Madhya Pradesh High Court
Commissioner Of Income-Tax vs Sanghi Finance And Investment Ltd. on 21 June, 2004
Equivalent citations: (2004)191CTR(MP)150, [2005]273ITR268(MP)
Author: A.M. Sapre
Bench: A.M. Sapre
JUDGMENT A.M. Sapre, J.
1. This is an appeal under Section 260A of the Income-tax Act, 1961, filed by the Revenue (Income-tax Department) against an order dated November 24, 2003, passed by the Income-tax Appellate Tribunal, in I .T. A. No. 366/IND of 1998.
2. Heard Shri R. L. Jain, learned counsel for the appellant.
3. Having heard learned counsel for the appellant and having perused the record of the case, we find no merit in the appeal. In other words, we have not been able to notice any substantial question of law in the appeal and since the pre-requisite to entertain the appeal being not present in the appeal ; the same deserves to be dismissed in limine.
4. The dispute in substance relates to deleting the disallowance of Rs. 63,363 in respect of interest free loan advanced by the assessee (respondent herein) to one of its sister concern Techno Cast Pvt. Ltd. out of their C. C. loan account. The Assessing Officer did not allow this deduction and added in the income of the assessee holding that no such loan could be given interest free. However, the Commissioner of Income-tax (Appeals) disagreed with the Assessing Officer and allowed the deduction as claimed by the assessee. This was upheld in appeal by the Tribunal giving rise to filing of this appeal by the Revenue.
5. In our opinion, mere perusal of the impugned order of the Tribunal would show (para. 8) that even the departmental counsel conceded that they do not have any case to urge against the assessee. In other words, the impugned order was conceded to by the departmental representative against the Revenue. When the appellant themselves concede to the issue then we fail to understand as to why then and on what basis they filed this appeal. When there was no contest on the issue which is now sought to be urged in this appeal then in our opinion, there is no issue of law that can be said to arise out of the Tribunal's order.
6. In our opinion, we do not approve of the practice resorted to by the departmental representative to concede the issue of law or even fact before the Tribunal. It is the duty of the departmental representative who appears to defend the interests of the Revenue before the Tribunal to see that he places before the Tribunal all the facts and legal position to the best of his ability and legal acumen. The object behind this is to ensure that the interests of the Revenue are never allowed to be compromised. It is only when the issue sought to be canvassed is covered by the decision of the jurisdictional High Court or the Supreme Court, that the issue need not be pursued. But, in all other cases, the issue must be pursued on the facts and in law even if it is decided against the Revenue either at the level of the Commissioner of Income-tax (Appeals) or the Tribunal in relation to cases arising out of other assessment years of the same assessee. As in this case, if the Revenue was so keen to pursue the issue involved in the case to this court then there was absolutely no reason to give concession by the learned departmental representative. Rather he should have argued the issue on the point of law and should have contended that though the issue involved is decided against the Revenue in some other assessment years yet, the same may be reconsidered or it may be dealt with again on the merits so that the same can be carried in appeal to the High Court. In other words, in such circumstances, the duty of the departmental representatives is not to concede the issue but to press the issue on the facts and in law and invite a categorical finding though against the Revenue so that when the matter is carried in appeal to this court at the instance of the Revenue, this court is able to examine the issue in its right and proper perspective.
7. Coming to the facts of the case as observed supra, the learned departmental representative without any reservation and in explicit terms conceded the issue saying that it is decided in favour of the assessee by some order of the Tribunal. Having pointed out this, he did not call upon the Tribunal to either reconsider or not to record its concession because the Revenue had not accepted the verdict of the Tribunal and wanted to challenge the same in the High Court. He should have thus, persuaded the members to at least record all these submissions so that the matter could be open for this court for examination.
8. Be that as it may, we find nothing on record to examine the case either on facts or in law. The Tribunal simply recorded the ground of attack and recorded the concession of the departmental representative for dismissing the appeal. We do not approve the manner of disposal of case by the Tribunal as also manner of presentation by the departmental representative while defending the interests of the Revenue. It is nothing but disposal of the issue in a most cursory and casual manner leaving this appellate court in the lurch to find out (i) as to in which case the Tribunal passed an order in favour of the assessee, (ii) what were the facts of that case, (iii) what was the finding actually recorded in that case, (iv) whether at all, the facts of this case and those of the one referred to and relied upon by the Tribunal were same/identical ? Since, the impugned order is totally silent on all these material issues ; this court is unable to know the details.
9. In any event, the perusal of the order of the Assessing Officer, and the Commissioner of Income-tax (Appeals) do indicate that the disallowance made by the Assessing Officer was not justified and hence, the Commissioner of Income-tax (Appeals) who allowed the deduction was proper. It was rightly held that the transaction in question being genuine, the interest even if not charged from the sister concern, cannot be added in the hands of the assessee. We, thus, do not find any issue of law in this case. As a consequence, the appeal fails and is dismissed in limine.