While reversing the order of the CIT(A) the Tribunal is duty bound to examine and discuss the reasons given by the CIT(A) to hold one way or the other and then to dispel those reasons. If the Tribunal fails to make such an exercise the judgment will suffer from serious infirmity.[Para 15] Assuming that another view was possible, that itself would be no ground to interfere with the order of the CIT(A) by ITAT unless it is shown that the appreciation of evidence by the CIT(A) was either perverse or untenable and that in holding in favour of the assessee the CIT(A) either ignored material evidence or that the view taken by him was patently untenable.[Para 17 of Judgement] Prahlad Bhattacharya [2016] 71 taxmann.com 63 (Calcutta) MARCH 4, 2016

Old and Gold Rule of Law reiterated by Calcutta High Court in Sheo Kumar Mishra [2016] 70 taxmann.com 375 (Calcutta) FEBRUARY 26, 2016 that In the absence of an appeal or cross-objections by the department against the order in dispute, the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Under Section 251, CIT A has power to enhance the assessment but u/s 253 Tribunal does not have the power to enhance the enhancement. it is not open to the Tribunal itself to raise a ground or permit the party, who has not appealed, to raise a ground, which will work adversely to the appellant

Facts and Decision

CBDT vide letter dated 08-03-2016 has clarified that the monetary limit of Rs. 10 lakhs imposed vide Circular No. 21/2015 dated 10-12-2015 for filing appeals before the ITAT would apply equally to cross objections under section 253(4) of the Act. Cross objections below this monetary limit, already filed, should be pursued for dismissal as withdrawn/not pressed. Filing of cross objections below the monetary limit may not be considered henceforth i.e. wef 08-03-2016

In Construction Engineers pronounced by ITAT Asr on 19-02-2016, delay of 168 days condoned by ITAT where order of CITA was misplaced by one of the employees of the assessee

Cross objection before ITAT may be filed on the issues decided against the assessee or to support the order passed by CIT A. Where Cross objection is in support of CIT A order, it shall stand dismissed along with revenue’s appeal due to low tax effect circular because it has no independent existence. However if cross objection is filed against some part of the order of CITA, it can not be dismissed along with dismissal of appeal of revenue due to low tax effect circular. Contention that appeal stands dismissed in limine is illogical in such situation. Ajay Kalia[2016] 66 taxmann.com 99 (Delhi - Trib.) JANUARY 7, 2016

There can be one possibility when the cross objection is filed by the other side in support of the order passed by the CIT(A) and the other possibility can be of filing CO against the issues decided against it in the impugned order. There can be still one more possibility when the other side, apart from supporting the impugned order appealed against, may also assail certain other issues decided against it. This divulges that the CO can be filed by the other side, on receipt of notice of appeal having been filed by the appealing party, on any issue de hors the issued raised by the appealing party.

No remand can be allowed by ITAT to improve upon the case of revenue Laxman Dass Makjija Agra Bench TM 313 ITR 123 AT; Amina ITAT Del TM 73 ITD 125; In SMC Share Brokers 109 TTJ 700 affirmed by DHC 288 ITR 345 Neema Sayal CHD ITAT 70 ITD 62; All ITAT TM 50 ITD 1;ZUARI LEASING ITAT TM 112 ITD 205

Decision of Co-ordinate Bench when no contrary decision of Bench itself is binding on ITAT Bench hearing the cases ITA 357/ASR/2010 ACIT Vs. S.S Embroiders.

Additional evidence which goes to the root of the matter has to be considered. ITAT confirming order of CIT A without considering Addl. Evidence is Hyper Technical approach. Daljeet kaur (2009) 212 taxation 46(MP) Smt Prabhavati Shah (1998) 231 itr 1(Bom) B.L Choudhary [1976] 105 ITR 371

Third proviso to Section 254 (2A) was inserted by Finance Act 2008 to Overcome ruling of Bombay High Court in Narang coverseas 295 ITR 22 which said that ITAT could grant stay beyond 365 days where delay was not attributable to assessee.Seeton 254 (2A) specifically prohibited extension beyond 365 days even if delay not attributable to assessee. Delhi HC in Maruti Suzuki & Bombay HC in jethmal Fauzi Mal Soni also confirmed this third proviso to S.254 (2A) was not challenged. Now Delhi HC in Pepsi Foods Pvt.ltd. has struck down S. 254 (2A) third proviso being voilative of Act 14 Pepsi Foods P ltd. (Del HC ) 19.5.2015

