Jambeswar Jena (Deceased) vs Commissioner Of Income Tax
2023 Latest Caselaw 7243 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                                I.T.A. No.54 of 2023
              Jambeswar Jena (Deceased)               ....             Appellant
              represented by his legal heir
              Manoranjan Jena
                                                 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 54 of 2023, I.A. no.99 of 2023 and I.A. no.91 of 2023

02. Mr. Sahoo, learned senior advocate appears on behalf of applicant/appellant/assessee. He submits, there were two defects. Firstly, omission to file certified copy of order of the Income Tax Appellate Tribunal (ITAT). His client had filed I.A. no.99 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. On the second defect his client had filed application for condonation of delay of eighteen days. He submits, since certified copy was not filed, calculation by the stamp reporter has not been made. In the circumstances, condonation prayed in the application be allowed.

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 defects.

3. We find that the defects have been substantially removed. The applications are allowed and disposed of.

4. Mr. Sahoo submits, the appeal is from order dated 30th December, 2022 made by the Income Tax Appellate Tribunal (ITAT), Cuttack Bench in MA no.16/CTK/2022 in ITA no.02/CTK/2021 for assessment year 2018-19. 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 6th April, 2022 in the appeal was recalled and modified. Reproduced below are paragraphs-5 and 8 from impugned order.

"5. The law laid down by the Hon'ble Supreme Court is the law of the land as it is to be understood from the incorporation of the provisions. Consequently, there is a mistake apparent from the order of the Tribunal dated 6.4.2022. This being so, the order of the Tribunal dated 6.4.2022 is recalled and the M.A. filed by the revenue stand allowed.

xxx xxx xxx xxx

8. In the result, M.A. filed by the revenue stand 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