The ITO, Ward-3(1)(1), Rajkot V. Shri Girishkumar M. Puruswani, RAJKOT-GUJARAT

MA 27/RJT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 9128 (ITAT-RAJKOT)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-10-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 13-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 148; 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted Through Virtual Court) Before: Shri Waseem Ahmed, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member The ITO, Ward-3(1)(1), Rajkot (Appellant) Vs Shri Girishkumar Mohanlal Puruswani 245-Royal Complex, Dhebar Road, Rajkot Gujarat-360001 PAN: ADKPP3934F (Respondent) Revenue Represented: Shri Ashish Kumar Pandey, Sr. DR Assessee Represented: Shri Mehul Ranpura, A.R. Date of hearing : 20-10-2023 Date of pronouncement : 17-01-2024 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- These Miscellaneous Applications are filed by the Revenue as against common order dated 31.01.2023 passed in ITA Nos. 405 to 407/Rjt/2016. These M.As. are filed by the Income Tax Officer, Ward-3(1)(1), Rajkot as follows: “.....4. The Hon'ble ITAT, Rajkot Bench, Rajkot vide common order passed vide ITA No. 405 to 407/RJT/2016 dated 31.01.2023 [For A.Y 2008-09 to A.Y 2010 11] has disposed of all three appeals against the revenue vide above mentioned common order by stating that since common disallowance/additions are involved and common grounds are raised by M.A. Nos: 25 to 27/RJT/2023 (in ITA Nos: 405 to 407/RJT/2016) Assessment Year 2008-09 M.A. Nos. 25 to 27/Rjt/2023 A.Y. 2008-09 Page No ITO Vs. Shri Girishkumar M. Puruswani 2 the Revenue, except the change in the figures of disallowances, thus all these three appeals are taken up for common disposal. 5. The Hon'ble ITAT, Rajkot Bench, Rajkot vide above mentioned common order has adjudicated for A.Y 2008-09 on the grounds appealed by the revenue by mentioning at Para no.7.3 on page 16 that the grounds raised by the Revenue are devoid of merits and the same is hereby rejected. On merits of grounds, the written submission dtd.21.12.2022 filed on 22.12.2022 of the Ld.CIT(DR) were duly submitted during the course of hearing by the Ld. CIT (DR). But the bench has neither mentioned nor considered the submissions of the department, only mentioned a small conclusion of Ld. CIT(DR)'s submission in Para No.5 on page no. 10, while the submission of Ld. A.R has been mentioned in detail. Further, it is seen that the bench has not countered any of the arguments and decisions referred by the Ld. CIT(DR) and final decision of the bench at Para no.7.3 on page 16 has been arrived at by referring to only the submissions and court decisions of the appellant. 6. After going through the order of the Hon. Rajkot Bench, it is noticed that the bench has not taken note of Ld. D.R's written submissions dtd.21.12.2022 filed on 22.12.2022. The Hon. Rajkot Bench only mentioned a small conclusion of Ld.CIT(DR)'s submission in Para no.5 on page no.10 and has not taken into consideration the arguments/written submissions dtd.21.12.2022 as well as has not distinguished the case laws cited by the department in the adjudication of this appeal, while the submission of Ld.A.R has been mentioned in detail. The Hon. ITAT Rajkot bench has not countered any of the arguments and decision referred by the Ld. D.R and final decision of the bench at Para no.7.3 on page 16 was arrived at by referring to only the submissions and court decisions of the appellant The Hon. ITAT Rajkot Bench held that the grounds raised by the Revenue are devoid of merits and the same is hereby rejected. In accordance with the directions of Hon. High Court of Gujarat in the case of Dattani & Co, v/s ITO(2014) 41 Taxxman.co 360 Gujarat, which mandates that "Tribunal is bound to consider decision cited and relied upon by either party". 7. In the facts and circumstances narrated above, the common order No. ITA No. 405 to 407/RJT/2016 dated 31.01.2023 of the Hon'ble ITAT, Rajkot Bench, Rajkot for assessment year 2008-09 may be recalled for fresh adjudication. Accordingly, the Hon'ble ITAT is requested to re- consider the above stated submission/arguments filed/argued by the Ld.CIT (DR) during the course of hearings in the appeal and adjudicate the same.” M.A. Nos. 25 to 27/Rjt/2023 A.Y. 2008-09 Page No ITO Vs. Shri Girishkumar M. Puruswani 3 2. The Ld. Sr. D.R. Shri Ashish Kumar Pandey appearing for the Revenue in support of the M.As. requested to recall the common order passed by this Tribunal and pass fresh orders. 3. Per contra Ld. Counsel Shri Mehul Ranpura appearing for the assessee submitted before us that the above common order of the Tribunal was challenged by the Revenue before the High Court of Gujarat in Tax Appeal Nos. 416, 428 and 403 of 2023 against ITA Nos. 405 to 407/Rjt/2016 with the following common questions of Law (except change in figures in question no. 3 namely – additions made on account of unexplained cash deposits) and the Court’s order received by the assessee from the High Court Registry as follows: Court’s Order: CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date: 04/09/2023 ORAL ORDER (PER : HOUNOURABLE MR. JUSTICE BIREN VAISHNAV) 1. Heard learned advocate Mr. Karan Sanghani for the appellant. 