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| DATE: | June 27, 2014 (Date of publication) |
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| Click here to download the judgement (MA_Maintainability_Appeal.pdf) |
S. 254(2): Pendency of an appeal filed in the High Court u/s 260A bars the hearing of a MA filed u/s 254(2) even if the appeal is not admitted
The assessee has moved an instant Miscellaneous Application (MA) against the order of the !TAT. At the time of hearing, the AR for the assessee-appellant informed that the assessee has filed an appeal u/s 260A before the Hon’ble Bombay High Court, but is yet to be admitted. Since the appeal has been filed before the Hon’ble Bombay High Court, the judicial propriety does not allow the assessee to seek efficacious remedy simultaneously before two authorities and in particular where the issue is seized by a higher judicial forum, even if pending admission. On this ground, the instant MA is rejected.
Note: This view is wrong in view of the Bombay High Court rulings in Novartis & Accra Investments where it was clarified that the pendency of an appeal filed u/s 260A does not bar the hearing of a MA filed u/s 254(2). The view in Tata Communications 121 ITD 384 (Mum) (SB) (which barred MAs only if the appeal is admitted by the High Court) requires reconsideration. The entire law has been thoroughly discussed in Coca Cola (ITAT Pune) (the unreported orders are attached to the file)
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