9911796707
TMI Blog2018 (8) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing officer? 2. By the common judgment, dated 30.09.2013, the appeals were dismissed, confirming the order passed by the Income Tax Appellate Tribunal. 3. Mr.R.Krishnamoorthy, learned Senior counsel assisted by Mr.S.Wilson, learned counsel for the applicant submitted that this Court had not focused on jurisdictional grounds namely, (1) that the Tribunal failed to see the remand report of the respondents admitting to the fact of the applicant carrying on agricultural activity and earning income thereof, whereby the respondent is estopped from maintaining the appeal for inclusion of the said income of the applicant herein. The learned Senior counsel referred to the remand report, dated 25.01.2002 and submitted that the Assessing Officer has clearly stated that treating the entire income as 'non-agricultural' does not appear to be in-order and the Commissioner of Income Tax (Appeals) [CIT(A)], may consider the income as 'agricultural' to extent that he is satisfied and other issues may be decided on merits. Further, it is submitted that the Inspector of Income Tax, Virudhunagar, in his report, dated 30.03.1999, has stated that he made discreet enquiry in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y made by the Assessing Officer in pursuance to the direction of the CIT(A). Further, the learned Senior counsel referred to the factual findings recorded by the CIT(A) based upon the remand report and the report of the Inspector of Income Tax and submitted that factually, it has been established that the applicant's case merits acceptance. 4. With regard to the power of this Court to review its orders, reliance was placed on the decision of the Hon'ble Supreme Court in the case of M.M.Thomas vs. State of Kerala and Anr., Appeal (Civil) No.9663 of 1994, dated 06.01.2000 and it is submitted that if any apparent error is noticed by this Court in respect of any orders passed by it, the High Court has not only the power, but also a duty to correct it. 5. With regard to the jurisdictional issue that the appeal before the Tribunal at the instance of the revenue was not maintainable. Reliance was placed on the decision of the High Court of Bombay in the case of Jivatlal Purtapshi vs. Commissioner of Income Tax - Bombay, [1967] 65 ITR 261(Bom); the decision of the High Court of Punjab & Haryana in the case of Banta Singh Kartar Singh vs. CIT Patiala, 125 ITR 239 and the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by law. 10. In Commissioner of Income Tax, Guwahati vs. Meghalaya Steels Limited (2015) 17 SCC 647, the appeal arose out of two judgments delivered by the High Court of Judicature at Guwahati. In the first judgment, various points on merits were gone into, inter alia as to whether deductions to be made under Section 80-IB of the Act, were allowable on facts and whether transport subsidies were or were not available together with other incentives. The High Court answered two substantial questions of law, which arose under Section 260A of the Act, the first question was answered in the negative i.e., in favour of the revenue and against the assessee. However, the second question was answered in the affirmative in favour of the assessee and against the revenue and the appeal was accordingly, disposed of. As against the said judgment, a review petition was filed by the assessee before the very Division Bench. The Division Bench recalled its earlier order observing that the Court did not formulate the substantial questions of law for adjudication before hearing of the appeal on merits, and there can be no escape from the conclusion that hearing of the appeal prior to its admission h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h courts' inherent jurisdiction is in any manner affected. 11. In D.N.Singh vs. Commissioner of Customs and Central Excise, 2010 325 ITR 349, the Full Bench of the Patna High Court held that a review is maintainable in appeals under sub-section 71 of Section 260A of the Act. In Indian Carbon Ltd vs. Commissioner of Income Tax (Gauhati High Court), 2008 3 GLT 339 and Commissioner of Income Tax vs. Wiliamson Tea (Assam Ltd.,) 2009 319 ITR 368, it was held that Review Petition is maintainable, though there is no provision in the Act empowering the High Court to review its order, such power is available to the High Court, as a Court of record and therefore, the High Court can review its order in exercise of its plenary jurisdiction in order to keep its record correct and clean, particularly when the error is apparent on the face of the record. 