M/s Tongani Tea Co. Ltd., Kolkata V. JCIT(OSD), Circle -4, Kolkata, Kolkata

MA 118/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6291 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 06-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: D S DAMLE
• Keywords: Reopening of assessment; Gift; Bad and doubtful debts; Validity of assessment; Reason to believe
• Section: 148; 263; 154

Judgement Text

M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NO. 118/KOL/2017 (ARISING OUT OF I.T.A. NO.587/KOL/ 2012) ASSESSMENT YEAR: 2000-2001 M/S. TONGANI TEA CO. LIMITED,...................... ...............................APPLICANT 15B, HEMANTA BASU SARANI, KOLKATA-700 001 [PAN: AAACD 9238 Q] -VS.- JOINT COMMISSIONER OF INCOME TAX (OSD),............ ......................RESPONDENT CIRCLE-4, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI D.S. DAMLE, FCA, FOR THE ASSESSEE SHRI SALLONG YADEN, ADDL. CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : FEBRUARY 16, 2018 DATE OF PRONOUNCING THE ORDER : MARCH 23, 2018 O R D E R PER SHRI P.M. JAGTAP, A.M. :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED JUNE 23, 2017 PASSED IN ITA NO. 587/ KOL/2012. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY. I N THE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 143(3)/147 VIDE AN ORDER DATED 27.12.2005, THE TOTAL INCOME OF THE ASSESSEE UNDER THE NORMAL PROVISIONS OF THE ACT WAS DETERMINED BY THE ASSESSING OFFICER AT RS.10,78,00,000/-, WHILE THE BOOK PROFIT UNDER SECTION 115JA WAS DETER MINED BY HIM AT RS.8,18,91,021/-. THE SAID ASSESSMENT WAS SUBSEQUEN TLY SET ASIDE BY THE LD. CIT VIDE AN ORDER PASSED UNDER SECTION 263 AND IN PURSUANCE OF THE SAID ORDER PASSED BY THE LD. CIT UNDER SECTION 263 AS MODIFIED BY THE TRIBUNAL, A FRESH ASSESSMENT WAS COMPLETED BY THE A SSESSING OFFICER. IN M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 2 OF 11 THE ASSESSMENT SO COMPLETED VIDE AN ORDER DATED 28. 12.2007, THE ASSESSING OFFICER COMPUTED THE INCOME OF THE ASSESS EE AS PER THE NORMAL PROVISIONS OF THE ACT, BUT DID NOT COMPUTE THE BOOK PROFIT UNDER SECTION 115JA, ALTHOUGH CERTAIN OBSERVATIONS WERE MADE BY H IM AS REGARDS THE COMPUTATION OF BOOK PROFIT UNDER SECTION 115JA IN T HE BODY OF THE FRESH ASSESSMENT ORDER. THE MISTAKE IN NOT COMPUTING BOOK PROFIT OF THE ASSESSEE-COMPANY UNDER SECTION 115JA WAS SUBSEQUENT LY REALIZED BY THE ASSESSING OFFICER AND THE SAME WAS RECTIFIED BY HIM VIDE AN ORDER DATED 17.11.2009 PASSED UNDER SECTION 154, WHEREBY HE CO MPUTED THE BOOK PROFIT OF THE ASSESSEE-COMPANY UNDER SECTION 115JA AT RS.2,42,22,069/-. