TMI Blog2017 (9) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules is akin to Rule 22 Order XLI of the Civil Procedure Code. Sub-rule (1) provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been decided in his favour; and may also take any cross-objection to the decree which he could have taken by way of an appeal. - Decided in favour of the assessee. Tribunal has invalidated the reopening of assessments in both the assesment years by briefly referring to earlier notices of reopening and held that on identical grounds, the reopening was quashed. From the order of the Tribunal, we do not find a full comparison of the set of reasonings in the earlier and present reopening of assessments. For the assessment year 2002-03, in fact the conclusion of the Tribunal is merely by a reference. We would request the Tribunal to reassess this issue for both the assessment years and record its fuller reasons for coming to a particular conclusion. - Tax Appeal No. 654 of 2017 With Tax Appeal No. 655 of 2017 - - - Dated:- 20-9-2017 - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, preferred two separate appeals before the Tribunal. Obviously, since the assessee was not aggrieved by the order passed by the Commissioner, it had not preferred any appeal. Even after the department preferred the appeals before the Tribunal, the assessee did not either file cross appeals or cross-objections raising the question of validity of the reopening of the assessments. Later on, however, relying on Rule 27 of the Income Tax Appellate Tribunal's Rules ['the Rules' for short], the assessee raised the legal issue of the validity of the assessments before the Tribunal. Despite objections from the department, the Tribunal permitted the assessee to raise such contentions and ultimately held that the notices for reopening of assessments in both the years were bad in law and declared them as invalid. This common judgement of the Tribunal dated 06.05.2016 is challenged by the department in these two tax appeals. 5. Having heard learned counsel for the parties and having perused the materials on record, we take-up following two substantial questions of law for our consideration: 1. Whether the Income Tax Appellate Tribunal was right in law in allowing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays of the receipt of the notice, file a memorandum of crossobjections against any part of the order of the Commissioner (Appeals) and such memorandum would be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). In plain terms, sub-section (4) of section 253 gives the right to the Assessing Officer as well as to the assessee to challenge the order of the Commissioner (Appeals) or part thereof upon receipt of the notice issued by the Tribunal in an appeal filed by the other side, even though previously he may not have preferred any such appeal and if such cross-objection is filed within the time mentioned in subsection (4), the same would be treated as an appeal filed within the time prescribed under sub-section (3). 8. Rule 27 of the Rules reads as under: Respondent may support order on grounds decided against him. 27. The respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him. 9. This Rule thus provides that the respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be directed against any part of the order of the Appellate Commissioner and if so presented, it would be disposed of by the Tribunal in the manner an appeal would be decided. In other words, such cross-objection would have independent existence even if for some reason, the appeal of the opponent does not survive. The cross-objection could be filed only against any part of the order of the Appellate Commissioner and necessarily therefore, that part of the order of the Commissioner (Appeals) has to be adverse to the person raising the cross-objection. Rejection of a ground, an argument or a contention would not come within the expression any part of the order of the Commissioner in context of which, the said phrase has been used in sub-section (4) of section 253. 11. To put the controversy beyond doubt, Rule 27 of the Rules makes it clear that the respondent in appeal before the Tribunal even without filing an appeal can support the order appealed against on any of the grounds decided against him. It can be easily appreciated that all prayers in the appeal may be allowed by the Commissioner (Appeals), however, some of the contentions of the appellant may not have appealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of crossobjections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2 rendered by the trial court. 14. Similar issue came-up before Division Bench of this Court in case of Dahod Sahakari Kharid Vechan Sangh Ltd. vs. Commissioner of Income Tax reported in 282 ITR 321 in which the Court observed as under: 17. Taking up the second issue first, the Tribunal has committed an error in law in holding that the assessee having not filed cross-objection agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and nugatory. It is not possible to interpret the provision in such manner. Any interpretation placed on a provision has to be in harmony with the other provisions under the Act or the connected Rules and an interpretation which makes other connected provisions otiose has to be to avoided. Rule 27 of the Tribunal Rules is clear and unambiguous. The right granted to the respondent by the said Rule cannot be taken away by the Tribunal by referring to provisions of Section 253(4) of the Act. The Tribunal was, therefore, in error in holding that the finding recorded by the Commissioner (Appeals) remained unchallenged since the assessee had not filed cross objections. 15. The first question is, therefore, answered against the Revenue and in favour of the assessee. 17. Coming to the second question, we notice that the Tribunal has invalidated the reopening of assessments in both the assesment years by briefly referring to earlier notices of reopening and held that on identical grounds, the reopening was quashed. From the order of the Tribunal, we do not find a full comparison of the set of reasonings in the earlier and present reopening of assessments. For the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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