Disposal of Appeal

[deepakgadgil]

Dear Professional Collegues,
During the course of hearing (in Sept 2013) in one of my cases before CIT (A), I had cited 6/7 non jurisdictional tribunals' decisions in my favour & had also cited one jurisdictional tribunal's decision in my favour - which was delivered in Apr 2013.

Hon'ble CIT (A) also cited before me one more decision of jurisdictional tribunal delivered in Aug 2013 which was in my favour & also told me orally that I had a strong case.

However at the time of passing order, CIT (A) cited a decision of the same jurisidictional tribunal which was not in my favour & was delivered in May 2013 & dismissed my appeal by disallwoing my claim. This decision is still not available in the public domain - on the site of ITAT.

Further as a matter of fact - there were 3/4 other decisions of the same jurisidictional tribunal delivered between Apr 2013 to Sep 2013 - which were in my favour (- & are now available on ITAT website) but were not known to me at the time of hearing.

My Query - Was the CIT-A right in doing so? Are there any chances of success if I file Sec 154 application before the said Authority? OR shall I straightway approach the ITAT only?

[pawansingla]

No 154 can be done. Better approach ITAT well in time.apply stay as well for early hearing. and get issue settled in your favour. If,you let us know the issue, we may be able to help you more.

[shobha nagrani]

Sir, what is the issue involved on which there are so many conflicting judgements? Is it shares gain - capital or revenue?

As Pawan Sir has rightly stated, solution is to file appeal before the Hon'ble ITAT.

[satyanveshi]

when a provision can be interpreted in two ways, the one which is beneficial to the assessee should be adopted as per APex Court decisions reported in 88 ITR 194, 89 ITR 236 and 289 ITR 641. This argument may be taken up in the case when an appeal is filed before ITAT and for that matter before any appellate authority when it is found that conflicting decisions are found on the same issue. 

[vsaiyar]

I feel the ITAT being highest body in fact findings, the ITAT decides on the basis of facts keeping in view the law.  In each of the case cited by my colleague and the one suggested by the CIT may be distringuishable on facts and hence the contradictions.  One comes to conclusions based on the facts.  The ITAT tries to harmonise the concllusions with the conclusions based on facts.  The ITAT also has to keep the judicial precedents in view before relying on judgements.  Recently I heard high ranking official openly admitting that she is pro revenue and that too in front of the Chief Commissioner. The attitude of the CIT(A) could be prorevenue and hence one cannot expect justice from them.  The appellate proceedings before the CIT(A) in many cases is only a necessary hurdle to file appeal to ITAT.

[srinivasan]

Even without quoting the ITAT  decision, CIT can give the reason for the dis allowance, and the only way is to appeal. The question of section 154 does not arise, as there is no mistake apparent from the records and if the CIT (A) has not  followed any judgement of the ITAT, it is not a mistake .

[vsaiyar]

If one is seeking solution to the problem raised by the initiator of the topic, then I agree with Mr.Srinivasan.  I feel the CIT(A) should not be arbitrary in his order brushing aside the precedents.  I would feel that this is gross insult to the intelligence of the courts/Tribunal.

[vsaiyar]

High Courts have held that the ITAT has to consider the judgements, orders etc. cited by both the appellants and respondents during the course of hearing.  This rule should be equally applicable to the CIT(A)s also.  If they do not follow this healthy principles they should be hauled up.

[vsaiyar]

Guj. H.C. Dattani & Co. Tax Appeal 847 / 2013. Dt. 21/10/13.

Held, Tribunal has to consider decisions cited and referred at the hearing prior to adjudication of any issue.