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 154, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE INVOCATION OF PROVISIONS OF SECTION 154 BY THE ASSESSING OFFICER ON THE GROUND THAT THE ISSUE RELATING TO CO MPUTATION OF BOOK PROFIT BEING A HIGHLY DEBATABLE ISSUE WAS BEYOND TH E SCOPE OF SECTION 154. THE LD. CIT(APPEALS) DID NOT FIND MERIT IN THE CASE OF THE ASSESSEE ON THIS ISSUE AND DECIDED THE SAME AGAINST THE ASSESSEE. HE , HOWEVER, FOUND SOME MERIT IN THE OTHER ISSUE RAISED BY THE ASSESSE E RELATING TO COMPUTATION OF BOOK PROFIT BY THE ASSESSING OFFICER UNDER SECTION 115JA AND DIRECTED THE ASSESSING OFFICER TO EXCLUDE 60% O F THE PROFIT AS AGRICULTURAL PROFIT WHILE COMPUTING THE BOOK PROFIT UNDER CLAUSE (II) OF SECTION115JA OF THE ACT. HE ALSO DIRECTED THE ASSES SING OFFICER TO ALLOW A SIMILAR RELIEF TO THE ASSESSEE IN RESPECT OF INTERE ST INCOME. THIS RELIEF ALLOWED BY THE LD. CIT(APPEALS) TO THE ASSESSEE WAS CHALLENGED BY THE REVENUE IN THE APPEAL FILED BEFORE THE TRIBUNAL. TH E ASSESSEE, ON THE OTHER HAND, DID NOT PREFER ANY APPEAL AGAINST THE O RDER OF THE LD. CIT(APPEALS) BEFORE THE TRIBUNAL. AT THE TIME OF HE ARING OF THE REVENUES APPEAL BEFORE THE TRIBUNAL, THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, SOUGHT TO INVOKE RULE 27 OF THE INCOME TAX (APPELLA TE TRIBUNAL) RULES TO RAISE A PRELIMINARY ISSUE CHALLENGING THE INVOCATIO N OF PROVISIONS OF SECTION 154 BY THE ASSESSING OFFICER, WHICH HAD BEE N DECIDED AGAINST THE ASSESSEE BY THE LD. CIT(APPEALS). THE TRIBUNAL FOUN D MERIT IN THE SAID M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 3 OF 11 PRELIMINARY ISSUE RAISED BY THE LD. COUNSEL FOR THE ASSESSEE AND HELD THAT THE COMPUTATION PART OF BOOK PROFIT UNDER SECTION 1 15JA, IN SO FAR AS THE ASSESSEES CASE FOR THE YEAR UNDER CONSIDERATION WA S CONCERNED, BEING A HIGHLY DEBATABLE ISSUE, WAS BEYOND THE SCOPE OF REC TIFICATION PERMISSIBLE UNDER SECTION 154. THE IMPUGNED ORDER OF THE LD. CI T(APPEALS) GIVING RELIEF TO THE ASSESSEE ACCORDINGLY WAS UPHELD BY TH E TRIBUNAL ON THE BASIS OF THE SAID DECISION ON THE PRELIMINARY ISSUE. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ONCE THE TRIBUNAL FOUND THAT THE ISSUE INVOLVED IN THE PROCEEDINGS UN DER SECTION 154 WAS HIGHLY DEBATABLE IN NATURE, THEN THE TRIBUNAL NOT O NLY SHOULD HAVE DISMISSED THE REVENUES APPEAL, BUT SHOULD HAVE ALL OWED FURTHER RELIEF TO THE ASSESSEE BY CANCELLING THE ASSESSING OFFICERS ORDER PASSED UNDER SECTION 154 IN ITS TOTALITY. HE CONTENDED THAT THER E IS THUS A MISTAKE IN THE ORDER OF THE TRIBUNAL IN NOT CANCELLING THE ORD ER OF THE ASSESSING OFFICER PASSED UNDER SECTION 154 IN ITS ENTIRETY AN D THE SAME BEING APPARENT FROM RECORD IS LIABLE TO BE RECTIFIED UNDE R SECTION 254(2). RELYING ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF PRINCIPAL CIT VS.