AJIT PHATARPEKAR. vs. THE COMMISSIONER OF INCOME TAX.

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TXA/34/2015HC BombayHCBM05001151201509 April 2015Author: HON'BLE SHRI JUSTICE M. S. SANKLECHA,F. M. REIS5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court found that the Income Tax Appellate Tribunal (ITAT) had failed to take note of the appellants' contentions regarding the inapplicability of the Orient Goa Co. P. Ltd. judgment, particularly in light of the Assessing Officer's findings on Section 172 of the Income Tax Act and the Supreme Court's decision in GE Technology. The revenue's counsel conceded that these contentions were not examined by the ITAT. Consequently, the High Court quashed and set aside the impugned orders passed by the ITAT. The matter was remanded to the ITAT to decide the appeals afresh, after hearing both parties, in accordance with the law. All contentions of both parties on merits were left open. The substantial question of law was answered accordingly.

What were the facts?

The appeals were filed by M/s. Karishma Global Mineral Export Pvt. Ltd., Ajit Ramakant Phatarpekar, and Neelam Ajit Phatarpekar against the Commissioner of Income Tax. The assessment year in question was 2010-11. The appeals challenged orders passed by the Income Tax Appellate Tribunal (ITAT). The High Court noted that the ITAT had failed to consider the appellants' contentions that the judgment in Orient Goa Co. P. Ltd. was not applicable due to the Assessing Officer's findings regarding the non-applicability of Section 172 of the Income Tax Act. The appellants also argued that the Supreme Court's decision in GE Technology rendered the Orient Goa Co. P. Ltd. judgment inapplicable. The revenue's counsel conceded that these contentions were not considered by the ITAT.

What were the issues?

1. Whether the Tribunal was justified in relying on the judgment of this Court in the case of Orient Goa Co. P. Ltd. (325 ITR 554), which the appellants contended was no longer good law after the Supreme Court's decision in GE Technology (327 ITR 456)? Assessee's Arguments: - The judgment in Orient Goa Co. P. Ltd. was not applicable to the present case because the Assessing Officer had found that the provisions of Section 172 of the Income Tax Act were not applicable. - The judgment of the Apex Court in GE Technology, as well as the judgment of this Court in Orient Goa Co. P. Ltd., would not hold the field. Revenue's Arguments: - The revenue's counsel fairly accepted that the contentions raised by the appellants were not considered by the Tribunal and was not averse to the matter being remanded.

Which sections of the Income-tax Act were involved?

Section 172

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
1 Txa33,34,35-15ssm IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEALS NO. 33, 34 & 35 OF 2015 TAX APPEAL NO. 33 OF 2015 M/s. Karishma Global Mineral Export Pvt. Ltd. (through its Director SHRI.AJIT RAMAKANT PHATARPEKAR.) 206, Kamat Towers, Patto Plaza, Panaji, Goa. …..... Appellant. Versus COMMISSIONER OF INCOME TAX Aayakar Bhavan, Patto Plaza, Panaji, Goa 403001. …....... Respondent. TAX APPEAL NO. 34 OF 2015 AJIT RAMAKANT PHATARPEKAR. Major of age, Indian National, 206, Kamat Towers, Patto Plaza, Panaji, Goa. …..... Appellant. Versus COMMISSIONER OF INCOME TAX Aayakar Bhavan, Patto Plaza, Panaji, Goa 403001. …....... Respondent. TAX APPEAL NO. 35 OF 2015 NEELAM AJIT PHATARPEKAR. Major of age, Indian National, 601, Kamat Towers, Patto Plaza, Panaji, Goa. …..... Appellant. Versus 2 Txa33,34,35-15ssm COMMISSIONER OF INCOME TAX Aayakar Bhavan, Patto Plaza, Panaji, Goa 403001. …....... Respondent. Mr. Jitendra Jain and Mr. H. D. Naik, Advocates for the Appellants. Ms. Asha Desai, Advocate for the Respondent. CORAM : F.M. REIS & M.S. SANKLECHA, JJ. Date : 9th April, 2015.

ORAL JUDGMENT : (F.M. REIS, J.) Heard Shri J. Jain, learned Counsel appearing for the appellants and Ms. Asha Desai, learned Counsel appearing for the respondent.

2.

The above appeals were taken up together as it was pointed out by the learned Counsel appearing for the parties that the issues involved are identical, as also the assessment year in each of the aforesaid appeals is also the same.

3.

Admit on the following substantial question of law :

Whether the Tribunal was justified in relying on the 3 Txa33,34,35-15ssm judgment of this Court in the case of Orient Goa Co. P. Ltd., reported in 325 ITR 554 which is no more good law after the decision of the Honourable Supreme Court in the case of GE Technology, reported in 327 ITR 456 ?

3.

Upon hearing the learned Counsel appearing for the respective parties, we find that the Income Tax Appellate Tribunal has failed to take note of the contentions of the appellants that the Judgment in the case of Orient Goa Co P. Ltd. was not applicable to the facts of the present case in view of the findings of the Assessing Officer that the provisions of Section 172 of the Income Tax Act were not applicable to the facts of the present case. It was also contended by the learned Counsel appearing for the appellants that the judgment of the Apex Court in GE Technology, reported in 327 ITR 456, as also the judgment of this Court in Orient Goa Co P. Ltd. would not hold the field.

4.

On going through the records, with the assistance of the learned Counsel, we find that all these contentions were raised by the appellants which have not been examined by the Tribunal whilst passing the impugned order. Ms. Dessai, learned Counsel appearing

4 Txa33,34,35-15ssm for the respondent fairly accepts that these contentions were not considered and is not averse that the matter may be remanded to the Tribunal to decide the appeals filed by the appellants, afresh.

5.

In such circumstances, without going into the merits of the rival contentions, we find that it appropriate to quash and set aside the orders passed by the Tribunal and remand the matter to the Tribunal to decide the appeals filed by the appellants, afresh, in accordance with law. The substantial question of law is answered accordingly.

6.

In view of the above, we pass the following Order:

(I) The appeals are partly allowed. (II) The impugned orders dated 16th March, 2015 passed by the Income Tax Appellate Tribunal, Panaji Bench, Panaji in ITA No.66/PNJ/2014 along with Cross Objection No.22/PNJ/2014, ITA No.145/PNJ/2014 along with ITA No.146/PNJ/2014, in respect of Assessment Year 2010-11, is quashed and partly set aside. (III) ITA No.66/PNJ/2014 along with Cross Objection No.22/PNJ/2014, ITA No.145/PNJ/2014 and ITA No.146/PNJ/2014 are restored to the file of the ITAT. (IV) The ITAT is directed to decide the appeals along with 5 Txa33,34,35-15ssm cross objections, afresh after hearing the parties, in accordance with law. All contentions of both the parties, on merits, are left open. The appeals stand disposed of accordingly. M.S. SANKLECHA, J. F.M. REIS, J. ssm.

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