SH. TILAK RAJ, KATRA V. THE INCOME TAX OFFICER, WARD UDHAMPUR

ITA 282/ASR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7722 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: P N ARORA
• Section: 246; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. NO. 282/(ASR)/2017 ASSESSMENT YEAR: 2010-11 PAN: AKJPR8497B SH. TILAK RAJ S/O SH. RAM LAL, HOUSE NO. 9 WARD NO. 8, HANSALI LAL, KATRA. VS. INCOME TAX OFFICER, WARD- UDHAMPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P. N. ARORA (ADV. ) RESPONDENT BY: SH. S. S. KANWAL (D. R.) DATE OF HEARING: 09.11.2017 DATE OF PRONOUNCEMENT: 04.12.201 7 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LD. CIT(A), JAMMU, DATED 15.02.2017 FOR ASST. YEAR: 2010-11. 2. THE GROUNDS OF APPEAL TAKEN BY ASSESSEE ARE REPR ODUCED BELOW: 1. THAT THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE ORDER OF LEARNED CIT(A) ARE BOTH AGAINST THE FACTS OF THE CASE AND A RE UNTENABLE IN LAW. 2. THAT THE WORTHY CIT(A) HAS NOT APPRECIATED THE FACTS OF THE CASE AND MERELY RELIED ON ORDER OF THE AO AND WITHOUT ANY RH YME & REASON, THE LD. CIT(A) HAS CONFIRMED THE ADDITION. AS SUCH ORDER OF THE CIT(A) IS LIABLE TO CANCELLED. 3. THAT THE LD CIT(A) HAS GROSSLY ERRED IN NOT ADMI TTING THE APPEAL AND ACCORDINGLY WAS NOT JUSTIFIED IN REJECTING THE SAME , MERELY BECAUSE THE ISSUE HAS BEEN DECIDED BY THE PRINCIPAL CIT, JAMMU, U/S 264 OF THE I.T. ACT, 1961. 4. THAT THE WORTHY CIT(A) FAILED TO APPRECIATE THA T THE PROCEEDINGS INITIATED U/S 264 AND U/S 246 ARE SEPARATE AND DIST INCT AND THEY CANNOT MIXED TOGETHER. AS SUCH THE CIT(A) IS NOT JUSTIFIED IN NOT ADMITTING AND REJECTING THE SAME. ITA NO. 282(ASR)/2017 ASSESSMENT YEAR: 2010-11 2 5. THAT ANY OTHER GROUND OF APPEAL WHICH MAY BE UR GED AT THE TIME OF HEARING OF THE APPEAL. 6. THAT THE APPEAL OF THE ASSESSEE MAY KINDLY BE AD MITTED AS REQUESTED. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE LD. CIT(A) HAD NOT ADMITTED THE APPEAL OF ASSESSEE AND WHILE REJECTING THE APPEAL OF THE ASSESSEE HAS HELD THAT SINCE THE ISSUE RAISED BY AS SESSEE HAS ALREADY BEEN CONSIDERED AND DECIDED BY PR. CIT JAMMU U/S 26 4 OF THE ACT AND THEREFORE HE HAS NO JURISDICTION TO DECIDE THE APPE AL ON MERITS. THE LD. AR SUBMITTED THAT PR. CIT JAMMU VIDE ORDER DATED 26 .03.2015 DISMISSED THE PETITION U/S 264 WITHOUT DECIDING THE CASE ON MERITS AND THEREFORE THE ASSESSEE FILED APPEAL BEFORE LD. CIT( A) AND LD. CIT(A) SHOULD HAVE DECIDED THE APPEAL ON MERITS. IT WAS SU BMITTED THAT THE PROVISIONS OF SECTION 246 AND 264 ARE DIFFERENT SEC TIONS. SECTION 264 IS FOR ADJUDICATION BY CIT WHEREAS SECTION 246 DEALS W ITH FILING OF APPEAL BEFORE LD. CIT(A). IT WAS SUBMITTED THAT NOTWITHSTA NDING UNSUCCESSFUL EFFORTS FOR HAVING THE