Dr.Mrs.Shalini Saxena vs. Ito-2 (2)

ITA/158/2009HC Madhya Pradesh31 January 2014Bench: HON'BLE THE CHIEF JUSTICE2 pages

For Petitioner: Sumit NemaFor Respondent: Sanjay Lal

AI SummaryDismissed

What did the High Court hold?

The Tribunal upheld the finding of fact recorded by the subordinate authorities and the Tribunal itself, specifically noting in Paragraph No. 6 of its order that no argument was advanced by the appellant regarding other additions during the hearing of the appeal. The High Court found this finding of fact to be unexceptionable and not open to challenge. The Court emphasized that it could not sit over this finding or ignore it simply because the advocate stated otherwise. The appellant was not permitted to raise grievances about other additions for the first time before the High Court, and an affidavit filed by the counsel could not be the basis to ignore the Tribunal's finding of fact. The Court also noted that the appellant failed to point out the inapplicability of the Apex Court decision in Goetze India Limited Vs. CIT – 284 ITR 323 to the present facts. Therefore, the High Court concluded that the case did not involve a substantial question of law. The appeal was dismissed.

What were the facts?

This Indian ITAT judgment concerns an appeal filed by Shri Mukesh Agrawal (appellant) against an order of the Income Tax Appellate Tribunal (Tribunal). The respondent is the revenue. The assessment year(s) are not explicitly stated. The appeal challenges the Tribunal's decision dated 11.1.2008 and 29.5.2009. The procedural history indicates a previous occasion where the appellant's grievance was that their advocate had argued other points which were not adverted to in the Tribunal's order. The Court had granted liberty to approach the Tribunal for correction of the record. The Tribunal, on that application, found as a fact that no arguments were advanced regarding other additions during the appeal hearing. The appellant sought to raise grievances about these other additions for the first time before the High Court, which was not permitted. The amount in dispute is not specified.

What were the issues?

1. Whether the Tribunal erred in its finding of fact that no arguments were advanced by the appellant regarding other additions during the appeal hearing, thereby precluding the appellant from raising grievances about these additions before the High Court? (Mixed question of law and fact, concerning the procedural fairness and the scope of arguments before the Tribunal). Assessee's contentions: The appellant contended that their advocate had argued other points and relied on a decision of the Tribunal, which was not adverted to in the impugned judgment. They sought to raise grievances about other additions for the first time before the High Court. Revenue's contentions: The revenue, through the Tribunal's findings, argued that no evidence or submission was made with regard to other additions. The Tribunal found as a fact that no arguments were advanced concerning other additions during the appeal hearing, based on the record. The revenue implicitly supported the Tribunal's finding that it was not open for the appellant to make grievances about other additions for the first time before the High Court. The revenue also relied on the principle that an affidavit filed by the counsel cannot override a finding of fact recorded by the Tribunal.

AI-generated summary — verify with the full judgment below

---1--- I.T. A. No.158/2009 31.1.2014 Shri Mukesh Agrawal, learned counsel for the appellant. Shri Sanjay Lal, learned counsel for the respondent. Heard counsel for the parties. We have perused the decisions of the Income Tax Appellate Tribunal dated 11.1.2008 as also dated 29.5.2009 and the other decisions of the sub-ordinate Authorities. We are in agreement with the view taken by the Tribunal in Paragraph No.10 of the impugned judgment. If the said finding are to be upheld the conclusion reached by the Tribunal ought to follow. The same is unexceptionable. The Tribunal in Paragraph No.11 has also pointedly noted that no evidence or submission made with regard to other additions. Instead, the grievance made before this Court on the earlier occasion was that the Advocate for the appellant had argued other points and also relied on the decision of the Tribunal, which has not been adverted to. The Court gave liberty to the appellant to approach the Tribunal for correction of the record. On that application, the Tribunal has found as of fact and has noted in Paragraph No.6 that in regard to other additions no argument was advanced during the course of hearing of the appeal, as is apparent from the record as well. It is not open for us to sit over this finding of fact noted by the Tribunal or to ignore the same merely because the Advocate states to the contrary. It is not open for the appellant to make grievance about other additions for the first time before this Court. The affidavit filed by the counsel cannot be the basis to ignore the finding of fact recorded by the Tribunal. In any case, the ---2--- Tribunal has, in our opinion, justly disposed of the cross objection filed by the appellant. The fact that no reference is made to the Tribunal's decision relied by the appellant in the impugned judgment, does not mean that the conclusion reached by the Tribunal is wrong, so long as the appellant fails to point out that the decision of the Apex Court in the case of Goetze India Limited Vs. CIT – 284 ITR 323, (S.C.) is inapplicable to the fact situation of the present case. That is not the argument before us, nor has been so stated in the appeal memo. Taking any view of the matter, it is not a case involving substantial question of law. The appeal is dismissed accordingly. (A. M. Khanwilkar) (Krishn Kumar Lahoti) Chief Justice Judge Anchal

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