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TAXAP/1498/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1498 of 2009
=========================================================
COMMISSIONER
OF INCOME TAX - GANDHINAGAR - Appellant(s)
Versus
RAMESHBHAI
N CHAUDHARY - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
RULE NOT RECD BACK for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 19/04/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against judgement of the tribunal dated 27.2.2009
raising following questions for our consideration :
(A) Whether
the Appellate Tribunal is right in law and on facts in holding that
reopening u/s. 147 was bad in law?
(B) Whether
the Appellate Tribunal was justified in upholding the order of the
CIT(A) in deleting the disallowance of deduction of Rs.21,97,019/-
claimed u/s.36(1)(va) r.w.s. 43B of the I.T. Act?
On
8.3.2011, we had passed the following order :
“Counsel
for the Revenue submitted that the Commissioner of Income-tax
[Appeals], Gandhinagar had allowed the appeal of the assessee on the
ground that the re-opening of the assessment was bad in law.
Revenue’s appeal before the Income Tax Appellate Tribunal, Ahmedabad
came to be dismissed, without deciding the question of law at all.
Considering
the submissions made by the learned counsel for the Revenue, issue
notice for final disposal, returnable four weeks.”
Accordingly,
we have heard learned counsel for the Revenue as well as Shri Ramesh
Chaudhary respondent assessee who appeared before us in person.
From
the record, we find that the substantial question is with respect to
deduction of amount of Rs.21,97,019/- claimed by the assessee under
section 36(1)(va) of the Income Tax Act, 1961. The Assessing Officer
disallowed such a claim by reopening the assessment. Case of the
Revenue is that the assessee had not deducted employee’s contribution
to Provident Fund within the due date as explained under clause (va)
of sub-section(1) of section 36 and deduction was therefore, not
allowable. Assessee carried the issue in appeal before CIT(Appeals)
and contended inter-alia that reopening itself was bad in law.
CIT(Appeals) upheld such a contention and quashed the order of the
Assessing Officer only on this ground.
Revenue
carried the issue in appeal before the tribunal and contended that
reopening of assessment was valid, and raised following two
contentions :
“1.
The Ld.CIT(A) has erred in law and on facts of the case in holding
the reopening the assessment to be void in law.
2. The
Ld. CIT(A) has erred in law and on facts of the case in deleting the
addition of Rs.21,97,019/- made on account of disallowance of
deduction u/s. 36(1)(va) r.w.s. 438 of the Income Tax Act, 1961 (for
short, “the Act”)”
From
the above, it can be seen that before the tribunal, Revenue had
raised two contentions. First contention was that reopening was
valid. CIT(Appeals) therefore, erred in quashing the order of the
Assessing Officer holding that reopening was void. Second contention
was that even otherwise on facts and in law, deductions claimed by
the assessee was not available under section 36(1)(v) of the Act.
From
the order of the tribunal, we find that tribunal only dealt with one
of the two contentions. Relying on the decision of Delhi High Court
in case of CIT v. P.M. Electronics reported in (2008) 220 CTR
635(Del), tribunal was of the opinion that deduction was validly
claimed by the assessee.
Counsel
for the Revenue pointed out that such question is being considered by
this Court and several Tax Appeals have been admitted. We would have
ordinarily taken same course and admitted this appeal also. However,
we find that question with respect to validity of the reopening of
the assessment was not decided by the tribunal though raised.
Resultantly, if ultimately the High Court is inclined to reverse the
view of the tribunal on the question of allowability of deduction
claimed by the assessee, question may still remain whether the
reopening of assessment was valid at all or not which question the
tribunal did not decide. We may recall that this was the only ground
on which CIT(Appeals) has allowed the appeal of the assessee. In
facts and circumstances of the case, therefore, we are of the opinion
that proceedings are required to be remanded to the tribunal for
considering the first ground of the Revenue namely, challenge to
CIT(Appeals) view that reopening of assessment was void.
For
the above purpose, the proceedings are remanded to the tribunal. We
clarify that tribunal’s view on merits of the deduction claimed is
not interfered with at this stage. It is further clarified that
Revenue’s appeal is not considered on merits and all issues are kept
open to be judged in future if need so arises.
Tax
Appeal is disposed of accordingly.
(Akil
Kureshi,J.)
(Ms.
Sonia Gokani,J.)
(raghu)
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