Sunila Sahu vs Commissioner Of Income Tax
2023 Latest Caselaw 7220 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                                I.T.A. No.55 of 2023
                 Sunila Sahu                          ....             Appellant
                                                 Mr. J. Sahoo, Senior Advocate


                                          -versus-
                 Commissioner of Income Tax,          ....         Respondents
                 NFAC, Delhi and others
                                               Mr. T.K. Satapathy, Advocate
                                          Senior Standing Counsel (Revenue)

                    CORAM:

                    JUSTICE ARINDAM SINHA
                    JUSTICE SANJAY KUMAR MISHRA
                                          ORDER

Order No.                                04.07.2023

                           ITA 55 of 2023 and I.A. no.100 of 2023

    02.     1.      Mr. Sahoo, learned senior advocate appears on behalf of

applicant/appellant/assessee. He submits, there was one defect. That is omission to file certified copy of order of the Income Tax Appellate Tribunal (ITAT). His client had filed I.A. no.100 of 2023 to state on oath that certified copy of the order was not made available to his client. He obtained it from the portal. The website copy cannot be disputed.

2. Mr. Satapathy, learned advocate, Senior Standing Counsel appears on behalf of revenue. In fairness he does an oppose the submissions of Mr. Sahoo regarding removal of defect.

3. We find that the defect has been substantially removed. The application is allowed and disposed of.

4. Mr. Sahoo submits, the appeal is from order dated 13th January, 2023 made by the Income Tax Appellate Tribunal (ITAT), Cuttack Bench in MA no.23/CTK/2022 in ITA no.07/CTK/2021 for assessment year 2019-20. It be admitted on substantial questions of law arisen therein.

5. He submits, his client was appellant before the ITAT. The ITAT disposed of the appeal in favour of his client, allowing it. Subsequent to date of pronouncement of the judgment, there was a matter in which the Supreme Court delivered judgment. Revenue made misc-application on the basis of said judgment of the Supreme Court, praying for restoration of the appeal or rectifying mistake in the judgment.

6. By impugned order the ITAT said, consequent to the judgment of the Supreme Court, there is a mistake apparent. That being so, order dated 20th September, 2022 in the appeal was recalled and modified. Reproduced below are paragraphs-4 and 12 from impugned order.

"4. We have considered the submissions of the ld. Sr. DR along with the written submission of the assessee. Admittedly, in respect of the issue of payment of PF & ESI under the respective Acts, the issue is now squarely covered by the decision of the Hon'ble Supreme Court in the case of Checkmate Services (P) Ltd. (supra). Admittedly, once the Hon'ble Supreme Court decides on the legality of a particular section and the interpretation thereof, such interpretation has the effect from the date of incorporation of the said proviso. This being so, admittedly, there is a mistake apparent from the record in the order of the Tribunal. Consequently, the order dated 20.09.2022 passed by the Tribunal in ITA No.07/CTK/2022 stands recalled and restored to its original number.

xxx xxx xxx xxx

12. In the result, miscellaneous application filed by the revenue is allowed and the appeal of the assessee is partly allowed for statistical purposes."

7. He relies on order dated 11th September 2012 of the Supreme Court in Deputy Commissioner of Income Tax v. Simplex Concrete Piles (India) Ltd., reported in (2013) 11 SCC 373 to submit, the Supreme Court therein had declared that subsequent reversal of legal position by judgment of the Supreme Court does not authorize the department to reopen the assessment. He submits, following the declaration it cannot be said that subsequent judgment would create error apparent in the record, for restoration of the appeal and modification of the order by the ITAT.

8. Mr. Satapathy, on query from Court submits, the application was made consequent to decision dated 12th October, 2022 of the Supreme Court in Civil Appeal no.2833 of 2016 (Re: Checkmates Services P. Ltd. v. Commissioner of Income Tax-1 reported in (2022) 448 ITR 518 (SC). He submits further, petitioner/assessee did not appear in the application before the Tribunal. Mr. Sahoo replies, paragraph-6 in impugned order records submissions of written notes by his client.

9. Sub-section (2) in section 254 empowers the appellate Tribunal to, at any time within six months from the end of the month in which the order was passed, with a view to rectify any mistake apparent in the record, amend any order passed by it under sub-section (1). In the circumstances, substantial questions of law arise as stated below.

Does a subsequent judgment/declaration of law by the Supreme Court become an error apparent in an order passed earlier by the appellate Tribunal?

10. Let record be called for and intimation given to appellant for

preparation of paper books. Mr. Satapathy waives notice of appeal.

11. List the appeal on 7th August, 2023.

(Arindam Sinha) Judge

(S.K. Mishra) Judge

pcd

Signature Not Verified

Signed by: PADMA CHARAN DASH Reason: Authentication Location: orissa high court, cuttack Date: 05-Jul-2023 10:43:23