12. In the Commissioner of Income Tax, Panaji vs. Automobile Corporation of Goa Ltd., (2017) 11 SCC 315, the Supreme Court relying on the decision in the case of Meghalaya Steels Limited., (supra), held that review would be available in respect of the orders passed under Section 260A of the Act. 13. In the case of M.M.Thomas (supra), the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine as to whether there is an error apparent on the face of the judgment, dated 30.09.2013, and whether the jurisdictional fact as raised by the applicants arise for consideration, we would be required to take note of the facts of the case and since facts are identical for all assessment years the facts relating to assessment year 1995-96, is taken into consideration. The applicant filed a return of income originally on 29.01.1999, showing a total income of Rs. 3,09,280/- which comprised income from money lending business and interest from bank deposits. The income return was accepted under Section 143(1) of the Act. A search was conducted by the Central Bureau of Investigation on 19.02.1997, at the applicant's residential premises, as well as bank lockers standing in her name. The Assessing Officer reopened the assessment under Section 147 of the Act and made re-assessment by adding the gifts created to capital account of the applicant and her daughters amounting to Rs. 4,32,921/-; loan of Rs. 2,00,000/- from Mrs.S.Saraswathy and agricultural income of Rs. 4,08,840/- treating it as 'non-agricultural income'. Aggrieved by the said order, the assessee preferred appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a report was called for from the Assessing Officer on the stand taken by the applicant in the appeal proceedings. Accordingly, the Assessing Officer submitted a report, dated 25.11.2002. In the preceding paragraphs, the contents of the report have been set out. It is suffice to state that the report was wholly in favour of the applicant/assessee. Thus, taking note of the report of the Assessing Officer, dated 25.11.2002, as well as the report of the Inspector of Income Tax, the CIT(A) held that the action of the Assessing Officer treating the sum of Rs. 4,08,841/-, as 'non-agricultural income' was incorrect. 17. Aggrieved by the orders passed by the CIT (A), the Revenue preferred appeals before the Tribunal. The Tribunal accepted the stand taken by the Revenue and affirmed the findings recorded by the Assessing Officer. The order passed by the Tribunal is verbatim repetition of the findings of the Assessing Officer in its order dated 29.03.2001, passed under Section 143(3) read with Section 147 of the Act. We find that there is no reference to the remand report dated 25.11.2002, which was called for by the CIT(A) based on which the CIT(A) allowed the appeal. To be noted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the fact that the issue canvassed before us, is a jurisdictional issue, which could be raised at any point of time. Secondly, the Tribunal was required to consider as to whether it had jurisdiction to entertain the appeal filed by the Revenue against the order passed by the CIT(A), which itself was based upon a remand report. As noticed above, the order passed by the Tribunal is a verbatim repetition of the assessment order, dated 29.03.2001. Thus, the Tribunal was required to consider the correctness of the order passed by the CIT(A) and if had been done in a proper prospective, the Tribunal would have noticed that the order allowing the assessee's appeal by the CIT(A) was based on the remand report. If this had been taken note of, the Tribunal would have to consider as to whether the appeal by the Revenue was maintainable before it. In the case of Jivatlal Purtapshi(supra), it was held that the department having agreed to delete the amount from the assessment and having considered the deletion before the Appellate Assistant Commissioner, cannot be aggrieved by that part of the order to enable it to file an appeal before the Tribunal and therefore, such an appeal, neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer. It was further pointed out that only if the assessee was aggrieved by the order of the Income Tax Officer, he had the right to file an appeal before the Appellate Assistant Commissioner and once the assessee could not have had any grievance in view of the statement made by the partner, the appeal to the Appellate Assistant Commissioner was incompetent and equally the appeal to the Tribunal was incompetent and consequently, it was held that the reference to the Court on the second question said to arise out of order of the Tribunal is also incompetent. In the case of Banta Singh Kartar Singh(supra), a similar question arose in an order under Section 271(1)(c) of the Act. The Division Bench of the High Court of Punjab & Haryana, placing reliance on the decision of the Mumbai High Court in Jivatlal Purtapshi (supra), held that an order based on agreement cannot give rise to grievances and the same cannot be agitated in appeal. 21. In Cochin Malabar Estates and Industries Ltd., (supra), one of the question which arose for consideration before the Division Bench of the High Court of Kerala was whether on the facts and in the circumstances of the case, the Tribunal was right in h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
