Infantry Security and Facilities vs The Income Tax Officer (Bombay High Court)
| COURT: | Bombay High Court |
| JUDGES: | ADVAIT M. SETHNA J, G. S. KULKARNI J |
| LEGISLATION(S): | Income-Tax Act 1961 |
| COUNSEL: | Madhavi M. Tavanandi, Vikas T. Khanchandani |
| FILE: | Click here to download the file in pdf format |
| Even the change in law or subsequent decision/judgment of coordinate Bench or larger Bench by itself cannot be regard as a ground for review or rectification. There is no mistake apparent from the record. The Tribunal has no power to condone delay if the Miscellaneous Application was to be filed beyond a period of six months. | |
In Checkmate Services Private Limited vs. Commissioner of Income Tax 2022 (448) ITR 518 (SC) the Supreme Court has held that deduction of employees share can be allowed under Section 36(1)(va), only if, it is deposited before the time limit under the respective statute and not before the due date under Section 139(1) of the IT Act.
However, the Tribunal was wrong in relying upon this judgement and allowing the Miscellaneous Application filed by the Revenue because:
(i) The jurisdiction of the Tribunal under Section 254(2) is akin to the jurisdiction of the Civil Court of a review in terms of Order XLVII, Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 (“CPC ” for short) and hence it is only when there is an error apparent on the face of the order, it can be corrected by the Tribunal in exercise of its jurisdiction under Section 254(2);
(ii) This is not a case where the existing position in law was not noticed by the Tribunal in rendering its decision on the petitioner’s appeals in passing order dated 26 July 2022, as the decision of the
Supreme Court as relied by the Revenue in the case of Checkmate Services Private Limited (Supra), was rendered subsequent to the decision of the Tribunal i.e. on 12 October 2022. In this view of the matter, the subsequent judgment being rendered by the Supreme Court, cannot be a ground to invoke the provisions of Section 254(2) of the IT Act. The only remedy for the Revenue would be to assail the orders passed by the Tribunal in an appeal to be filed before the High Court under Section 260A of
the IT Act.
(iii) In any event, the locus to file Miscellaneous Application in terms of Section 254(2), was available provided such Miscellaneous Application was to be filed within a period of six months from the end of the month in which the order was passed by the Tribunal. The limitation of six months is prescribed and/or available by virtue of a statutory provision of sub-Section (2) of Section 254 of the IT Act. In the present case, clearly the Miscellaneous Applications were filed with a delay of 92 days. Therefore, in terms of Section 254(2), the Miscellaneous Application was per se barred by limitation.
Commissioner of Income Tax (IT-4) vs. Income Tax Appellate Tribunal [2017] 85 taxmann.com 42 (Bombay), Deputy Commissioner of Income Tax vs. ANI Integrated Services Ltd [2024] 162 taxmann.com 899 (Mumbai- Tribunal) and Beghar Foundation vs. Justice K. S. Puttaswamy [2021] 123 taxmann.com 344/278 Taxman 1 (SC) referred.