- SUN PHARMACEUTICALS INDUSTRIES LIMITED (86 TAXMANN.COM 148) AS WELL AS THE DECISION OF THE DEL HI BENCH OF THIS TRIBUNAL IN THE CASE OF ITO VS.- SMT. GURINDER KAU R [102 ITD 189], HE CONTENDED THAT THE SCOPE OF RULE 27 OF INCOME TAX ( APPELLATE TRIBUNAL) RULES IS WIDE ENOUGH GIVING SUFFICIENT POWERS TO TH E TRIBUNAL TO CANCEL THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SEC TION 154 AND THERE IS THUS A MISTAKE IN THE ORDER OF THE TRIBUNAL IN NOT CANCELLING THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 W HEN THE RECTIFICATION MADE BY THE SAID ORDER BY THE ASSESSING OFFICER WAS FOUND BY THE TRIBUNAL TO BE BEYOND THE SCOPE OF SECTION 154. 5. THE LD. D.R., ON THE OTHER HAND, CONTENDED THAT THE SCOPE OF RULE 27 OF THE APPELLATE TRIBUNAL RULES, 1963 IS VERY SPECI FIC AND THE RESPONDENT BY INVOKING THE SAID RULE CAN ONLY DEFEND THE ORDER APPEAL AGAINST ON ANY OF THE GROUNDS DECIDED AGAINST HIM EVEN WITHOUT FIL ING AN APPEAL. HE M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 4 OF 11 CONTENDED THAT NEITHER THE ASSESSEE CAN CLAIM NOR T HE TRIBUNAL CAN ALLOW MORE RELIEF BY RELYING ON RULE 27 OF THE APPELLATE TRIBUNAL RULES THAN WHAT IS ALLOWED BY THE LD. CIT(APPEALS) TO THE RESP ONDENT. HE CONTENDED THAT THERE IS THUS NO MISTAKE IN THE ORDER OF THE T RIBUNAL DATED 23.06.2017 PASSED IN ITA NO. 587/KOL/2012 AS ALLEGE D BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE ASSESSEE IN THE PRESENT CASE AS RESPONDENT HAD RAISED THE ISSUE RELATING TO VALIDITY OF THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SEC TION 154 BY INVOKING THE PROVISIONS OF RULE 27 OF THE INCOME TAX (APPELL ATE TRIBUNAL) RULES, 1963 AND AFTER HAVING FOUND THAT THE INVOCATION OF PROCEEDINGS UNDER SECTION 154 BY THE ASSESSING OFFICER ON A HIGHLY DE BATABLE ISSUE WAS NOT JUSTIFIED, THE TRIBUNAL UPHELD THE LD. CIT(APPEALS) S ORDER WHEREBY RELIEF WAS ALLOWED BY THE LD. CIT(APPEALS) TO THE ASSESSEE PARTLY ON THE ISSUE OF COMPUTATION OF BOOK PROFIT INVOLVED IN THE PROCEEDI NGS UNDER SECTION 154. ACCORDING TO THE ASSESSEE, THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL, INASMUCH AS THE TRIBUNAL AFTER HAVING FOU ND THAT THE ISSUE RELATING TO THE COMPUTATION OF BOOK PROFIT UNDER SE CTION 115JA WAS BEYOND THE SCOPE OF SECTION 154 BEING A HIGHLY DEBA TABLE ISSUE OUGHT TO HAVE CANCELLED THE ASSESSING OFFICERS ORDER PASSED UNDER SECTION 154 IN ITS TOTALITY. THE CASE OF THE ASSESSEE THUS IS THAT THE TRIBUNAL SHOULD HAVE ALLOWED MORE RELIEF TO THE ASSESSEE THAN WHAT WAS A LLOWED BY THE LD. CIT(APPEALS) WHILE ALLOWING THE CLAIM MADE BY THE A SSESSEE AS RESPONDENT BY INVOKING RULE 27 OF THE INCOME TAX (A PPELLATE TRIBUNAL) RULES, 1963. IN SUPPORT, THE LD. COUNSEL FOR THE AS SESSEE HAS RELIED ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF PRINCIPAL CIT VS.