ORDER REVISED, THE ASSESSEE COULD STILL FILE THE APPEAL BEFORE THE LD. CIT(A), AND THIS IS VERY MUCH CLEAR FROM THE PLAIN READING OF SECTION 246 AND SECTION 264. THE LD. AR SUBMITTE D THAT SIMILAR MATTER HAD COME UP FOR CONSIDERATION BEFORE THE HON'BLE HI GH COURT OF MADRAS IN THE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI REPO RTED IN 250 ITR 0187 AND WHEREIN THE HON'BLE. MADRAS HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT THE HON'BLE AMRITSAR BENCH IN THE CASE OF SHRI RAJAN DATTA VIDE ORDER DATED ITA NO. 282(ASR)/2017 ASSESSMENT YEAR: 2010-11 3 03.06.2016 HAS ALSO DECIDED SIMILAR ISSUE IN FAVOUR OF ASSESSEE AFTER RELYING UPON THE SAME JUDGMENT OF MADRAS HIGH COURT . 4. THE LD. DR ON THE OTHER HAND SUBMITTED THAT SECT ION 246 AND 264 ARE THOUGH ADMITTEDLY DIFFERENT BUT WHEN THE ASSESS EE OPTS FOR FILING APPEAL U/S 264 ITS RIGHT FOR FILING AN APPEAL BEFOR E LD. CIT(A) GETS EXTINGUISHED AND THEREFORE LD. CIT(A) HAS RIGHTLY D ISMISSED THE APPEAL OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH OUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI VIDE ORDER DATED 14 TH DECEMBER, 1998 HAS DEALT WITH THE SIMILAR ISSUE WHEREIN IT HAS BEE N HELD THAT THE PROVISIONS DEALING WITH THE APPELLATE AUTHORITIES D O NOT BAR AN APPELLANT FROM INVOKING THE JURISDICTION, IF HE HAD INVOKED R EVISIONAL JURISDICTION EVEN THOUGH FOR INVOKING REVISIONAL JURISDICTION, I T IS A PRE-CONDITION THAT THE APPELLATE JURISDICTION SHOULD NOT HAVE BEEN INV OKED. THE RELEVANT FINDINGS OF THE HON'BLE COURT ARE REPRODUCED BELOW: 1. THOUGH THERE IS NO LIMITATION ON THE EXERCISE O F THE APPELLATE POWER IN THE STATUTE ON THE GROUND THAT THE ASSESSEE HAD INV OKED THE REVISIONAL POWER UNSUCCESSFULLY, IT IS CONTENDED FOR THE REVEN UE THAT SUCH A LIMITATION SHOULD BE READ INTO THE PROVISION DEALIN G WITH APPEALS UNDER THE IT ACT. THERE IS NO PROVISION IN THE ACT IN EXPRESS TERMS, WHICH SUPPORTS THE ARGUMENTS SO ADVANCED BY THE REVENUE. IT IS NOT DISPUTED THAT THE PROVISIONS DEALING WITH THE APPELLATE AUTHORITIES D O NOT BAR AN APPELLANT FROM INVOKING THE JURISDICTION, IF HE HAD INVOKED R EVISIONAL JURISDICTION, EVEN THOUGH FOR INVOKING REVISIONAL JURISDICTION, I T IS A PRECONDITION THAT THE APPELLATE JURISDICTION SHOULD NOT HAVE BEEN INVOKED . 2. THE ARGUMENT ADVANCED BEFORE US IS THAT BY INFE RENTIAL REASONING WE SHOULD HOLD THAT IF THERE IS A LIMITATION ON EXERCI SE OF REVISIONAL POWER A SIMILAR LIMITATION SHOULD BE READ INTO THE EXERCISE OF THE APPELLATE POWER. IT DOES NOT REQUIRE ANY AUTHORITY TO HOLDING THAT IT I S NOT THE PROVINCE OF THE ITA NO. 282(ASR)/2017 ASSESSMENT YEAR: 2010-11 4 COURT TO REWRITE THE LAW ON THE GROUND THAT THE PRO VISION SHOULD HAVE BEEN WORDED IN THE DIFFERENT