COMMISSIONER OF INCOME TAX III vs. MUNI SEVA ASHRAM
What did the High Court hold?
The High Court allowed both appeals. The Court noted that the assessee had already preferred Tax Appeal No. 1231 of 2008 against the ITAT's original order dated 11/07/2008 (which was later recalled) and that this appeal had been admitted on substantial questions of law. In light of the stand taken by the assessee's counsel, who requested the impugned orders to be quashed and set aside without inviting a reasoned order, the Court found that the impugned orders could not be sustained. Consequently, the ITAT's order dated 12/06/2009 (allowing miscellaneous applications and recalling the earlier order) and the subsequent order dated 30/03/2012 were quashed and set aside. The Court clarified that this decision would be without prejudice to the rights and contentions of the parties in Tax Appeal No. 1231 of 2008, which would be decided on its merits.
What were the facts?
The Revenue filed two appeals before the High Court of Gujarat. Tax Appeal No. 661 of 2013 challenged an order dated 12/06/2009 by the Income Tax Appellate Tribunal (ITAT) which allowed the assessee's miscellaneous applications and recalled the ITAT's earlier order dated 11/07/2008 in ITA No. 633/Ahd/2008. Tax Appeal No. 609 of 2012 challenged a subsequent order dated 30/03/2012 by the ITAT in ITA No. 633/Ahd/2008, which was passed after the recall order. The assessee had already filed Tax Appeal No. 1231 of 2008 against the ITAT's original order dated 11/07/2008, which was admitted by the High Court.
What were the issues?
1. Whether the impugned orders passed by the ITAT, namely the order dated 12/06/2009 allowing miscellaneous applications and recalling its earlier order, and the subsequent order dated 30/03/2012 in ITA No. 633/Ahd/2008, are sustainable in law? (Question of law) Assessee's Contention: The learned counsel for the assessee stated that since Tax Appeal No. 1231 of 2008, filed against the ITAT's original order dated 11/07/2008 (which was subsequently recalled), had already been admitted by the High Court on substantial questions of law, the impugned orders of the ITAT should be quashed and set aside. The assessee did not invite a reasoned order but stated that this would be without prejudice to their rights and contentions in Tax Appeal No. 1231 of 2008. Revenue's Contention: Not recorded in the judgment.
AI-generated summary — verify with the full judgment below
O/TAXAP/661/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 661 of 2013 With TAX APPEAL NO. 609 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/- and HONOURABLE MS JUSTICE SONIA GOKANI Sd/- ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ================================================================ COMMISSIONER OF INCOME TAX III....Appellant(s) Versus MUNI SEVA ASHRAM....Opponent(s) ================================================================ Appearance: MR KM PARIKH, ADVOCATE for the Appellant(s) No. 1 MR MANISH J SHAH, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MS JUSTICE SONIA GOKANI Date : 24/07/2013 ORAL JUDGMENT Page 1 of 4
O/TAXAP/661/2013 JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. 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. 2.00. With the consent of the learned advocates appearing on behalf of the respective parties, both these appeals are taken up for final hearing today. 3.00. 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. 4.00. 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). 5.00. Considering the fact that against the earlier Page 2 of 4
O/TAXAP/661/2013 JUDGMENT 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. 6.00. 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. 7.00. 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. 8.00. In view of the above, both these Tax Appeals are Page 3 of 4
O/TAXAP/661/2013 JUDGMENT 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. Sd/- (M.R.SHAH, J.) Sd/- (MS SONIA GOKANI, J.) Rafik
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