also of the view, that in the given facts and circumstances, the order dated 11.05.2020 would have to be construed, metaphorically, as one breathing life into a dead appeal, in the light of the doctrine of relation back 1 [See: Commissioner of Income-Tax vs. Haryana Sheet Glass Ltd., 2009 SCC OnLine Del 4226]. As alluded to above, the order dated 11.05.2020 rectified the Tribunal s earlier order dated 22.06.2018, as according to the Tribunal, a mistake, apparent on the face of the record, had occur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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