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Case law › ITAT › ITO v Kalpesh Synthetics Pvt Ltd (miscellaneous applications)
ITATHelps departmentOverruleds.254(2)s.254(1)s.36(1)(va)s.2(24)s.143(1)

ITO v Kalpesh Synthetics Pvt Ltd (miscellaneous applications)

I won my section 36(1)(va) appeal in the Tribunal before Checkmate. The department has now filed a miscellaneous application to recall the order. Can it do that?

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I won my section 36(1)(va) appeal in the Tribunal before Checkmate. The department has now filed a miscellaneous application to recall the order. Can it do that?

This bench held it can. Non-consideration of a Supreme Court decision is a mistake apparent from the record within section 254(2), and because a judicial decision operates retrospectively — the judge discovers the law rather than makes it — a decision handed down after the Tribunal's order can equally found a recall. Both favourable orders were recalled for a fresh hearing.

Decided by the ITAT (B.R. Baskaran, Accountant Member and Sandeep Singh Karhail, Judicial Member (Mumbai "H" Bench)) on 2023-04-13, reported as M.A. Nos. 9 and 10/Mum./2023 in ITA Nos. 1910 and 1785/Mum./2021; Assessment Years 2019-20 and 2018-19; heard 24 March 2023. It bears on section 254(2), section 254(1), section 36(1)(va), section 2(24), section 143(1) of the Income Tax Act 1961, in Appeals and Deductions & Disallowances matters.

Overruled. This order held that non-consideration of a Supreme Court decision handed down after the Tribunal's order is a mistake apparent from the record within section 254(2), because a judicial decision operates retrospectively. The Bombay High Court has since held the exact opposite, twice, and has quashed a recall order made on that footing. In Vaibhav Maruti Dombale v DCIT (Writ Petition No. 1489 of 2025, Colabawalla and Pooniwalla JJ, 12 September 2025) the Court said at paragraph 22, 'We are in complete agreement with the view taken by the Tribunal in ANI Integrated Services Ltd. (Supra)' — that is, with the Mumbai Bench's holding that an 'order of the Tribunal cannot be recalled based on the subsequent judgement of the Hon'ble Supreme Court when the order of the Tribunal had attained finality between the parties' — and allowed the petition 'to quash and set aside the order dated 17 September 2024 passed u/s 254(2) of the Act'. In Goldy Precision Stampings Pvt Ltd v ADIT (WP(L) No. 13454 of 2025, Colabawalla and Jamsandekar JJ, 13 October 2025) the Court repeated that it was 'in complete agreement with the view taken by the Tribunal in ANI Integrated Services Ltd', holding that 'A subsequent ruling of a Court cannot be a ground for invoking the provisions of Section 254(2)' and that where the ITAT 'followed the law as it stood then', later overruled by Checkmate Services, 'there was no error or mistake apparent on the record'. Neither judgment names this order, so it has not been set aside as such; but the reasoning of this order can no longer be followed by the Mumbai Benches. A recall of an order on the strength of Checkmate should not be advised on the authority of this decision. The citator itself returns one document, M/s Kushang Security and House Keeping v ITO, ITAT Mumbai, 24 September 2025, which on reading does not mention this case at all; and no High Court or Supreme Court record carries the assessee's name.

Why it matters

This is the mechanism by which a great many pre-October 2022 wins on employees' contributions are being unwound, and it matters more than the merits, because the merits are now settled against the assessee. The order rests on Saurashtra Kutch Stock Exchange, but note carefully what that case actually decided: there the jurisdictional High Court decision already existed at the date of the Tribunal's order and was simply not brought to its notice. This bench took the further step of holding that a decision delivered afterwards is also within section 254(2). That step is contested. A differently constituted Mumbai bench in DCIT v ANI Integrated Services Ltd on 29 May 2024 refused a recall on materially the same facts, relying on CIT v Reliance Telecom Ltd (SC) and on the Explanation to Order XLVII Rule 1 CPC, which says in terms that the reversal of the legal position by a later decision of a superior court is not a ground for review. B.R. Baskaran AM sat on both. If you are resisting a recall application, you are not arguing an unarguable point.

Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.

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Related

Other authorities on the same sections.
Every authority on the provisions this decision turns on: all 110 on s.143(1) · all 24 on s.2(24) · all 20 on s.254(2)