Bombay High Court
Kantilal Gopalji Kotecha vs The Chief Commissioner Of Income ... on 28 January, 2022
Bench: K.R. Sriram, N. J. Jamadar
WP-247-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 247 OF 2020
Digitally
signed by
Kantilal Gopalji Kotecha
SHRADDHA
SHRADDHA KAMLESH
Aged 76 years, Occupation : Service
KAMLESH TALEKAR
TALEKAR Date: of Mumbai Indian Inhabitant
residing at 2, Sanskar, Ground Floor,
2022.01.29
16:25:26
+0530
Road No. 8, JVPD
Scheme, Vile Parle (West),
Mumbai - 400 049. ...Petitioner
vs.
1. The Chief Commissioner of Income Tax-4,
having offce at
Aaykar Bhavan, M.K. Road,
Mumbai - 400 020.
2. The Pr. Commissioner of Income Tax-8,
having offce at
Aaykar Bhavan, M.K. Road,
Mumbai - 400 020.
And
3. The Income Tax Offcer-8(2)(4),
having offce at
Aaykar Bhavan, M.K. Road,
Mumbai - 400 020. ...Respondents
Mr.Vipul Shah i/b L.C. Tolat & Co. for petitioner.
Mr.Akhileshwar Shama for respondents-Revenue.
CORAM : K.R. SHRIRAM &
N. J. JAMADAR, JJ.
DATE : 28th JANUARY, 2022
(THROUGH VIDEO CONFERENCE)
ORDER :
1. The challenge in this petition is to an order passed by
Shraddha Talekar, PS 1/7
WP-247-2020.doc
Income Tax Appellate Tribunal, Mumbai ('ITAT'), dated 5 th July
2019 in Miscellaneous Application No. 216/Mum/2017, whereby
the application preferred by the petitioner/applicant-assessee
seeking recall of the order passed by the ITAT in I.T.A.T Appeal No.
6903/Mum/2012, dated 6th June 2014 (for the Assessment Year
2009-10) came to be dismissed.
2. Shorn of superfueities, the background facts leading to this
petition, can be stated as under :
2.1 The petitioner, an individual, is a Senior Citizen.
The petitioner was the proprietor of a proprietary
concern M/s. Overseas Plastic Moulders (OPM). In
Assessment Year 2009-10, the petitioner converted the
said proprietary concern into a Public Limited
Company under the name and style, 'M/s. Overseas
Plastic Moulder India Limited (OPMIL). The petitioner
claimed exemption under section 47(xiv) of the Income
Tax Act, 1967 ('the Act, 1967'). The Assessing Offcer
passed an Assessment Order on 30 th November 2011
and disallowed the claim for exemption.
Shraddha Talekar, PS 2/7
WP-247-2020.doc
2.2 Being aggrieved, the petitioner preferred an
appeal before the Commissioner of Income Tax, being
Appeal No.CIT(A)-17/IT-322/2011-12, which came to be
dismissed by order dated 4th October 2012.
2.3 Being further aggrieved, the petitioner preferred
appeal before ITAT, being I.T.A.T Appeal No.
6903/Mum/2012, which came to be dismissed by ITAT.
Dissatisfed, the petitioner preferred appeal, being
Income Tax Appeal No. 1731 of 2014, before this Court.
The said appeal was dismissed by this Court by an
order dated 18th July 2016.
2.4 A Special Leave Petition, being Special Leave to
Appeal (C) No.23753/2016, before the Supreme Court
met the same fate, on 17th August 2016.
2.5 Unsatiated, the petitioner sought review of the
order passed by this Court in Review Petition (L.) No.
36 of 2016 in Income Tax Appeal No. 1731 of 2014. The
review petition also came to be dismissed by order
Shraddha Talekar, PS 3/7
WP-247-2020.doc
dated 9th February 2017.
2.6 Undaunted by a half a dozen dismissals, the
petitioner preferred an application under section 254(2)
of the Act, 1961 before the ITAT to recall the order
whereby the appeal (I.T.A.T Appeal No.
6903/Mum/2012) was dismissed.