MANNER IN ORDER TO MAKE IT SEEMINGLY CONSISTENT WITH SOME OTHER PROVISION. MOREOVER, IT IS WHOLLY U NNECESSARY FOR PARLIAMENT TO IMPOSE THE SAME KIND OF RESTRICTION F OR INVOKING DIFFERENT KINDS OF JURISDICTION. IT IS OPEN TO THE LAW-MAKER TO PROVIDE MORE THAN ONE REMEDY TO THE AGGRIEVED PARTY AND SO LONG AS SUCH R EMEDIES ARE AVAILABLE, THE AGGRIEVED PARTIES CAN CERTAINLY INVOKE THEM. 3. THE TRIBUNAL HAS RIGHTLY HELD THAT THE ASSESSEE, NOTWITHSTANDING HIS UNSUCCESSFUL EFFORT AT HAVING THE ORDER REVISED, CO ULD STILL FILE AN APPEAL AS INVOKING THE REVISIONAL JURISDICTION COULD NOT CONS TITUTE A BAR TO THE FILING OF AN APPEAL. IT IS FOR THE LEGISLATURE TO IMPOSE SUCH A BAR IF IT CONSIDERS IT NECESSARY TO DO SO. 4. WE, THEREFORE, FIND NO ERROR IN THE ORDER OF THE TRIBUNAL. WE ANSWER THE QUESTION AS TO 'WHETHER, ON THE FACTS AND IN THE CI RCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE AAC WAS JUSTIFIED IN ENTERTAINING THE ASSESSEE'S APPEAL AGAINST THE ASSESSMENT EVEN T HOUGH THE CIT HAD PASSED AN ORDER UNDER S. 264 AGAINST THE ASSESSEE A ND HOLDING THAT THE PROVISIONS OF S, 154 WERE APPLICABLE AND A REVISION WAS NOT BARRED BY LIMITATION' IN FAVOUR OF THE ASSESSEE AND AGAINST T HE REVENUE. NO COSTS. FOLLOWING THE ABOVE JUDGMENT, THE AMRITSAR BENCH O F THE TRIBUNAL VIDE ITS ORDER DATED 03.06.2016 IN THE CASE OF SHRI RAJAN DATTA HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. THE RELEVA NT FINDINGS OF THE ORDER OF TRIBUNAL AS PARA 7 ARE REPRODUCED BELOW: 7. HAVING HEARD BOTH THE PARTIES, WE ARE OF THE CO NSIDERED VIEW THAT THE ID. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPE ALS OF THE ASSESSEE BEING INCOMPETENT, PARTICULARLY, IN VIEW OF THE RELIANCE PLACED BY THE ASSESSEE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT, IN T HE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI, 250 ITR 187 (MAD.). ACCORDIN GLY, WE REMIT ALL THE THREE APPEALS TO THE FILE OF THE ID. CIT(A) TO DECI DE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING ALL THE DOCUM ENTARY EVIDENCES TO BE PLACED BY THE ASSESSEE IN THE COURSE OF FRESH PROCE EDINGS AND AFTER AFFORDING DUE AND ADEQUATE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. THE ASSESSEE, NOT DOUBT, SHALL COOPERATE IN THE FRE SH PROCEEDINGS BEFORE THE ID. CIT(A). HENCE, ALL THE THREE APPEALS ARE AL LOWED FOR STATISTICAL PURPOSES. IN VIEW OF THE ABOVE JUDICIAL PRECEDENTS WE DIRECT THE LD. CIT(A) TO ADMIT THE APPEAL OF ASSESSEE AND HEAR THE APPEAL ON MERITS. ITA NO. 282(ASR)/2017 ASSESSMENT YEAR: 2010-11 5 6. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04.12.2017 SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04.12.2017. /GP/SR. PS . COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER