Income Tax Appellate Tribunal - Amritsar
Sh. Tilak Raj, Katra vs The Income Tax Officer, Ward Udhampur on 4 December, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH; AMRITSAR.
BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER
AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER
I.T.A. No. 282/(Asr)/2017
Assessment Year: 2010-11
PAN: AKJPR8497B
Sh. Tilak Raj Vs. Income Tax Officer,
S/o Sh. Ram Lal, Ward- Udhampur.
House No. 9 Ward No. 8,
Hansali Lal, Katra.
(Appellant) (Respondent)
Appellant by : Sh. P. N. Arora (Adv.)
Respondent by: Sh. S. S. Kanwal (D. R.)
Date of Hearing: 09.11.2017
Date of Pronouncement: 04.12.2017
ORDER
PER T. S. KAPOOR (AM):
This is an appeal filed by assessee against the order of Ld. CIT(A), Jammu, dated 15.02.2017 for Asst. Year: 2010-11.
2. The grounds of appeal taken by assessee are reproduced below:
"1. That the order of the Assessing Officer as well as the order of Learned CIT(A) are both against the facts of the case and are untenable in law.
2. That the worthy CIT(A) has not appreciated the facts of the case and merely relied on order of the AO and without any rhyme & reason, the Ld. CIT(A) has confirmed the addition. As such order of the CIT(A) is liable to cancelled.
3. That the Ld CIT(A) has grossly erred in not admitting the appeal and accordingly was not justified in rejecting the same, merely because the issue has been decided by the Principal CIT, Jammu, u/s 264 of the I.T. Act, 1961.
4. That the worthy CIT(A) failed to appreciate that the proceedings initiated u/s 264 and u/s 246 are separate and distinct and they cannot mixed together. As such the CIT(A) is not justified in not admitting and rejecting the same.2 ITA No. 282(Asr)/2017
Assessment Year: 2010-11
5. That any other ground of appeal which may be urged at the time of hearing of the appeal.
6. That the Appeal of the assessee may kindly be admitted as requested."
3. At the outset, the Ld. AR submitted that the Ld. CIT(A) had not admitted the appeal of assessee and while rejecting the appeal of the assessee has held that since the issue raised by assessee has already been considered and decided by Pr. CIT Jammu u/s 264 of the Act and therefore he has no jurisdiction to decide the appeal on merits. The Ld. AR submitted that Pr. CIT Jammu vide order dated 26.03.2015 dismissed the petition u/s 264 without deciding the case on merits and therefore the assessee filed appeal before Ld. CIT(A) and Ld. CIT(A) should have decided the appeal on merits. It was submitted that the provisions of section 246 and 264 are different sections. Section 264 is for adjudication by CIT whereas section 246 deals with filing of appeal before Ld. CIT(A). It was submitted that notwithstanding unsuccessful efforts for having the order revised, the assessee could still file the appeal before the Ld. CIT(A), and this is very much clear from the plain reading of section 246 and section 264. The Ld. AR submitted that similar matter had come up for consideration before the Hon'ble High Court of Madras in the case of CIT Vs. D. Lakshminarayanapathi reported in 250 ITR 0187 and wherein the Hon'ble. Madras High Court has decided the issue in favour of assessee. The Ld. AR further submitted that the Hon'ble Amritsar Bench in the case of Shri Rajan Datta vide order dated 3 ITA No. 282(Asr)/2017 Assessment Year: 2010-11 03.06.2016 has also decided similar issue in favour of assessee after relying upon the same judgment of Madras High Court.
4. The Ld. DR on the other hand submitted that section 246 and 264 are though admittedly different but when the assessee opts for filing appeal u/s 264 its right for filing an appeal before Ld. CIT(A) gets extinguished and therefore Ld. CIT(A) has rightly dismissed the appeal of the assessee.
