TMI Blog2022 (12) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... authority setting aside both orders of the assessment as well as of the first appellate authority. In the present case, the Tribunal which was deciding the second appeal was required to frame the point of determination and thereupon records its finding and the decision taken by it, but only after noting the arguments of both the parties, the Tribunal remanded back the matter to the assessing authority to consider certain documents and make fresh assessment - The Hon ble Apex Court in SHIVAKUMAR ORS VERSUS SHARANABASAPPA ORS [ 2020 (4) TMI 907 - SUPREME COURT] while considering the scope of remand had held order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the trial court may not be considered proper in a given case because the first appellate court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. In the present case, the Tribunal has not recorded any finding to the effect that the assessing autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, being a last fact finding authority and empowered to examine and adjudicate the factual and legal issues, has erred in remanding the appeal back to the Assessing Authority when all the material for deciding the case were available on record? 3. Facts in nutshell, are that revisionist is a company incorporated under the provisions of Companies Act, 1956 having its registered office at Raigad, Maharastra, having its principal place of business at Kanpur Nagar. The revisionist/assessee is a registered dealer both under the Act of 2008 and under the Central Sales Tax Act, 1956 ( hereinafter called CST Act ). 4. The dealer is engaged in the manufacture of reaction initiators, reaction accellerators and catalyst preparation. It purchased business of catalyst from M/s. ICI India Ltd., now known as M/s. AKZO Nobel India Ltd. ( AKZO Nobel ) in the year 2002 through Business Transfer Agreement. The land of manufacturing unit could not be transferred to purchaser company. The dealer entered into a Toll Conversion Agreement (TCA) dated 02.12.2022 with M/s. AKZO Nobel for processing and manufacturing of finished goods, for the raw material and capital goods purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority had remanded back the matter to the assessing authority with certain directions. Consequent to which, a show-cause notice was issued on 14.02.2020 wherein Point No.3 of the notice had required information as to the invoice of the company AKZO Nobel which was doing the job work for the revisionist and all the documents therein. According to him, on 12.03.2020, reply was submitted along with the documents furnishing entire information. According to him, in para No.2 of the reply, the details of the information sought was given and the documents such as stock register, finished goods register, purchase register, production register, excise register of raw material and finished goods, sale book, purchase and sale bills and vouchers were placed. 7. According to learned counsel, the assessing authority in cryptic manner while deciding the third issue had taken note of the fact that explanation was furnished but it was not dealt with and assessment was made. He then submitted in the appeal filed by the assessee, specific ground was taken but the first appellate authority has also not considered the same. He then invited the attention of the Court to the grounds taken before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the factual and legal issue, has erred in remanding back the matter to the assessing authority when all the materials for deciding the case was available on record. The matter of remand by various authorities, Tribunals and courts have been under active consideration of this Court and also of the Hon ble Apex Court for quite a long time. 12. The concept of remanding back the issue finds place in Order 41 Rule 23, 23-A and 25 of the Code of Civil Procedure, 1908 ( hereinafter called as CPC ). Order 41 of CPC deals with appeals from original decrees. Rule 23, 23-A, 24 and 25 deal with the matter of remand by the appellate authority. The relevant rules are extracted here as under:- 23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of otherwise than on a preliminary point, and decree is reversed in appeal, the appellate court if considers necessary may remand for re-trial. 14. Rule 24 on the other hand provides that where the evidence on record is sufficient to enable the appellate court to pronounce judgment it may after resettling the issues determine the suit. Thus, Rule 24 restricts the power of remand in those cases where the evidence and material is on record and the appellate court is bound to decide considering the same after resettling the issues, if necessary. 15. Rule 25 envisages a situation that where the court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact which appears to the appellate court essential for determination may remand back the matter and if necessary frame issue and refer the same to the trial court. 16. The principle envisaged under Rule 23, 23A, 24 and 25 of Order 41 CPC is of great relevance and has to be considered by the all the authorities, Tribunals and courts while exercising the power of remand. 17. It has been often noticed that under the taxing statute the various authorities who hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to record reasons as to why it has taken recourse to any one out of the three Rules of Order 41 CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (the appellants before the first appellate court and the High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order 41 CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider it proper to remand the case to the High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals. 22. Rule 25 of Order 41 gives the power to the appellate authority to remand a matter to the trial court only when it has omitted to frame or try an issue or to determine any question of fact which appears to the appellate court essential to the right decision of the suit on merits, it may if necessary, frame issue and refer the same for trial court. 23. In the present case, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and cause great loss to business world. 28. The officials and the members of the Tribunal who are dealing with the tax matters should be sensitive of the fact that business matter should be dealt and tried with strictly in accordance with law, at the earliest. Delay only leads to more litigation and loss to the revenue. 29. Reliance placed upon decisions by the State counsel on Order 41 Rule 25 CPC does not in any way help him as all the judgments placed before the Court by the State in fact reflect that order of remand should not be passed as a matter of routine. In fact, it helps the assessee. 30. Considering the facts and circumstances of the case, I find that Tribunal was not correct in remanding back the matter to the assessing authority when all the material was before it and should have dealt with each of the material and decided the same. 31. In the result, the order dated 08.08.2022 passed by the Tribunal is hereby set aside and the matter is remitted back to the Tribunal to decide both the appeals of the assessee in accordance with law on the material available on record, as expeditiously as possible. 32. Both the revisions stands partly allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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