- SUN PHARMACEUTICALS INDUSTRIES LIMITED (SUPRA) AS WELL AS THE DECISION OF THE DELHI BENCH OF THIS TRIBUNAL IN THE CASE OF ITO VS.- SMT. GURINDER KAUR (SUPRA). M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 5 OF 11 7. WE HAVE CAREFULLY PERUSED BOTH THE JUDICIAL PRON OUNCEMENTS CITED BY THE LD. COUNSEL FOR THE ASSESSEE IN SUPPORT OF T HE ASSESSEES CASE. IN THE CASE OF SUN PHARMACEUTICALS INDUSTRIES LIMITED (SUPRA), THE ASSESSEE WAS A COMPANY REGISTERED UNDER THE COMPANIES ACT AN D IN THE REASSESSMENT COMPLETED IN ITS CASE, VARIOUS ADDITIO NS WERE MADE BY THE ASSESSING OFFICER. IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS), THE ASSESSEE-COMPANY CHALLENGED THE VALIDITY OF REOPENI NG OF ASSESSMENT AND ALSO DISPUTED THE VARIOUS ADDITIONS MADE BY THE ASS ESSING OFFICER IN THE REASSESSMENT. THE LD. CIT(APPEALS) ALLOWED THE APPE AL OF THE ASSSSEE BY ACCEPTING THE ASSESSEES GROUNDS AGAINST THE ADDITI ONS MADE BY THE ASSESSING OFFICER. ON THE QUESTION OF VALIDITY OF R EOPENING OF ASSESSMENT, THE LD. CIT(APPEALS), HOWEVER, HELD AGAINST THE ASS ESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE-COMPANY, HOWEVER, DID NOT PR EFER ANY APPEAL OBVIOUSLY BECAUSE IT WAS GRANTED FULL RELIEF BY THE LD. CIT(APPEALS) BY DELETING ALL THE ADDITIONS MADE BY THE ASSESSING OF FICER. EVEN AFTER THE DEPARTMENT PREFERRED APPEAL BEFORE THE TRIBUNAL, TH E ASSESSEE DID NOT FILE ITS CROSS OBJECTION RAISING THE QUESTION OF VA LIDITY OF THE REOPENING OF ASSESSMENT. LATER ON, THE ASSESSEE-COMPANY, HOWEVER , RAISED THE LEGAL ISSUE OF THE VALIDITY OF ASSESSMENT BEFORE THE TRIB UNAL BY RELYING ON RULE 27 OF THE APPELLATE TRIBUNAL RULES AND DESPITE OBJE CTIONS RAISED FROM THE DEPARTMENT, THE TRIBUNAL NOT ONLY PERMITTED THE ASS ESSEE TO RAISE THE LEGAL ISSUE BUT ALSO DECIDED THE SAME IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THE REOPENING OF ASSESSMENT WAS BAD IN LAW. AG AINST THE ORDER OF THE TRIBUNAL, THE DEPARTMENT PREFERRED AN APPEAL BEFORE THE HONBLE GUJARAT HIGH COURT AND THE RELEVANT QUESTION RAISED ON THE ISSUE WAS WHETHER THE TRIBUNAL WAS RIGHT IN LAW IN ALLOWING THE RESPONDEN T-ASSESSEE TO RAISE THE QUESTION OF VALIDITY OF NOTICE FOR REOPENING OF ASS ESSMENT TAKING RECOURSE TO RULE 27 OF THE APPELLATE TRIBUNAL RULES WITHOUT THE ASSESSEE HAVING FILED CROSS APPEAL OR CROSS OBJECTION BEFORE THE TR IBUNAL AGAINST THE ORDER OF THE LD. CIT(APPEALS). IT IS THUS VERY CLEAR THAT IN THE CASE OF SUN PHARMACEUTICALS INDUSTRIES LIMITED (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE IN SUPPORT OF THE ASSESSEES CASE, NO FURTHER OR ADDITIONAL M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 6 OF 11 RELIEF