Commissioner Of Income Tax vs. O.P.Bagdiya

1 Income Tax Appeal No.22/2006 22.09.2014 Shri R.L. Jain, learned Senior Counsel with Ms. Veena Mandlik, learned counsel for the appellant / Revenue. Heard on the question of admission. This appeal under Section 260-A of the Income Tax Act has been filed by the Income Tax Appellate Tribunal, Indore Bench (for short, the Tribunal) in Income Tax Appeal No.56/IND/1999 in respect of Assessment Year 1995-96. The Tribunal dismissed the appeal filed by the appellant / Revenue by placing reliance on its earlier order dated 27.02.2003 passed in Income Tax Appeals No.484 and 485 of 2002. Undisputedly, earlier order dated 27.02.2003, on being challenged before this Court in Income Tax Appeal No.59/2003, the appellant's appeal has been dismissed by a Division Bench of this Court vide order dated 18.10.2004 maintaining the order passed by the Tribunal by observing thus: - “5. Having heard learned counsel for the appellant and having perused record of the case, we are of the view that the appeal has no substance. In other words, the appeal does not involve any substantial question of law as is required to be made out under s. 260A of the Act and hence, the appeal is liable to be dismissed in limine. 6. The dispute relates to a question as to whether report of DVO could be relied upon by AO for making assessment in question which was called by AO pursuant to order of commission issued under s. 131(1)(d) of the Act. According to Tribunal, firstly in the earlier assessment year cases, the Tribunal having held in favour of assessee that the report of DVO could not have been taken into account, the AO and CIT(A) were bound by the orders of Tribunal for deciding the 2 same issue arising in subsequent years. Secondly, the report of DVO having been obtained beyond the period fixed in the commission issued, the same could not be relied on. We concur with both the findings. In any event, in view of recent decision of Supreme Court in somewhat similar cases, wherein it is ruled that no commission under s. 131(1)(d) can be issued for calling report of DVO by AO, the impugned orders of Tribunal deciding the issue in favour of assessee do not call for any interference. In other words, it was rightly held that the orders passed by Tribunal in respect of same DVO report for the earlier assessment orders should have been relied upon by AO and the CIT(A) to maintain judicial discipline and secondly, in the absence of any extension obtained, the report of DVO beyond the period fixed, could not be relied upon and lastly, in view of recent pronouncement of Supreme Court interpreting powers of AO regarding issuance of commission under s. 131 (1)(d) to DVO the issue must be decided and rightly decided by Tribunal in favour of assessee. 7. In this view of the matter, the appeal does not involve any substantial question of law and hence, it is dismissed in limine.” Keeping in view the aforesaid order passed by the Division Bench and for the reasons stated by this Court in the aforesaid order dated 18.10.2004 passed in ITA No.59/2003, we dismiss this appeal.

(Shantanu Kemkar) (Jarat Kumar Jain) Judge

Judge Pithawe RC