Roxy Engg. (P) Ltd. vs Commissioner of Income Tax

Rajesh Bindal, J.—This order will dispose of above mentioned three appeals bearing Nos. 252, 254 and 255 of 2007, as common questions of law and facts are involved.

The facts have been noticed from ITA No. 255 of 2007.

The assessee has filed the present appeal against the order dated 22-9-2005, passed by the Income Tax Appellate Tribunal, Chandigarh Bench ''A'', Chandigarh (hereinafter referres to as, ''the Tribunal'') in ITA No. 616/Chandi./2004 for the assessment year 1996-97 raising the following substantial questions of law:

(1) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in holding thai the assessing officerwas justified in invoking provisions of Section 145(2) of the Income Tax Act, 1961?

(2) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in reversing categorical finding of the Commissioner (Appeals) that there was no ground for invocation of Section 145(2) of the Income Tax Act, 1961?

(3) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in arriving at correct invocation of Section 145(2) without giving the appellant any opportunity of being heard and de hors the plethora of material on record?

(4) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in ignoring to consider the material on record and remitting the matter to the assessing officer?

(5) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in reformulating ground of appeal not forming the subject-matter of appeal by the assessing officer and against the express mandate of Section 254(1) of the Income Tax Act, 1961?

(6) Whether in the facts and circumstances of the case, the action of the authorities below, the impugned orders Annexures A.1 and A.5 are legally sustainable in the eyes of law.

A perusal of the order passed by the Tribunal shows that in appeal filed by the revenue, the matter on the issue of rejection of books of account was remanded back to the Commissioner (Appeals) (for short, ''the Commissioner (Appeals)''), where the same was still pending consideration.

Learned Counsel for the assessee submitted that the issue should have been decided by the Tribunal itself and the matter should not have been remanded. He further submitted that the observations made by the Tribunal while remanding the case back to the Commissioner (Appeals) would prejudice the Commissioner (Appeals) while deciding the matter afresh by him. The observations made by the Tribunal are strictly not in conformity with law.

Learned Counsel for the revenue submitted that as nothing has been held by the Tribunal on merits of the controversy and the case has merely been remanded back for decision afresh, no interference by this court is called for at this stage as no substantial question as such arises from the order of the Tribunal. He further submitted that the appellant will have its remedy before the Tribunal in case the issue is decided by the Commissioner (Appeals) against it.

Having heard learned Counsel for the parties, we are of the considered view that no interference is called for by this court in the present appeal at this stage, keeping in view the fact that the mailer has merely been remanded back to the Commissioner (Appeals) for decision afresh. The issue sought to be raised by the assessee has not been decided by the Tribunal on merits. The apprehension of the assessee that the Commissioner (Appeals)) will be prejudiced by the observations made by the Tribunal while deciding the case afresh is totally baseless for the reason that the Commissioner (Appeals) is bound by law while considering the case in remand. A Division Bench of Allahabad High Court in New Cawnpore Flour Mills Vs. Commissioner of Income Tax, held that no question of law would arise from an order passed by the Tribunal merely remanding the case back to the Commissioner (Appeals) for decision afresh. The requirement u/s 260A of the Income Tax Act, 1961 is still more stringent as now the requirement is (that a substantial question of law should arise out of the order of the Tribunal if the interference of the court is called for in the appellate jurisdiction. The fact remains that when the case is remanded back by the Tribunal to the Commissioner (Appeals) for consideration on merits after affording opportunity of hearing to the parties, no issue as such is decided finally in favour or against any of the parties and in such a situation, no question of law, much less a substantial question of law would arise out of such an order passed by the Tribunal.

For the reasons mentioned above, we do not find any substantial question of law arising in the said appeals.

Accordingly, the appeals are dismissed.