Appeal to Appellate Tribunal – Decision of
Commissioner (Appeals) based on report on remand by AO – Tribunal not
considering report – Decision of Tribunal erroneous – Decision of High Court
upholding order of Tribunal – High Court can recall its order – Matter remanded
to Tribunal
A search u/s. 132 of the
Act was conducted in the residential premises of the assesee. In consequent
reassessment proceedings the Assessing Officer added an amount as unaccounted
income of the assessee holding the same represented undisclosed income of her
husband, which had been brought in the name of the assessee in the guise of
agricultural income.
Before the Commissioner
(Appeals), apart from furnishing other details, the assessee produced a copy of
the decree passed by the civil court granting a decree of permanent injunction
in her favour, when an attempt was made to evict her from the leased property.
Since fresh evidence in the form of court orders and other details were placed
before the Commissioner (Appeals), a report was called for from the Assessing
Officer on the stand taken by the assessee in the appeal proceedings.
Accordingly, the Assessing Officer submitted a report, dated 25/11/2002. The
report was wholly in favour of the assessee. Thus taking note of the report of
the Assessing officer, as well as the report of the Inspector of Income-tax,
the Commissioner (Appeals) held that the action of the Assessing Officer
treating the sum of Rs. 4,08,841/- as “non-agricultural income” was incorrect.
In appeal by the Revenue, the Tribunal upheld the assessment order and the
addition and reversed the decision of the Commissioner (Appeals).
The Madras High Court
dismissed the appeals of the assessee by order dated 30/09/2013. The assessee
preferred a review petition. The High Court allowed the writ petition and held
as under:
“i) In VIP Industries Ltd. vs. CCE (2003) 5SCC
507, it was held that all provisions, which bestow the High Court with
appellate power, were framed in such a way that it would include the power of
review and in these circumstances, sub-section (7) of section 260A of the
Income-tax Act, 1961 cannot be construed in a narrow and restricted manner. In
the case of M. M. Thomas, the Supreme Court held that the High Court, as a
court of record, has a duty to itself to keep all its records correctly in
accordance with law and if any apparent error is noticed by the High Court in
respect of any orders passed that the High Court has not only the power but
also a duty to correct it.
ii) The Tribunal repeated verbatim the order passed by the Assessing
officer dated 29/03/2001, and ignored the remand report dated 25/11/2002 and
the findings rendered by the Commissioner (Appeals) based on such remand
report. Thus, if such is the situation, the appeal itself would have been
incompetent. Hence, this question, which touches upon the jurisdiction of the
Tribunal, has not been considered by the Tribunal, we are inclined to review
the judgment and remand the matter to the Tribunal for fresh consideration.
iii) In the result, the review petitions are allowed and the judgment
dated 30/09/2013 is reviewed and recalled and the appeals stand disposed of, by
remanding the matter to the Tribunal to decide the question of its jurisdiction
to entertain the appeals by the Revenue against the orders of the Commissioner
(Appeals). In the event, the Tribunal decides the question in favour of the
Revenue, it shall reconsider the other issues after opportunity to the Revenue
and assessee.”