WAS SOUGHT BY THE ASSESSEE THAN WHAT WAS ALL OWED BY THE LD. CIT(APPEALS) BY RELYING ON RULE 27 OF THE APPELLATE TRIBUNAL RULES AND AFTER REFERRING TO THE SAID RULE 27, IT WAS CLEARLY OBSERVED BY THE HONBLE GUJARAT HIGH COURT IN PARA NO. 9 THAT THIS RULE PRO VIDES THAT THE RESPONDENT, THOUGH HE MAY NOT HAVE APPEALED, MAY SUPPORT THE ORDER APPEALED AGAINST ON ANY OF THE GROUNDS DECIDED AGAINST HIM. EXPLAIN ING FURTHER, IT WAS OBSERVED BY THEIR LORDSHIPS THAT TH IS RULE EMBODIES THE FUNDAMENTAL PRINCIPLE THAT THE PERSON, WHO MAY NOT HAVE BEEN AGGRIEVED BY AN ORDER OF THE LOWER AUTHORITY OR THE COURT AND HAS THEREFORE NOT FILED ANY APPEAL AGAINST SUCH ORDER, IS FREE TO DEFEND THE ORDER BEFORE THE APPELLATE FORUM ON ALL GROUNDS INCLUDING THE GROUND, WHICH MAY HAVE BEEN HELD AGAINST HIM BY THE LOWER AUTHORITY O R THE COURT, WHOSE ORDER IS OTHERWISE IN HIS FAVOUR. TO PUT THE CONTRO VERSY BEYOND DOUBT, IT WAS FURTHER CLARIFIED BY THE HONBLE GUJARAT HIGH C OURT IN PARAGRAPH NO. 11 OF ITS ORDER THAT RULE 27 MAKES IT CLEAR THAT TH E 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 WAS A LSO HELD THAT WHEN THE ORDER OF THE COMMISSIONER IS AT LARGE BEFORE THE TRIBUNAL, THE RESPONDENT BEFORE THE TRIBUNAL WOULD BE ENTITLED TO DEFEND THE ORDER OF THE COMMISSIONER ON ALL GROUNDS INCLUDING ON GROUNDS HELD AGAINST HIM BY THE COMMISSIONER WITHOUT FILING AN I NDEPENDENT APPEAL OR CROSS OBJECTION. (EMPHASIS SUPPLIED) 8. SIMILARLY, IN THE CASE OF SMT. GURINDER KAUR (SU PRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE, AN APPEAL WAS FILED BY TH E ASSESSEE BEFORE THE LD. CIT(APPEALS) AGAINST THE ORDER OF THE ASSESSING OFFICER RAISING SEVERAL GROUNDS BOTH AGAINST THE JURISDICTION OF THE ASSESS ING OFFICER TO REOPEN THE ASSESSMENT AND ON MERITS. THE LD. CIT(APPEALS) ANNULLED THE ASSESSMENT HOLDING IT TO BE NULL AND VOID BUT DID N OT DECIDE ON MERITS. THE DEPARTMENT FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(APPEALS) BEFORE THE TRIBUNAL CONTENDING THAT THE LD. CIT(APP EALS) WAS WRONG IN ANNULLING THE REASSESSMENT HOLDING IT TO BE NULL AN D VOID ON THE GROUND THAT THE ASSESSING OFFICER ONLY HAD TO REASON TO S USPECT AND NOT TO M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 7 OF 11 REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX H AD ESCAPED ASSESSMENT. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE TRIBUNAL, FOLLOWING POINTS WERE SOUGHT TO BE RAISED ON BEHALF OF THE AS SESSEE IN DEFENCE OF THE ORDER OF THE LD. CIT(APPEALS):- (A) NO REASONS WERE RECORDED FOR REOPENING THE ASSESSMENT AS REQUIRED BY SECTION 148(2). (B) THE REASONS RECORDED, IF ANY, WERE NOT SUPPLIE D TO THE ASSESSEE DESPITE REPEATED REQUESTS. (C) THE NOTICE UNDER SECTION 148 HAS NOT BEEN