Commissioner of Income Tax vs Saroop Tanneries Ltd.

S.J. Vazifdar, Acting C.J—The appeal is liable to be dismissed only on the ground that it is not maintainable in view of the judgment of the Division Bench of this court in Rani Paliwal Vs. Commissioner of Income Tax, (2003) 185 CTR 333 : (2004) 268 ITR 220 . The Division Bench held that an appeal under section 260A of the Income-tax Act, 1961 (in short "the Act") is not maintainable against the order passed by the Tribunal under section 254(2). The Tribunal had passed an order dated June 30, 2010, in M.A. No. 46 (ASR) of 2009. The Tribunal corrected a mistake on account of not having noticed the judgment of the Supreme Court in COMMISSIONER OF INCOME TAX Vs. AMALGAMATION PVT. LTD., AIR 1997 SC 2404 : (1997) 140 CTR 313 : (1997) 226 ITR 188 : (1997) 5 JT 50 : (1989) 2 JT 217 : (1997) 3 SCALE 614 : (1997) 5 SCC 33 : (1989) 3 SCC 709(1) : (1997) 3 SCR 1005 : (1989) 2 SCR 544 : (1997) 92 TAXMAN 132 : (1997) AIRSCW 2316 : (1997) 5 Supreme 382 . The Tribunal expressly recorded that the applicability of the decision cannot be adjudicated under the provisions of section 254(2), as the same is covered under section 254(1) of the Act. The respondent agrees that as and when an order is ultimately passed under section 254(1) in accordance with the order dated June 30, 2010, under section 254(2), the same would be appealable under section 260A. The appellant, therefore, is not without a remedy in the event of the order under section 254(1) being adverse to it.

The appellant filed M.A. No. 12 (ASR) of 2011 under section 254(2) of the Act against the order dated June 30, 2010, which was dismissed by the impugned order and judgment dated November 19, 2012. In view of what we have mentioned earlier, the appellant is in any event not without a remedv. However, this order in an application under section 254(2) is not appealable. Needless to add that the decision in I.T.A. No. 472 of 2009, if decided before the Tribunal decides the matter under section 254(1), would have its own effect.