September 2019

Section 254(2) – If the appeal against the order of the Tribunal has already been admitted and a substantial question of law has been framed by the Hon’ble High Court, the Tribunal cannot proceed with the Miscellaneous Application u/s 254(2) of the Act

Jagdish D. Shah | Jagdish T. Punjabi
Chartered Accountants

14.  Ratanlal C. Bafna vs. JCIT ITAT Pune; Members: Anil Chaturvedi (AM) and Vikas Awasthy (JM) MA No. 97/Pune/2018 in ITA No. 204/Pune/2012 A.Y.: 2008-09 Date of order: 15th March, 2019; Counsel for Assessee / Revenue: Sunil Ganoo / Ashok Babu

 

Section 254(2) – If the appeal against the order of the Tribunal has already been admitted and a substantial question of law has been framed by the Hon’ble High Court, the Tribunal cannot proceed with the Miscellaneous Application u/s 254(2) of the Act

 

FACTS

For the captioned assessment year, the assessee preferred an application u/s 254(2) against the order of the Tribunal in ITA No. 204/Pune/2012 for A.Y. 2008-09 on the ground that while adjudicating the said appeal the Tribunal had not adjudicated ground No. 12 of the appeal, although the same was argued before the Bench.

 

Aggrieved by the order of the Tribunal in ITA No. 204/Pune/2012 for A.Y. 2008-09, the assessee had preferred an appeal to the Bombay High Court which was admitted by the Court vide order dated 26th November, 2018 (in ITA No. 471 and 475 of 2016) for consideration of substantial question of law.


Since the present M.A. was the second M.A. against the impugned order of the Tribunal, the Bench raised a query as to whether a second M.A. is maintainable since the first M.A. against the same order has been dismissed by the Tribunal. In response, the assessee submitted that the second M.A. is maintainable because it is on an issue which was not a subject matter of the first M.A. For this proposition, reliance was placed on the decision of the Kerala High Court in CIT vs. Aiswarya Trading Company (2011) 323 ITR 521, the decision of the Allahabad High Court in Hiralal Suratwala vs. CIT 56 ITR Page 339 (All.) and the decision of the Gujarat High Court in CIT vs. Smt. Vasantben H. Sheth (2015) 372 ITR 536 (Guj.).

 

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