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COURT:
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DATE: April 11, 2019 (Date of pronouncement)
DATE: April 23, 2019 (Date of publication)
AY: -
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CITATION:
S. 250: The CBDT is empowered to lay down broad guidelines for disposal of appeals by CsIT(A). However, it cannot offer 'incentives' to CsIT(A) for making enhancement and levying penalty. Such policy transgresses the exercise of quasi-judicial powers & is wholly impermissible and invalid u/s 119. The 'Incentives' have the propensity to influence the CsIT(A) and they will be tempted to pass an order in a particular manner so as to achieve a greater target of disposal

All these contingencies necessarily point to circumstances where the order passed by the Commissioner (Appeals) is in favour of the revenue. For example this policy refers to the enhancement made by the Commissioner or a case where the Commissioner has levied penalty under section 271(1) of the Act. This necessarily refers to enlargement of the assessee’s liability before the Commissioner as compared to what may have been determined by the Assessing Officer. In our opinion, such policy is wholly impermissible and invalid. Any directives by the CBDT which gives additional incentive for an order that the Commissioner (Appeals) may pass having regard to its implication, necessarily transgresses in the Commissioner’s exercise of discretionary quasi judicial powers.

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DATE: March 22, 2019 (Date of pronouncement)
DATE: March 25, 2019 (Date of publication)
AY: -
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CITATION:
S. 250: The CBDT should reconsider the direction in the Central Action Plan of offering incentives to CsIT(A) to enhance assessments and levy penalty. From the action plan, it is not clear as to the utility of the norms set which the CIT(A) has to achieve. If the purpose of setting of norms is to evaluate the performance of the CIT(A) there would be all the more reason why the above quoted portion of the action plan be reconsidered by the CBDT.

With respect to the Petitioners’ second part of the challenge, we are of the opinion that the CBDT should reconsider the same. From the action plan, it is not clear as to the utility of the norms set which the Commissioner has to achieve. If the purpose of setting of norms is to evaluate the performance of the Commissioner, there would be all the more reason why the above quoted portion of the action plan be reconsidered by the CBDT

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DATE: July 2, 2018 (Date of pronouncement)
DATE: November 3, 2018 (Date of publication)
AY:
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CITATION:
S. 250/ 254: If a decision is challenged by the assessee both on the issue of jurisdiction as well as on merits, the appellate authority has to decide both issues. He cannot decline to decide one of the issues on the basis that the decision on the other issue renders it academic. This approach leads to multiplication of proceedings and leads to delay

Examining the present case on the touchstone of above said case law, we find that the order of the ld. CIT(A) here directly falls under the ambit of Hon’ble High Court’s order as above. The ld. CIT(A) has decided one issue and has left undecided another issues duly raised before him. Hence, we are of the considered opinion that these issues relating to validity of reopening were duly raised, which have been left undecided by the ld. CIT(A) and need to be remitted to the file of the ld. CIT(A). The ld. CIT(A) is directed to complete his appellate order by deciding on these issues regarding the validity of reopening which were duly raised before him by the assessee

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COUNSEL: ,
DATE: May 4, 2018 (Date of pronouncement)
DATE: May 18, 2018 (Date of publication)
AY: 2013-14
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CITATION:
Rule 45 of the Income Tax Rules which mandates compulsory e-filing of appeals before the CIT(A) w.e.f. 01.04.2016 is a procedural and technical requirement. It cannot defeat the statutory right of an assessee to file an appeal. An assessee who has filed the appeal in paper format should be permitted to make good the default and to file an appeal electronically

From the facts of the present case, we gathered that the assessee had already filed the appeal in paper form, however only the e-filing of appeal has not been done by the assessee and according to us, the same is only a technical consideration. The Supreme Court has reiterated that if in a given circumstances, the technical consideration and substantial Justice are pitted against each other, then in that eventuality the cause of substantial Justice deserves to be preferred and cannot be overshadowed or negatived by such technical considerations

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DATE: April 18, 2017 (Date of pronouncement)
DATE: April 21, 2017 (Date of publication)
AY: 2008-09
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CITATION:
An additional ground (relating to claim u/s 80-IA) cannot be permitted to be raised if the necessary evidence that the assessee is entitled to the claim is not on record. The fact that claim has been allowed by the AO in a subsequent year and that there is no reason why the claim should not be allowed in the present year is irrelevant. Also, the assessee must satisfy the appellate authority that the ground now raised was bona fide and the same could not have been raised earlier for good reasons

