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TMI Blog2012 (7) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. ITA Nos.331/2012, 332/2012, 333/2012 & 334/2012 1. Issue Notice. Mr. Sanjeev Rajpal, Advocate accepts notices on behalf of respondents in all the four appeals. With consent of counsel, the matters were taken up for hearing. The following substantial question of law arises for determination: (i) Whether the Tribunal committed an error of law in holding that the Appellant's cross-objections under Section-253 (4) of the Income Tax Act was barred. 2. The facts necessary for deciding the Appeals are that: - The Income Tax authorities made re-assessments on 28.12.2007. The order was carried in Appeal. The Appellant had objected to the assumption of jurisdiction under Section-147 of the Act by the A.O. and also objected to the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court's order was a restricted one. In that, the Tribunal was directed to adjudicate the matter afresh on the applicability of Rule-46 (A) and whether in obtaining the factual matrix, the only option was to remand the matter to the Assessing Officer. 4. In the above background, on 18.03.2011, the appellant filed its cross-objection before the ITAT under Section-253 (4) of the Act. It was contended that the ITAT had not issued notice and that the appellant became aware of the pendency of the remitted appeals only upon noticing them in the cause list. The Revenue objected to the cross-objection. By the impugned order dated 21.10.2011, the cross-objections were dismissed. The Tribunal in this regard reasoned as follows: - "10. Before com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court and no new issue can be considered at this stage. In this view of the mater, we find no justification in the argument of learned AR who supported the Cross Objections on the ground that the assessee did not get any opportunity to raise such issue. We also do not find any force in the argument of ld. AR who made reference to Rule 27 of ITAT Rules, as it has already been mentioned that the scope of the decision of the Tribunal in departmental appeal is limited to carry out of the directions of Hon‟ble High Court which are only with regard to deciding an issue that in the factual matrix whether it is only the option available with the Tribunal to remit the matter to the AO. 12. Apart from above, by filing the Cross Objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of article 142 of the Constitution, which empowers the Court to pass any order in a case in order to do „complete justice‟. "(pp.477 and 478 of the report)". 13. Moreover, in Form No.36A, i.e., from for filing Cross Objection in the Tribunal, in column No.5 where the appellant is required to furnish the date of receipt of notice of appeal, the assessee has written "no notice received." On perusal of the monthly cause list made available by the ITAT Bar on 7th March, 2011, the respondent became aware of the fixation of the revenue‟s appeal. The cross objections can be filed either by the revenue or by the assessee as per provisions of Section 253 (4) which read as under: - "Appeals to the Appellate Tribunal. 253. (1)... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is aggrieved with the order inter alia passed by the CIT (A). The impugned appeals are filed by the revenue and notice of hearing by the Tribunal was not on account of hearing of the appeals filed u/s 253 (2), but, it was on account of the directions given by Hon‟ble High Court. The relevant date of receipt of notice of appeal will be in respect of original hearing when the appeals of revenue were decided by the Tribunal vide order dated 6th November, 2009. Fixing of appeal in pursuance of directions of Hon‟ble High Court does not give right to the assessee to file cross objections as this right is available only when the appeal is fixed for hearing by the Tribunal of the other party in respect of an appeal filed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections at the time when it could have originally when the appeals had been filed before the ITAT. This is evident from a reading of this Court's order in ITA Nos.876, 877, 878 and 880/2010 particularly the extract reproduced above where the issue of whether notice was issued was left open. Furthermore, the impugned order itself appears to have proceeded on the assumption that the assessee did not choose to file cross-objections despite service of notice. The asseessee's argument here is that notice in fact was not served even after remand from this Court and that the cross-objection was filed since the pendency of appeals was noticed. We also are of the opinion that the Tribunal could have examined whether the cross objections could be ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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