SERV ED ON THE ASSESSEE AND NON-SERVICE OF THE NOTICE IS FATAL TO THE VALIDITY OF THE REASSESSMENT. (D) THE ASSESSING OFFICER HAS NOT TAKEN THE APPROV AL OF THE JT. CIT BEFORE ISSUING THE NOTICE UNDER SECTION 148 AS REQUIRED BY SECTION 151(1) OF THE ACT. (E) SECTION 148 CANNOT BE USED FOR MAKING A FISHING OR ROVING ENQUIRY. IN THIS CASE, THE ASSESSING OFFICER WAS MERELY CALLED UPON BY THE DCIT TO EXAMINE AND INVESTIGATE THE MATTER WHEREAS THE ASSESSING OFFICE R CHOSE TO SHORTCUT THE PROCEEDINGS AND PROCEEDED TO ISSUE THE NOTICE BEFORE FORMATION OF THE BELIEF. (F) THE MERE ALLEGATION MADE BY THE CIB THAT THE ASSESSEE PURCHASED THE GIFT FROM KOCHHAR IS NOT RELEVANT FOR THE FORMATION OF THE BELIEF AND BEFORE ISSUING THE NOTICE UNDER SECTION 148, THE ASSESSING OFFICER FAILED TO CARRY OUT THE NECESSARY ENQUIRY WHICH ALONE COULD HAVE GIVEN HIM THE MATERIAL FOR THE FORMATION OF THE REQUISITE BELIEF. SINCE NO SUC H INVESTIGATION WAS CARRIED OUT, THE NOTICE UNDER SECTION 148 WAS BASED MERELY ON THE ALLEGATION OF THE CIB AND WAS BASED ONLY ON REASON TO SUSPECT. THE DEPARTMENT, HOWEVER, RAISED A PRELIMINARY OBJEC TION TO THE EFFECT THAT THE ASSESSEE COULD NOT GO BEYOND THE ORDER OF THE LD. CIT(APPEALS) AND RAISE THE POINTS, SUCH AS NON-RECORDING OR NON- DISCLOSURE OF THE REASONS FOR REOPENING THE ASSESSMENT, NON-SERVICE O F THE NOTICE UNDER SECTION 148 AND THE QUESTION OF APPROVAL OF THE JCI T UNDER SECTION 151(1). IT IS IMPORTANT TO NOTE HERE THAT NO FURTHE R OR ADDITIONAL RELIEF THAN WHAT HAD BEEN ALLOWED BY THE LD. CIT(APPEALS) WAS SOUGHT BY THE ASSESSEE AND WHILE MEETING THE PRELIMINARY OBJECTIO N RAISED BY THE DEPARTMENT, RELIANCE WAS NOT ONLY PLACED ON BEHALF OF THE ASSESSEE ON RULE 27 OF THE APPELLATE TRIBUNAL RULES BUT ALSO ON VARIOUS JUDICIAL M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 8 OF 11 PRONOUNCEMENTS TO CONTEND THAT THE ASSESSEE WAS ENT ITLED TO RAISE THESE POINTS. THE TRIBUNAL FIRST RELIED ON RULE 27 TO HOL D THAT IT WAS OPEN TO THE ASSESSEE TO RAISE THE QUESTION OF NON-RECORDING OF REASONS AS THE RESPONDENT IN AN APPEAL CAN SUPPORT THE ORDER APPEALED AGAINST ON ANY OF THE GROUNDS DECIDED AGAINST HIM, EVEN THOUGH HE MAY NOT HAVE FILED AN INDEPENDENT APPEAL OR CROSS OBJECTION AND THEN PROC EEDED TO CONSIDER AND DECIDE THE CASE OF THE ASSESESE EVEN DE HORS RULE 27 OF THE APPELLATE TRIBUNAL RULES. IN THIS REGARD, RELIANCE WAS PLACED BY THE TRIBUNAL ON THE VARIOUS JUDICIAL PRONOUNCEMENTS CITED ON BEHALF OF THE ASSESESE INCLUDING THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF HUKAM CHAND MILLS LTD. VS.