Allahabad H.C : The ITAT is empowered under section 254(2) of the Income-tax Act to recall its order finally deciding the appeal for the reasons other than those dealt in under rules 24 and 25

High Court Of Allahabad

CIT vs. Dr. Ashok Kumar Shukla

Assessment Year : 2002-03

Section : 268A, 260A

Rajiv Sharma And Dr. Satish Chandra, JJ.

IT Appeal No. 112 Of 2009

May  27, 2013

JUDGMENT

1. Heard learned counsel for the parties and perused the records.

2. Through the instant appeal under section 260A of the Income-tax Act, 1961, the appellant challenges the judgment and order dated April 22, 2009, passed by the Income-tax Appellate Tribunal, Lucknow Bench, Lucknow in Miscellaneous Application No. 12/LUC/2009, arising out of I.T.A. No. 707/LUC/2006 for the assessment year 2002-03.

3. The instant appeal have been admitted by an order dated September 8, 2009, on the following substantial question of law :

“I. Whether the Income-tax Appellate Tribunal is empowered under section 254(2) of the Income-tax Act to recall its order finally deciding the appeal for the reasons other than those dealt in under rules 24 and 25 of the Income-tax (Appellate Tribunal) Rules, 1963 ?

II. Whether, under the facts and in the circumstances, the learned Income-tax Appellate Tribunal has erred in law in recalling its order dated July 27, 2007, without appreciating that issues raised in miscellaneous applications are outside the scope of mistake apparent from record ?

III. Whether, under the facts and in the circumstances of case, the learned Income-tax Appellate Tribunal has erred in law in recalling their order dated July 27, 2007, without appreciating that recalling of order necessitates rehearing, readjudication and passing of fresh order ?

IV. Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in recalling the order to consider the facts which it had already adjudicated and elaborately discussed in its order dated July 27, 2007 ?”

4. When the matter is taken up, Mr. Rohit Nandan Shukla, appearing on behalf of the respondent-assessee, prays for dismissal of the appeal only on the ground that in view of insertion of section 268A of the Income-tax Act, by the Finance Act, 2008, with retrospective effect from April 1, 1999, read with the notification of the Central Board of Direct Taxes dated May 15, 2008, fixing the monetary limit for filing the appeal, this appeal is not fit to be entertained and adjudicated.

5. It is not in dispute that tax/revenue effect in the instant appeal is less than Rs. 4,00,000. It is further not in dispute that the Central Board of Direct Taxes, vide notification dated May 15, 2008, had decided not to make any reference before the High Court where the revenue effect is less than Rs. 4,00,000.

6. It has been pointed out by Mr. Shukla that the instruction issued by the Board fixing monetary limits for filing appeal and application for reference shall be deemed to have been issued under sub-section (1) of section 268A of the Income-tax Act in view of the provisions made in section 268A(5) of the Act. Hence, according to Mr. Shukla, the instant appeal involving tax effect of less than Rs. 4,00,000 deserves to be thrown out on the ground that it violates the Board’s instruction.

7. It is worth mentioning that the instruction of the Central Board of Direct Taxes dated May 15, 2008, shall be deemed to have issued under section 268A(1) of the Income-tax Act, 1961, in view of section 268A(5) of the Act. Thus, the instruction dated May 15, 2008, fixing monetary limit for filing appeal has statutory flavour and in the background thereof we are of the opinion that this appeal is incompetent.

8. In the result, we dismiss this appeal on the aforesaid ground alone, but without any order as to costs. Interim order, if any, stands vacated.

[Citation : 356 ITR 697]

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