Sir Syed Education And Social Welfare Society vs. Assistant Commissioner Of Income Tax1 (1)

HIGH COURT OF MADHYA PRADESH : JABALPUR (Division Bench) I.T.A. No.102/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.103/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.104/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.105/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.106/2019 Sir Syed Educational & Siocial Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.107/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.108/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal ---------------------------------------------------------------------------------- Shri Sumit Nema, Senior Advocate with Shri Mukesh Agrawal, Advocate for the appellant. Shri Sanjay Lal, Advocate for the respondent. ---------------------------------------------------------------------------------- CORAM : Hon'ble Shri Justice R.S. Jha, Acting Chief Justice Hon’ble Shri Justice Vijay Kumar Shukla, Judge O R D E R (Jabalpur, dtd.21.8.2019) Per : R.S. Jha, Acting C.J. - In these appeals filed under Section 260-A of the Income Tax Act, 1961 [hereinafter referred to as “the Act”] an objection regarding maintainability of the appeals against the order passed by the Income Tax Appellate Tribunal, Indore [for short “The Tribunal”] rejecting an application filed under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 [for brevity “the Rules”], is raised by the respondent. Having heard the learned counsel for the parties, we do not find any substance in the same, in view of the decision of the Supreme Court rendered in the case of Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement and another, (2010) 4 SCC 772, wherein the exact terms mentioned in Section 260-A of the Act, namely, “any order passed” were considered and interpreted by the Supreme Court with reference to the provisions of Section 35 of the Foreign Exchange Management Act, 1999. The Supreme Court while interpreting the 2 words “any decision or order of the appellate authority” has held that the word “any” would mean “all” orders passed by the Appellate Authority. The Supreme Court has held that as the words of the provision providing for appeal are wide enough to include all orders, a litigant cannot be denied the right to appeal conferred by the statutory provision, subject to the conditions mentioned therein, namely, that a substantial question of law arises for adjudication from the order in appeal. 2. In view of the decision rendered by the Supreme Court in Raj Kumar Shivhare (supra) the objection regarding maintainability is rejected and present appeals are held to be maintainable. 3. We have also heard the learned counsel appearing for the parties on merits. On hearing of the parties, we are of the considered opinion that the following substantial question arises for adjudication in these appeals : “Whether the finding of the ITAT that the assessee under garb of the present application is trying to agitate a new ground which was not before the Ld. CIT(A) is perverse and contrary to record inasmuch as ground No.3 raised before CIT(A) was very much in respect of validity of proceedings u/s 153C and thus no new ground was being raised for the first time before the ITAT ?” 3 4. With the consent of the parties the matter is considered and decided on merits. It is submitted by the learned senior counsel for the appellant that the CIT(A) in paras 3.1 and 3.2 of its order, dated 30-8-2012, has apparently drawn an adverse inference against the appellant under Section 153-C of the Act, on the basis of certain papers which were seized from some other individuals and not the assessee. 5. The learned senior counsel for the appellant has also taken this Court through the application filed by the assessee under Rule 27 of the Rules, wherein the assessee has clearly stated that he proposes to assail the findings recorded by the CIT(A) on the grounds No.3 and 4, which have been decided against the assesseee. It is submitted that in such circumstances, it is manifestly clear that the appellant has raised specific grounds to assail the findings recorded by the CIT(A) in the application filed under Rule 27 of the Rules, but the Tribunal by the impugned order dated 8-5-2019 has rejected the application by simply stating that the learned Senior Counsel appearing for the assessee could not point out as to what are the grounds decided against the assessee. It is submitted by the learned senior counsel that when the grounds were specifically mentioned in the application under Rule 27 of the Rules and were apparently evident from the finding recorded in respect of Grounds 4 No.3 and 4 by CIT(A), rejection of the application without considering the same amounts to perversity, giving rise to a substantial question of law for adjudication. The learned senior counsel for the appellant submits that in such circumstances, the impugned order passed by the Tribunal deserves to be set aside and the matter deserves to be remitted back for a detailed decision on the application under Rule 27 of the Rules filed by the appellants on merits. 6. The learned counsel appearing for the respondent- revenue submitted that a bare perusal of the impugned order passed by the Tribunal per se makes it clear that at the time of arguments the learned senior counsel appearing for the assessee failed to point out any ground in the order passed by the CIT(A) that was decided against the assessee. It is submitted that in the absence of the assessee specifically stating and pointing out the grounds that were decided against the assessee, no fault can be found with the order passed by the Tribunal rejecting the application. 7. We have heard the learned counsel for the parties at length and perused the order passed by the CIT(A), dated 30-8- 2012; the application filed by the assessee under Rule 27 of the Rules as well as the impugned order passed by the Tribunal rejecting 5 the application. From a perusal of the aforesaid three documents, it is apparent that the appellant had raised clear and specific grounds in the application filed under Rule 27 of the Rules in respect of the finding recorded by the CIT(A) as regards the ground Nos.3 and 4, and the conclusion recorded against the assessee with the aid of Section 153-C of the Act. It is also evident that the assessee had raised an issue regarding consideration of certain documents which had never been seized from the assessee but were considered by the authorities. It is also evident from a perusal of the order of the CIT(A) and the application filed under Rule 27 of the Rules that these grounds were sought to be raised by the appellant before the Tribunal. 8. In such circumstances, we are of the considered opinion that the impugned order passed by the Tribunal suffers from perversity, as the Tribunal without considering the aforesaid issues has dismissed the application filed by the appellant under Rule 27 of the Rules by merely stating that the counsel for the assessee could not point out the grounds that were decided against him. More so, when the grounds raised by the appellant were manifestly apparent from the order passed by the CIT(A). 6 9. In such circumstances, the substantial question of law framed by the appellant is answered by this Court in favour of the assessee. The impugned order passed by the Tribunal, dated 8-5- 2019 is set aside and the matter is remitted back to the Tribunal for considering and deciding the application under Rule 27 of the Rules filed by the appellants on merits, by taking into consideration the averments made therein as well as the decision of the CIT(A) on the issues decided against the appellant. 10. With the aforesaid observations and directions, the appeals stand allowed and disposed of. (R.S. Jha) (Vijay Kumar Shukla) Acting Chief Justice Judge ac. 7 Digitally signed by AJAY KUMAR CHATURVEDI Date: 2019.08.26 17:38:23 +05'30'