Gujarat High Court
Commissioner vs Sidmak on 4 April, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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TAXAP/175/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 175 of 2009
=========================================================
COMMISSIONER
OF INCOME TAX IV - Appellant(s)
Versus
SIDMAK
LABORATORIES (I) PVT LTD - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
MR RK PATEL for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 04/04/2011
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Revenue is in appeal against judgement of the tribunal dated 2.5.2008 raising following question for our consideration :
"Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) allowing to carry forward loss of Rs.12,88,292/- holding that the Assessing Officer has erred in invoking section 79 of the Act?"
On 8.2.2011, this Court had passed following order :
"1. Mrs. Mauna M. Bhatt, learned Senior Standing Counsel invited the attention of the Court to the order made by the Commissioner [Appeals], to point out that the Commissioner[Appeals] has merely reproduced the submissions advanced on behalf of the assessee and has recorded agreement therewith. Referring to the order of the Income Tax Appellate Tribunal, it is pointed out that the Tribunal has not adverted to the facts of the case and has merely recorded agreement with the order made by the Commissioner[Appeals]. It is submitted that neither of the appellate authorities has adverted to the facts of the present case nor has given any reasons for taking a different view from that taken by the Assessing Officer.
2. In the light of the above, notice for final disposal, returnable on 14th March, 2011."
From the said order, it is apparent that Revenue's dissatisfaction is that the tribunal in impugned judgement without giving separate reasons confirmed the view of CIT(Appeals). It was therefore, that this Court had issued notice of final disposal.
Counsel for assessee Shri R.K. Patel appeared in response to the said notice.
We have heard learned counsel on both sides for final disposal of the appeal.
Though not seriously disputing, our prima facie reading of the tribunal's order is that it lacks reasons, Counsel for the assessee submitted that even otherwise the order passed by the Assessing Officer was not sustainable. He submitted that the Assessing Officer was passing a fresh order upon remand by the CIT(Appeals). Such remand was on limited point and Assessing Officer therefore, could not have reopened entire assessment in view of decision of this Court in case of Saheli Synthetics P. Ltd. v. Commissioner of Income-tax reported in (2008) 302 ITR 126(Guj).
Counsel further submitted that tribunal did not entertain cross objection of the assessee merely on the ground that Revenue's appeal was being dismissed. In the cross objection, assessee had raised grounds based on decision in case of Saheli Synthetics P. Ltd.(supra).
We are of the opinion that both these questions should be reconsidered by the tribunal. Firstly, insofar as Revenue's appeal is concerned, same was dismissed without giving independent reason, merely adopting arguments and findings of CIT(Appeals). Further contention raised by assessee in cross objection and in particular, his reliance on decision of Gujarat High Court in case of Saheli Synthetics P. Ltd.(supra) is also required to be considered by the Tribunal.
For the above purpose, judgement dated of the tribunal dated 2.5.2008 is set aside. Proceedings are remanded to the tribunal for fresh consideration after hearing both sides. It is clarified that not only Revenue's appeal but assessee's cross objection also stands revived.
With above directions, Tax Appeal is disposed of.
(Akil Kureshi,J.) (Ms. Sonia Gokani,J.) (raghu) Top