5. We have heard the rival parties and have gone though the material placed on record. We find that Hon'ble Madras High Court in the case of CIT Vs. D. Lakshminarayanapathi vide order dated 14th December, 1998 has dealt with the similar issue wherein it has been held that the provisions dealing with the appellate authorities do not bar an appellant from invoking the jurisdiction, if he had invoked revisional jurisdiction even though for invoking revisional jurisdiction, it is a pre-condition that the appellate jurisdiction should not have been invoked. The relevant findings of the Hon'ble Court are reproduced below:
"1. Though there is no limitation on the exercise of the appellate power in the statute on the ground that the assessee had invoked the revisional power unsuccessfully, it is contended for the Revenue that such a limitation should be read into the provision dealing with appeals under the IT Act. There is no provision in the Act in express terms, which supports the arguments so advanced by the Revenue. It is not disputed that the provisions dealing with the appellate authorities do not bar an appellant from invoking the jurisdiction, if he had invoked revisional jurisdiction, even though for invoking revisional jurisdiction, it is a precondition that the appellate jurisdiction should not have been invoked.
2. The argument advanced before us is that by inferential reasoning we should hold that if there is a limitation on exercise of revisional power a similar limitation should be read into the exercise of the appellate power. It does not require any authority to holding that it is not the province of the 4 ITA No. 282(Asr)/2017 Assessment Year: 2010-11 Court to rewrite the law on the ground that the provision should have been worded in the different manner in order to make it seemingly consistent with some other provision. Moreover, it is wholly unnecessary for Parliament to impose the same kind of restriction for invoking different kinds of jurisdiction. It is open to the law-maker to provide more than one remedy to the aggrieved party and so long as such remedies are available, the aggrieved parties can certainly invoke them.
3. The Tribunal has rightly held that the assessee, notwithstanding his unsuccessful effort at having the order revised, could still file an appeal as invoking the revisional jurisdiction could not constitute a bar to the filing of an appeal. It is for the legislature to impose such a bar if it considers it necessary to do so.
4. We, therefore, find no error in the order of the Tribunal. We answer the question as to "whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the AAC was justified in entertaining the assessee's appeal against the assessment even though the CIT had passed an order under s. 264 against the assessee and holding that the provisions of s, 154 were applicable and a revision was not barred by limitation" in favour of the assessee and against the Revenue. No costs."
Following the above judgment, the Amritsar Bench of the Tribunal vide its order dated 03.06.2016 in the case of Shri Rajan Datta has decided the issue in favour of assessee. The relevant findings of the order of Tribunal as para 7 are reproduced below:
"7. Having heard both the parties, we are of the considered view that the Id. CIT(A) was not justified in dismissing the appeals of the assessee being incompetent, particularly, in view of the reliance placed by the assessee on the decision of the Hon'ble Madras High Court, in the case of 'CIT vs. D. Lakshminarayanapathi', 250 ITR 187 (Mad.). Accordingly, we remit all the three appeals to the file of the Id. CIT(A) to decide the issue afresh in accordance with law after considering all the documentary evidences to be placed by the assessee in the course of fresh proceedings and after affording due and adequate opportunity of being heard to the assessee. The assessee, not doubt, shall cooperate in the fresh proceedings before the Id. CIT(A). Hence, all the three appeals are allowed for statistical purposes."
In view of the above judicial precedents we direct the Ld. CIT(A) to admit the appeal of assessee and hear the appeal on merits. 5 ITA No. 282(Asr)/2017
Assessment Year: 2010-11
6. In view of the above, the appeal filed by assessee is allowed for statistical purposes.
Order pronounced in the open court on 04.12.2017 Sd/- Sd/-
(N. K. CHOUDHRY) (T. S. KAPOOR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 04.12.2017.
/GP/Sr. Ps.
Copy of the order forwarded to:
(1) The Assessee:
(2) The
(3) The CIT(A),
(4) The CIT,
(5) The SR DR, I.T.A.T.,
True copy
By Order