- CIT [63 ITR 232] TO HOLD THAT EVEN ASSUMING THAT RULE 27 OF THE APPELLATE TRIBUNAL RULES WAS NOT STRICTLY AP PLICABLE, THE TRIBUNAL HAD THE INHERENT POWERS UNDER SECTION 254(1) TO EN TERTAIN THE ARGUMENT OF THE RESPONDENT WHICH AMOUNTED TO A NEW GROUND. I T IS THUS CLEAR THAT THE FACTS INVOLVED IN THE CASE OF SMT. GURINDER KAU R (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE WERE MATERIALLY DIFFER ENT, INASMUCH AS NO FURTHER OR ADDITIONAL RELIEF WAS SOUGHT BY THE ASSE SSEE BEFORE THE TRIBUNAL THAN WHAT HAD BEEN ALLOWED BY THE LD. CIT( APPEALS) AND THE CASE WAS NOT ONLY MADE OUT BY THE ASSESSEE DE HORS RULE27, BUT THE SAME WAS ALSO CONSIDERED AND DECIDED BY THE TRIBUNAL ASSUMIN G THAT RULE 27 WAS NOT STRICTLY APPLICABLE. IN THE PRESENT CASE, THE C ASE WAS ARGUED BY THE ASSESSEE BY RELYING ON RULE 27 OF THE APPELLATE TRI BUNAL RULES, 1963 AND NO CASE HAVING BEEN MADE OUT DE HORS THE SAID RULE, THERE WAS NO OCCASION FOR THE TRIBUNAL TO CONSIDER SUCH ALTERNAT IVE CLAIM. (EMPHASIS SUPPLIED) 9. IT IS OBSERVED THAT THE CHANDIGARH BENCH OF THIS TRIBUNAL HAD AN OCCASION TO CONSIDER THE SCOPE OF RULE 27 OF THE IN COME TAX (APPELLATE TRIBUNAL) RULES IN THE CASE OF INSPECTING ASSISTANT COMMISSIONER VS.- PANIPAT COOPERATIVE SUGAR MILLS LIMITED [3 ITD 734] AND IT WAS HELD BY THE TRIBUNAL THAT THE RIGHT GRANTED TO THE RESPONDE NT UNDER RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 IS LIMI TED. ALL THAT THE RESPONDENT CAN DO IS TO SUPPORT THE ORDER OF THE APPELLATE AUTHORITY AS M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 9 OF 11 A RESPONDENT, WHO HAS NEITHER COME IN APPEAL NOR IN CROSS OBJECTION. HE CANNOT ASK FOR A FINDING DIFFERENT FROM THAT OF THE FIRST APPELLATE AUTHORITY ON THE BASIS OF REARGUING THE GROUNDS REJ ECTED BY THE FIRST APPELLATE AUTHORITY. (EMPHASIS SUPPLIED) 10. IT IS ALSO OBSERVED THAT THERE IS A DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS.- JAMNADAS VIRJI SHARES & STOCK BROKERS PVT. LIMITED [258 CTR 458], WHICH IS DIRECTLY ON TH E ISSUE. IN THE SAID CASE, THE ASSESSING OFFICER HAD DISALLOWED THE ENTI RE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF BAD DEBTS AMOUNTING TO RS.28,69,951/-. ON APPEAL FILED BY THE ASSESSEE, THE LD. CIT(APPEALS) CONFIRMED THE SAID DISALLOWANCE TO THE EXTENT OF RS.14,96,064/- AND AL LOWED THE APPEAL OF THE ASSESSEE TO A LIMITED EXTENT BY GRANTING THE CL AIM TO THE EXTENT OF RS.13,73,887/-. THE ORDER OF THE LD. CIT(APPEALS) G IVING THE SAID RELIEF TO THE ASSESSEE WAS CHALLENGED BY THE REVENUE IN THE A PPEAL FILED BEFORE THE TRIBUNAL. ALTHOUGH THERE WAS NO APPEAL VALIDLY FILE D BY THE ASSESSEE BEFORE THE TRIBUNAL, THE ASSESSEE INVOKED RULE 27 O F THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. THE TRIBUNAL ACCE PTED THE CASE MADE OUT BY THE ASSESSEE BY RELYING ON THE SAID RULE 27 AND SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) IN