We note that it is an undisputed position before us that for the subject assessment year, the appellant assessee had not claimed benefit of Section 80IA of the Act in respect of its Jetty / Port either before the Assessing Officer or before the CIT(A). A claim for benefit under Section 80IA of the Act can only be made if the infrastructure facility such as Jetty / Port is, among other things, being run on the basis of an agreement for either developing or operating and maintaining or developing, operating and maintaining a new infrastructure facility. The sine qua non provided in SubSection (7) of Section 80IA of the Act is the furnishing along with its Return of Income, a report of audited accounts in Form 10CCB as required under Rule 18BBB(3) of the Act. The Form 10CCB which is required to be filed along with Return of Income has various details to be filled in, including the initial assessment year from which the deduction is being claimed, the nature of the activity carried out with regard to the infrastructure facility, namely, whether it is for developing or developing and operating or for developing, operating and maintaining the new infrastructure facility. It is only on examination of those details as submitted by the auditor in Form 10CCB that the claim of deduction can be considered. It is undisputed that for the subject assessment year, no Form 10CCB has been filed by the appellant assessee. Therefore, there is no evidence on record for subject assessment year to allow the claim. The submission of Mr.Agrawal for the appellant that primary evidence in the form of jetty is on record is not acceptable. Mere ownership or existence of jetty is not evidence of eligibility to the benefit of Section 80IA of the Act, which is admittedly conditional upon satisfaction of certain requirements as provided therein

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DATE: March 30, 2017 (Date of pronouncement)
DATE: April 8, 2017 (Date of publication)
AY: 1997-98
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CITATION:
A question relating to jurisdiction which goes to the root of the matter can always be raised at any stage. Issues relating to initiation of s. 147 proceedings and/or service of notice are questions relating to assumption of jurisdiction. If an issue has not been decided in appeal and has simply been remanded, the same can be raised again notwithstanding with the fact that no further appeal has been preferred (Sun Engineering Works 198 ITR 297 (SC) explained)

The principles laid down by the Apex Court in the case of Sun Engineering Works P. Ltd. [1992] 198 ITR 297 (SC) would not apply as the appellant is not claiming any deduction or relief on the taxibility of any item in the reopened assessment proceedings which had not been claimed in the original assessment

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DATE: July 16, 2015 (Date of pronouncement)
DATE: July 27, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 40(a)(ia): In an appeal against an order passed by the AO to give effect to the ITAT's order, the CIT(A) has no jurisdiction to enhance the assessee with respect to a new source of income or disallowance of expenditure

The direction to the Assessing Officer by the CIT(Appeals) to disallow payments made by the assessee under sec. 40(a)(ia) of the Act was a question of taxability of income from a new source of income which has not been considered by the Assessing Officer, hence it was exceeding of jurisdiction by the CIT(Appeals) in a set aside matter by the ITAT in the present case. Though the CIT(Appeals) has co-terminus powers as of the Assessing Officer and is empowered to do what an Assessing Officer can do for the assessment, the directed disallowance was new source of income, which was not the subject matter of setting aside order by the ITAT

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COUNSEL:
DATE: June 16, 2015 (Date of pronouncement)
DATE: July 1, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 250: Orders of the ITAT are binding on the lower authorities and should be followed unreservedly. Blatant failure to do so could attract contempt of court proceedings

It is a clear case of showing disrespect to the order of the Tribunal. Therefore, contempt proceedings could have been initiated against the CIT (A) for blatantly disobeying the order of the Tribunal. The Madhya Pradesh High Court in Agrawal Warehousing & Leasing Ltd. vs. CIT 257 ITR 235 held that the CIT (A) cannot refuse to follow the order of the Appellate Tribunal. The CIT (A) is a quasi – judicial authority and is subordinate in judicial hierarchy to the Tribunal. The orders passed by the Tribunal are binding on all the revenue authorities functioning under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities

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DATE: November 5, 2014 (Date of pronouncement)
DATE: November 11, 2014 (Date of publication)
AY: 2004-05
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CITATION:
CIT(A) cannot decline to condone delay in filing appeal and still decide it on merits

We are of the view that in case CIT(A) chose not to condone the delay, he has no business to adjudicate the appeal on merits. For this, we are of the view that first of all, the appeal should be …

Dr. Murari Mohan Kokey vs. ITO (ITAT Kolkata) Read More »