2. Tax Appeal is admitted for consideration for following substantial questions of law: (ii) Whether the Hon’ble Tribunal was justified in confirming the order passed by the CIT(A) treating the notice issued u/s. 148 of the Act as invalid and bad in law? (ii) Whether the Hon’ble Tribunal was justified in confirming the order passed by the CIT(A) treating the notice issued u/s. 148 of the Act as invalid and bad in law even though the AO had sufficient information? (iii) Whether the Hon’ble Tribunal was justified in confirming the order passed by the CIT(A) deleting the addition of Rs.9,80,77,641/- made by the Assessing Officer on account of unexplained cash deposit? M.A. Nos. 25 to 27/Rjt/2023 A.Y. 2008-09 Page No ITO Vs. Shri Girishkumar M. Puruswani 4 3. To be heard with Tax Appeals No. 88/2021 and 189/2023. (BIREN VAISHNAV, J) BHARGAV D. KARIA, J) JYOTI V. JANI 3.1. Thus Ld. Counsel submitted that the Tax appeals were admitted with the above following Questions of Law on 04.09.2023 and notices were ordered to the respondent/assessee. It is well settled Principle of Law that the aggrieved party can raise every Question of Law against any impugned order, before the Hon’ble High Court of Judicature. Therefore having filed statutory appeals u/s. 260A of the Act, and also filing parallel Miscellaneous Applications are not maintainable in law. 4. We have given our thoughtful consideration and perused the Miscellaneous Applications filed by the Revenue. The Revenue could not dispute the filing of appeals before the Hon’ble Jurisdictional High Court as against the common order passed by this Tribunal. The Revenue being an aggrieved person, it is always open to it to challenge every issue arising from the Tribunal order before the Jurisdictional High Court by raising appropriate Questions of Law. 4.1. At the same time, the power of the Tribunal under section 254 is very limited and Hon’ble Gujarat High Court in the case of CIT vs Muni Seva Ashram reported in (2013) 38 taxmann.com 110 held that when appeal has been filed before the Hon’ble High Court and the appeal is admitted by framing Substantial Questions of Law in the said appeal, then the Tribunal cannot recall its order in the M.A. Nos. 25 to 27/Rjt/2023 A.Y. 2008-09 Page No ITO Vs. Shri Girishkumar M. Puruswani 5 Miscellaneous Application. The relevant portion of the Jurisdictional High Court Judgment reads as follows: “.....6. In view of the above stand taken by the learned counsel appearing on behalf of the respondent-assessee recorded hereinabove, more particularly when against the impugned Judgment and order dtd. 11/7/2008 passed in ITA No.633/Ahd/2008, which has been recalled subsequently by the ITAT, Tax Appeal No. 1231 of 2008, was already admitted on the substantial questions of law framed in the said appeal, Impugned orders cannot be sustained. 7. In view of the above stand taken by the learned counsel appearing on behalf of respondent assessee, recorded hereinabove, we are not passing any further reasoned order.” 5. Similar view was taken by the Delhi High Court in the case of R.C. Sabharwal vs CIT reported in (2010) 2 taxmann.com 289 (Delhi) observing as follows: “.....3. The Tribunal, application of appellants under section 254 of the Income Tax Act, has inter alia observed that it is not open to go into merits of case again and come to a finding different from the one already arrived at and if view taken by, Tribunal erroneous, remedy lies in filing an appeal against impugned orders passed by the Tribunal and those orders are already subject matter of appeal, as mentioned above. 4. In these circumstances, while reserving the right of the appellants to urge the grounds pointing out the purported errors apparent on face of record in impugned orders while arguing those appeals, these appeals are disposed of. 6. The above two Judgments were followed by the Jurisdictional High Court in a very recent batch of 68 appeals filed by the Revenue in the case of PCIT vs Hitesh Ashok Vaswani reported in (2023) 459 ITR 610 (Guj) wherein it is held as follows: “... 15. In the light of the decisions in the case of R.C. Sabharwal vs CIT reported in (2010) 2 taxmann.com 289 (Delhi) and in the case of CIT vs Muni Seva Ashram reported in (2013) 221 taxmann.com 27 (Guj.), in such petitions where tax appeals are filed by the Revenue in the respective categories, the petition so filed are not entertained, while reserving the right of the Revenue to urge the grounds in these petitions while arguing the appeals. The following petitions in which the Revenue has filed Tax. Appeals and are pending are not entertained reserving the liberty to urge M.A. Nos. 25 to 27/Rjt/2023 A.Y. 2008-09 Page No ITO Vs. Shri Girishkumar M. Puruswani 6 the grounds raised in the respective tax case appeal. These petitions are accordingly disposed of without assigning any further reasons”. 6.1. Respectfully following the above judicial precedents by the Jurisdictional High Court and Delhi High Court, the present Miscellaneous Applications filed by the Revenue are not maintainable, since the Revenue had already filed Tax Appeals u/s. 260A before the Jurisdictional High Court and Substantial Questions of Law already framed, admitted and pending adjudication before the Jurisdictional High Court of Gujarat. Needless to say, it is always open to the Revenue to argue all its grievances by raising appropriate Questions of Law before the Jurisdictional High Court in the manner known to law. 7. Therefore the above Miscellaneous Applications are hereby dismissed as not maintainable. Order pronounced in the open court on 17-01-2024 Sd/- Sd/- (WASEEM AHMED) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 17/01/2024 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, राजकोट