TMI Blog2006 (8) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... Income tax " which reads as follows : "749A. Scrutiny assessment guidelines for assessment year 1996-97. - The Income-tax Department has decided not to select returns for the assessment year 1996-97 for detailed scrutiny if the total income declared is at least 30 per cent more than the total income declared for the assessment year 1995-96. The following further conditions should be fulfilled : ( a )The total income for both the assessment years should exceed the basic exemption limit; ( b )The total income for the assessment year 1995-96 should not exceed Rs. 5 lakhs; and ( c )Tax is fully paid for the assessment year 1996-97 before the return is filed. In these cases the taxpayers will not be required to attend income-tax offices in connection with their assessments. However, some of these cases will be scrutinized if there is positive information of tax evasion or there is a large claim of refund. Press Release : Dated 12th March, 1996." 3.1 After considering various aspects of the issue, the Tribunal came to the following conclusion as per para-7 of the impugned order : "7. We are of the view that the assessee deserves to succeed. It is not denied tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 254(1), i.e., 20-8-2002 and filing of the present miscellaneous application on 17-5-2005. Revenue was aggrieved by the order of the Tribunal dated 20-8-2002 and filed an appeal against the same to the Hon ble High Court of Andhra Pradesh. The jurisdictional High Court has disposed of the above appeal of the revenue vide its judgment in ITA 306 of 2003 on 27-8-2004 in the case of CIT v. Smt. Nayna P. Dedhia [2004] 270 ITR 572 (AP). The appeal of the revenue has been dismissed, following the Hon ble Supreme Court s judgment in the case of UCO Bank v. CIT [1999] 237 ITR 889 (SC). The above happenings are relevant insofar as the issue of merger of Tribunal s order with that of the judgment of the High Court, a relevant consideration for deciding the present miscellaneous petition. 5.1 The ld. Departmental Representative has submitted that the fact that there was a survey in the case of the assessee was not brought to the knowledge of the Tribunal during the hearing of the appeal. However, it is contended by him that the expression the record used in section 254(2) will include within its fold all the records available with the Assessing Officer and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage. As the facts are not disputed and as it is merely a question of law which arises from facts, which are on record in the assessment proceedings, there is no reason as to why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. Reliance was placed on the Apex Court s decision in the case of NTPC Ltd. v. CIT [1998] 229 ITR 383 . 5.4 On the issue of merger of the Tribunal s order with that of the jurisdictional High Court s judgment in Smt. Nayna P. Dedhia s case ( supra ), the ld. Departmental Representative submitted that the issue decided by the Hon ble High Court was as to whether the Press Note was a Circular issued by the CBDT and whether the same was binding on the revenue. Further, it is submitted that a reading of the judgment would show that the Hon ble High Court has not answered the question raised by the revenue but has dismissed the appeal of the revenue in limine as no substantial question of law arose. Thus, it is contended that there was no merger of the Tribunal s order with that of the jurisdictional High Court s order mentioned supra . Rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich were not brought to the knowledge of the Tribunal during the hearing of the appeal. 6.3 On the issue of merger of the Tribunal s order with that of the Hon ble High Court, it is submitted by the ld. Counsel for the assessee that the order of the Tribunal has been upheld by the jurisdictional High Court. This would show that there is a complete merger of the Tribunal s order with that of the High Court s order and, therefore, the Hon ble Tribunal do not have jurisdiction to rectify the same under section 254(2) of the Act. Reliance was placed on Asstt. CWT v. Ramesh Pershad Goel [2005] 276 ITR 93 (Hyd.)(AT). 6.4 The ld. Counsel for the assessee referred to the exceptions mentioned in press release, which reads as under : "However, some of these cases will be scrutinized if there is positive information of tax evasion or there is a large claim of refund." It was pointed out by him that the exception will be inapplicable in cases of survey unless there is positive information of tax evasion. In the case of the assessee as may be seen from the survey of the Assessing Officer, the survey was conducted to pursue the advance tax payment and verify the books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue was dismissed in limine . However, the questions referred were with reference to the press release issued by the CBDT. The fact of the survey being conducted in the assessee s case and, therefore, the case falling within the ambit of compulsory scrutiny basket was not subject-matter of appeal before the Hon ble High Court. In this sense, it cannot be said that the controversy raised by the revenue in the present miscellaneous application is outside the jurisdiction of the Tribunal on the principle of merger. Thus, we hold that controversy can be adjudicated upon by the Tribunal even after the appeal of the revenue arising out of the Tribunal s order, has been dismissed by the Hon ble High Court. 9. Many an issue has been raised by both the revenue and the assessee. However, we are of the opinion that the crux of the matter has not been touched upon by both the parties. It may be noted that the appeal was filed by the assessee and the ground of appeal that was required to be adjudicated upon by the Tribunal has been reproduced in para 2.1 of the present order. It is also to be noted that revenue has not filed any cross-objection with reference to the above appeal of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Ramesh Pershad Goel ( supra ). If I may further say, as has been held in the case of Prakash Yarn Trading Co. v. ITO [1991] 39 ITD 170 (Hyd.) and sustained by the jurisdictional High Court in Writ Petition No. 9915 of 1991 filed against the Tribunal order by the same assessee before it, through Hon ble A.P. High Court judgment dated 1-7- 1996, copy of which is filed on record, once the assessee (Prakash Yarn Trading Co.) failed in its cause of action taken up earlier before the Hon ble High Court, and got its dismissal, that assessee cannot somersault and take up the same matter before the Tribunal even though on a different cause of action before the Tribunal. In the instant case, similarly, the revenue has adopted the tactics of that assessee in that case. To say it in other words, having failed to bring to the notice of the Tribunal a fact, according to it, either before the CIT(A) or even before the Tribunal and later on further failed in the appeal before the jurisdictional High Court too, the Department is reagitating the issue on a different cause of action under the guise of this Miscellaneous Petition. Even if such different cause of action is a fact, that is a mis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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