ITS ENTIRETY BY RESTORIN G THE ISSUE RELATING TO THE DISALLOWANCE TO THE ASSESSING OFFICER TO THE EX TENT OF RS.28.69 LAKHS. THE MATTER WAS CARRIED BY THE REVENUE TO THE HONBL E BOMBAY HIGH COURT AND THEIR LORDSHIPS HELD THAT IT WAS ONLY OPEN TO T HE ASSESSEE TO SUPPORT THE ORDER OF THE CIT(APPEALS) ON ANY OF THE GROUNDS DECIDED AGAINST HIM. IT WAS HELD THAT THE RIGHT OF THE ASSESSEE TO SUPPORT THE ORDER OF THE CIT(APPEALS) WOULD MEAN THAT THE ASSESSEE WOULD BE ENTITLED TO URGE THAT THE DELETION OF THE DISALLOWANCE TO THE EXTENT OF R S.13.73 LAKHS BY THE CIT(APPEALS) WAS CORRECT AND PROPER AND HE WOULD NO T BE ENTITLED TO AVAIL OF THE BENEFIT OF THE PROVISIONS OF RULE 27 I N REGARD TO THAT PART OF THE ORDER OF THE CIT(APPEALS) WHICH, UPON CONSIDERA TION OF THE EVIDENCE, CONFIRMED THE DISALLOWANCE OF RS.14.96 LAKHS MADE B Y THE ASSESSING OFFICER. THE ORDER OF THE TRIBUNAL ACCORDINGLY WAS CONFIRMED BY THE HONBLE BOMBAY HIGH COURT ONLY TO THE EXTENT TO WHI CH IT RESTORED THE M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 10 OF 11 PROCEEDINGS TO THE ASSESSING OFFICER AS REGARDS THE AMOUNT OF RS.13.73 LAKHS. (EMPHASIS SUPPLIED) 11. THE RATIO LAID DOWN IN THE VARIOUS JUDICIAL PR ONOUNCEMENTS AS DISCUSSED ABOVE MAKES IT CLEAR THAT THE SCOPE OF RU LE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 IS LIMITED AND THE RESPONDENT IN AN APPEAL BEFORE THE TRIBUNAL CAN INVOKE THE SAID RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 ONLY TO SUPPORT TH E ORDER APPEALED AGAINST ON ANY OF THE GROUNDS DECIDED AGAINST HIM A ND CANNOT SEEK ANY FURTHER OR MORE RELIEF THAN WHAT HAS BEEN GRANTED T O HIM BY THE LD. CIT(APPEALS). WE, THEREFORE, FIND NO MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 23.06.2017 (SUPRA) IN NOT GRANTING SUCH MORE RELIEF TO THE ASSESSEE BY RELYING ON RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. IN OUR OPINION, THERE IS THUS NO MISTAKE MUCH LESS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 23.0 6.2017 (SUPRA) AS ALLEGED BY THE ASSESSEE IN THE PRESENT MISCELLANEOU S APPLICATION. WE, THEREFORE, DISMISS THIS MISCELLANEOUS APPLICATION F ILED BY THE ASSESSEE BEING DEVOID OF ANY MERIT. 12. IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 23, 201 8. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 23 RD DAY OF MARCH, 2018 COPIES TO : (1) M/S. TONGANI TEA CO. LIMITED, 15B, HEMANTA BASU SARANI, KOLKATA-700 001 (2) JOINT COMMISSIONER OF INCOME TAX (OSD), CIRCLE-4, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 M.A. NO. 118/KOL/2017 (IN I.T.A. NO. 587/KOL./2012) ASSESSMENT YEAR: 2000-2001 PAGE 11 OF 11 (3) COMMISSIONER OF INCOME TAX (APPEALS)-IV, KOLK ATA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.