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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)
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