Mr. JUSTICE M.R. SHAH J- As common question of law and facts arise in both these petitions and as such with respect to the same assessee, arising out of the common order but with respect to different assessment orders, both these writ petitions are head and disposed of together.
2. Feeling aggrieved and dissatisfied with the impugned common Order dated 23rd July 2015 passed by the Income Tax Appellate Tribunal, “C” Bench, Ahmedabad [hereinafter referred to as, “the Tribunal”] in Misc. Application Nos.12 & 13/AHD/2015 for Assessment Years 2006-2007 & 2007-2008, by which the Tribunal has dismissed the said Applications, the Revenue has preferred the present Special Civil Applications under Article 226 & 227 of the Constitution of India.
3. Facts leading to filing of Special Civil Applications in nutshell are as under :
3.1 That earlier, against the common order passed by the ITAT in I.T.A Nos. 2698 & 2699/Ahd/2009 for A.Y 2006-2007 & 2007-2008, the Revenue preferred Tax Appeal No. 367 of 2013 before this Court. That, vide Oral Order dated 21st October 2013, Division Bench disposed of the said Appeal by relegating the Revenue to make appropriate application before the learned Tribunal, as it was the contention on behalf of the Revenue that certain points which were raised in the Appeal memo though were raised in appeal before the Tribunal, the same were not decided by the learned Tribunal. Therefore, instead of entertaining the Tax Appeals preferred by the Revenue, the Division Bench thought it fit to relegate the Revenue to prefer R.O.M before the learned Tribunal and consequently disposed of the said Appeals by specifically observing that if such rectification applications are filed within four weeks of the date of the said order, the same shall be decided within a period of four weeks thereafter. It appears that thereafter, the Revenue preferred M.A Nos. 197 & 198/Ahd/2013 in I.T.A Nos. 2698 & 2699/ Ahd/2009 [For A.Y 2006-07 & 2007-8].
3.2 By common Order dated 26th September 2014, the learned ITAT dismissed the said Applications by observing that there is no error apparent on the face of it. That thereafter, instead of challenging the said common Order dated 26th September 2014 passed in the aforesaid M.A Nos. 197 & 198/Ahd/2013 before this Court and/or even without preferring any appeals thereafter against the original order passed by the learned ITAT in I.T.A Nos. 2698 & 2699/Ahd/2009, the Revenue again preferred M.A Nos. 12 & 13/Ahd/2015 requesting the Tribunal to rectify its earlier orders on the very grounds on which the earlier M.As were preferred. That, by impugned common Order, the learned Tribunal has rejected/dismissed the said Applications by observing that the second rectification application is not maintainable.
4. Feeling aggrieved and dissatisfied with the impugned common order dated 23rd July 2015 passed by the learned Tribunal, the petitioner-Revenue has preferred the present writ petitions under Articles 226 & 227 of the Constitution of India.
5. Heard Shri K.M Parikh, learned counsel for the petitioner- Revenue.
6. It is required to be noted that there is a specific finding recorded by the learned Tribunal by passing the impugned Order that after the earlier M.As which were dismissed by the Tribunal, the Revenue has preferred M.As again which are on the same set of facts and through which the Revenue wants the Tribunal to recall the appellate order. Therefore, the grounds set-out in the earlier M.As and the subsequent to M.As were the same and on the same set of facts. It is not in dispute that the earlier M.As came to be dismissed by the Tribunal vide Order dated 26th September 2014 and the same has attained finality. That thereafter, again on the same set of facts, which were mentioned in earlier applications, the Revenue preferred MA Nos. 12 & 13/Ahd/2015 which are dismissed by the Tribunal by observing that the second M.As on the same set of facts shall not be maintainable. Therefore, a short question which is posed for consideration before this Court is whether in the facts and circumstances of the case, the Tribunal is justified in rejecting the second M.As which were preferred on the same set of facts on which earlier M.As were preferred and the same came to be dismissed and the dismissal of the said applications had attained finality ?
7. The aforesaid question is squarely covered against the Revenue, in light of the decision of Division Bench of this Court rendered in case of Commissioner of Income-Tax v. Smt. Vasantben H. Sheth, reported in [2015] 372 ITR 536 [Guj]. The Division Bench of this Court in the case of Commissioner of Income-Tax v. Vasantben H Sheth [Supra] has specifically observed that second rectification application on the same grounds on which earlier application were made shall not be maintainable. In the aforesaid decision, Division Bench had an occasion to consider decision of Punjab & Haryana High Court in case of CIT v. Pearl Woolen Mills, reported in [2011] 330 ITR 164 [P&H]; decision of Madras High Court in case of CIT v. Panchu Arunachalam, reported in [2010] 323 ITR 31 [Madras] as well as decision of Kerala High Court in the case of CIT v. Aiswarya Trading Company, reported in [2011] 331 ITR 521 [Kerala]. After considering the aforesaid decisions and the other decisions on the point, Division Bench has observed and held in para 17 as under :-
“Considering the aforesaid decision of the Punjab & Haryana High Court, Madras High Court and Kerala High Court, and applying the same to the facts of the present case on hand, when the first rectification application was rejected by the Tribunal, the second rectification application on the same issue was not maintainable at all. Under the circumstances, the learned Tribunal has materially erred in entertaining the second rectification application and passing the impugned order of re-calling its earlier order in exercise of powers under section 254(2) of the Act. Once the second rectification application on the same issue was not maintainable, the learned Tribunal erred in entertaining the application and allowing the same.”
8. In view of the above and for the reasons aforestated, it cannot be said that the learned Tribunal has committed error in rejecting the second rectification applications preferred by the Revenue.
9. Under the circumstances, there is no substance in the present petitions and the same deserve to be dismissed and are accordingly dismissed.