TOTAL RECALL VS PARTIAL RECALL OF ITAT ORDER – ITAT AMRITSAR COMPREHENSIVE DECISION

Often when department or the assessee is not satisfied with the order of the ITAT, then apart from resorting to appeal before High Court u/s 260A makes use of section 254(2). U/s 254(2), ITAT is vested with power to rectify mistake apparent from record with in four years from the date of order. As per section 254(2) read with Rule 34A of ITAT rules, application for rectification is required to be filed in triplicate and to be accompanied by fee of fifty rupees. The assessee might even file second application u/s 254(2) after earlier application fails. The ITAT

Held by Karnatka High Court in Estate Sheriff Centre (23.06.14) 51 TMC 525, ITAT could not set aside penalty levied by IT authorities without pointing out any reasons

Partial revival of appeal in M.A. by ITAT against order u/s 263 decided on merits, allowing to plead the case on merits and not on invocability of S.263 itself held to be perverse-State Bank of India DECEMBER 17, 2014 [2015] 62 taxmann.com 67 (Bombay)

Order of ITAT for AY 2005-06 was passed allowing order u/s 263 to redo assessment. There after for AY 2007-08, another order u/s 263 was passed but this order decided merits of the case on withdrawl of deduction for provision on standard assets of the assessee bank. ITAT again decided the case against the assessee following its earlier order. The assessee bank went in appeal u/s 260A before High Court. Meanwhile assessee also applied for MA u/s 254(2) before ITAT against which partial revival of appeal against withdrawl of deduction for provision on standard assets only was allowed, which meant that ITAT did not allow assessee to challenge the invocability of order u/s 263 itself. High Court reprimanded ITAT for partial revival of the appeal in M.A.

Recall order of ITAT u/s 254(2) can not be challenged before High Court u/s 260A. It canot even be challenged along with main order u/s 254(1). The only remedy is writ petition under Article 226 (Para 32 to 36)- All India Personality Enhancement & Cultural Centre for Scholars Aipeccs Society [2015] 62 taxmann.com 92 (Delhi)

Bar in s. 129(6) on ex-Members practising before CESTAT does not apply to Members demitting office on probation-UOI vs. Ramesh Nair (Delhi High Court). Also held by Spl Bench of ITAT in Concept Creation that R.13E debarring members to appear before ITAT is not applicable to those on probation.

Rectification order passed by Tribunal u/S 254(2) is not appealable before High Court- Saroop Tanneries Ltd ( P&H) 60 taxmann.cim 305 following Rani Paliwal 268 ITR 220 (P& H)

CBDT Instruction No. 5 of 2014 revising monetary limit to Rs. 4 lakhs for filing appeal before Tribunal shall apply to pending appeals also. Since monetary limit of appeal filed by revenue was less than Rs. 4 lakhs, same was to be dismissed-Gurudayal Sontosh Kumar[2015] 60 taxmann.com 24 (Kolkata - Trib.)FEBRUARY 4, 2015

Case Laws on Requirement to pass reasoned order by ITAT: Gujrat High Court in Premkumar B. Rathi [2015] 59 taxmann.com 203 (Gujarat)

(1)		Omar Salay Mohamed Sait v. CIT [1959] 37 TR 151 (SC).
(2)		Board of Trustees of Martyrs Memorial Trust v. Union of India [2012] 10 SCC 734.
(3)		Real Estate Agencies v. State of Goa [2012] 12 SCC 170.

Appeal Effect order pased by AO can not be over ruled by another order terming the first order a only administrative order . Section 292B for technical breach can not confer jurisdiction for passing another order

CITI FINANCIAL CONSUMER FINANCE INDIA PVT. LTD dtd 17-07-2015 ITA 275/2015

Order of Tribunal pronounced beyond 60/90 days as prescribed in rule 34(5)(c) can not be challenged in a petition under section 254(2)

Times Guaranty Ltd. v. Assistant Commissioner of Income-tax, Circle 1 (3), Mumbai [2015] 153 ITD 655 (Mumbai - Trib.)

Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments

BOON INDUSTRIES Jul 8, 2015 (2015) 44 CCH 0305 MumTrib
R.W Promotion Pvt Ltd (MA No.194/Mum/2013) followed