IT: In view of appeal admitted by High Court against order of Tribunal, Tribunal's subsequent order recalling said order was to be quashed
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[2013] 38 taxmann.com 110 (Gujarat)
HIGH COURT OF GUJARAT
Commissioner of Income-tax-III
v.
Muni Seva Ashram*
M.R. SHAH AND MS. SONIA GOKANI, JJ.
TAX APPEAL NOS. 609 OF 2012 & 661 OF 2013†
JULY 24, 2013
Section 254, read with section 260A, of the Income-tax Act, 1961 - Appellate Tribunal - Powers of [Power to recall] - Tribunal passed order - Assessee preferred appeal which had been admitted by High Court and question of law had been framed - In mean time, Tribunal passed order, recalling its own order - Revenue challenged same in instant appeals - Whether in view of pending appeal before High Court, subsequent orders of Tribunal was to be set aside - Held, yes [Para 8] [In favour of revenue]
K.M. Parikh for the Appellant. Manish J. Shah for the Respondent.
JUDGMENT
M.R. Shah, J. - Both these appeals are admitted. Mr. Manish J. Shah, learned advocate, who is on Caveat in Tax Appeal No.609 of 2012, waives the service of notice of admission on both these appeals.
2. With the consent of the learned advocates appearing on behalf of the respective parties, both these appeals are taken up for final hearing today.
3. Tax Appeal No.661 of 2013 has been preferred by the appellant - revenue challenging the impugned order passed by the learned Income Tax Appellate Tribunal dtd. 12/6/2009 passed in Misc. Application Nos.181 & 199/AHD/2008, by which the learned tribunal has allowed the Misc. Application submitted on 5/9/2008 and consequently recalled the earlier order dtd. 11/7/2008 of the tribunal passed in ITA No.633/Ahd/2008.
4. Tax Appeal No.633 of 2013 has been preferred by the revenue challenging the impugned judgement and order dtd. 30/3/2012 passed by the learned appellate tribunal in ITA No.633/Ahd/2008, which has been passed by the appellate tribunal after order dtd. 12/6/2009 passed in Misc. Application Nos.181 & 199/Ahd/2008, by which the appellate tribunal recalled the earlier order dtd. 11/7/2008 passed in the aforesaid ITA No.633/Ahd/2008 and restored the aforesaid appeal to file (which is the subject matter of Tax Appeal No.661 of 2013).
5. Considering the fact that against the earlier judgement and order dtd. 11/7/2008 passed by the ITAT in ITA No.633/Ahd/2008 (which has been subsequently recalled by the tribunal by passing order dtd. 12/6/2009 passed in Misc. Application No.519 of 2008) (which is the subject matter of Tax Appeal No.661 of 2013), the assessee had already preferred Tax Appeal No.1231 of 2008 which has been admitted by the Division Bench of this Court vide order dtd. 11/5/2009, Mr. J.P. Shah, learned counsel appearing on behalf of the respondent - assessee has stated at the bar that the impugned orders passed by the appellate tribunal dtd. 12/6/2009 as well as the subsequent order dtd.30/3/2012 passed in ITA No.633/Ahd/2008, be quashed and set aside and he does not invite further reasoned order, however, has stated that the same shall be without prejudice to the rights and contentions of the assessee in Tax Appeal No.1231 of 2008.
6. In view of the above stand taken by the learned counsel appearing on behalf of the respondent - assessee recorded hereinabove, more particularly when against the impugned judgement and order dtd. 11/7/2008 passed in ITA No.633/Ahd/2008, which has been recalled subsequently by the ITAT, Tax Appeal No.1231 of 2008, was already admitted on the substantial questions of law framed in the said appeal, impugned orders cannot be sustained.
7. In view of the above stand taken by the learned counsel appearing on behalf of the respondent - assessee, recorded hereinabove, we are not passing any further reasoned order.
8. In view of the above, both these Tax Appeals are allowed and the impugned order passed by the ITAT dtd. 12/6/2009 on the Misc. Application submitted by the assessee on 5/9/2008 (which is subject matter of Tax Appeal No.661 of 2013) as well as subsequent order passed by the ITAT dtd. 30/3/2012 passed in ITA No.633/Ahd/2008 (which is subject matter of Tax Appeal No.609 of 2012), are hereby quashed and set aside. However, it is observed that the same shall be without prejudice to the rights and contentions of the respective parties in Tax Appeal No.1231 of 2008 and the said Tax Appeal No.1231 of 2008 be decided on merits on the questions which are raised while admitting the aforesaid Tax Appeal No.1231 of 2008.
9. With this, both these Tax Appeals are allowed. In the facts and circumstances of the case, there shall be no order as to costs.
SBRegards
Prarthana Jalan
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