2.7 By the impugned order, dated 5th July 2019, the
ITAT was persuaded to dismiss the application holding,
inter-alia, that there was no mistake apparent on the
record in the order sought to be recalled. It was further
observed that the scope of rectifcation under section
254(2) of the Act, 1961 was limited and thus the ITAT
would not be justifed in exercising the power to recall
the order thereunder.
2.8 Being aggrieved, the petitioner has again invoked
the writ jurisdiction of this Court.
3. We have heard Mr.Vipul Shah, the learned counsel for the
Shraddha Talekar, PS 4/7
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petitioner and Mr.Akhileshwar Sharma, the learned counsel for
the revenue.
4. Mr. Vipul Shah made a strenuous effort to persuade us to
delve into the merits of the controversy. An effort was made to
demonstrate that the ground which the petitioner has raised had
not been properly appreciated in any of the proceedings hitherto
initiated by the petitioner.
5. We decline the invitation to embark upon an inquiry on the
merits of the matter as the petitioner has to surmount two
apparently insuperable impediments.
6. First, the order passed by the Assessing Offcer, which was
subject matter of as many as three appeals, attained fnality with
the dismissal of the Special Leave Petition. The underlying order of
which recall was sought, i.e., the order passed by the ITAT, was
upheld by this Court and even a petition to review the order
passed by this Court affrming the order of the ITAT, came to be
dismissed. On frst principle, a party who prefers a substantive
appeal is not entitled to seek the review of the very same order,
Shraddha Talekar, PS 5/7
WP-247-2020.doc
which is impugned in appeal. In the case at hand, the petitioner
ventured to recall the order passed by ITAT after it attained
fnality.
7. Second, as rightly pointed out by Mr.Akhileshwar Sharma,
section 254(2) of the Act, 1961 does not empower the ITAT to
recall the order. The ITAT is empowered to rectify any mistake
apparent from the record only. In Miscellaneous Application No.
216/Mum/2017, the petitioner specifcally prayed for the recall the
order passed by the ITAT, in I.T.A.T Appeal No.6903/Mum/2012.
8. In a recent decision in the case of Commissioner of Income-
tax (IT-4), Mumbai Vs. Reliance Telecom Ltd. 1, the Supreme Court
has disapproved the approach of the ITAT in recalling its order by
invoking sub-section (2) of section 254 of the Act, 1961. It was,
inter-alia, observed that the said exercise was beyond the scope
and ambit of the powers under section 254(2) of the Act, 1961.
Paragraph 3.2 of the judgment reads as under :
"3.2 Having gone through both the orders passed
by the ITAT, we are of the opinion that the order
passed by the ITAT dated 18.11.2016 recalling its
earlier order dated 06.09.2013 is beyond the scope
and ambit of the
1 [2021] 133 taxmann.com 41(SC)
Shraddha Talekar, PS 6/7
WP-247-2020.doc
powers under Section 254(2) of the Act. While allowing
the application under Section 254(2) of the Act and
recalling its earlier order dated 06.09.2013, it appears
that the ITAT has re-heard the entire appeal on merits
as if the ITAT was deciding the appeal against the
order passed by the C.I.T. In exercise of powers under
Section 254(2) of the Act, the Appellate Tribunal may
amend any order passed by it under sub-section (1) of
Section 254 of the Act with a view to rectifying any
mistake apparent from the record only. Therefore, the
powers under Section 254(2) of the Act are akin to
Order XLVII Rule 1 CPC. While considering the
application under Section 254(2) of the Act, the
Appellate Tribunal is not required to re-visit its earlier
order and to go into detail on merits.
The powers under Section 254(2) of the Act are only to
rectify/correct any mistake apparent from the record."
9. Even otherwise, from the perusal of the impugned order, it
becomes evident that the ITAT has correctly applied the principle
that under the guise of rectifcation of an error, a party cannot be
permitted to recall the order on merits. Thus, no fault can be
found with the impugned order. We are, therefore, not inclined
exercise the extraordinary writ jurisdiction.
10. Resultantly, the petition deserves to be dismissed and,
accordingly, stands dismissed.
11. No costs.
(N. J. JAMADAR, J.) (K.R. SHRIRAM, J.)
Shraddha Talekar, PS 7/7
