Modern Home Care Products Ltd.,, New Delhi., v. ITO, Ward-5(4),, New Delhi.,

MA 414/DEL/2019 | 1998-1999
Pronouncement Date: 22-03-2021 | Result: Allowed

Appeal Details

RSA Number 41420124 RSA 2019
Assessee PAN AAACM0920E
Bench Delhi
Appeal Number MA 414/DEL/2019
Duration Of Justice 1 year(s) 10 month(s) 6 day(s)
Appellant Modern Home Care Products Ltd.,, New Delhi.,
Respondent ITO, Ward-5(4),, New Delhi.,
Appeal Type Miscellaneous Application
Pronouncement Date 22-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 22-03-2021
Assessment Year 1998-1999
Appeal Filed On 16-05-2019
Judgment Text
PAGE | 1 INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH FRIDAY: NEW DELHI ] BEFORE SHRI AMIT SHUKLA JUDICIAL MEMBER A N D SHRI PRASHANT MAHARISHI ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) M.A. NO. 414/DEL/2019. [ IN C. O. NO. 192/DEL/2007 ] [ IN ITANO. 2595/DEL/2002 ] ASSESSMENT YEAR: 1998-99 M/S. MODERN HOME CARE PRODUCTS LTD. 4 COMMUNITY CENTRE NEW FRIENDS COLONY NEW DELHI. PAN: AAACM0920E VS. ITO WARD: 5 (4) NEW DELHI. (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI AJAY VOHRA SR. ADV.; SHRI GAURAV JAIN ADV.; & MS. MANISHA SHARMA ADV.; REVENUE BY: SHRI M. BARNWAL SR. DR; DATE OF HEARING : 15/01/2021 DATE OF PRONOUNCEMENT : 22/03/2021 O R D E R PER PRASHANT MAHARISHI A. M. 1. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSESSEE IN ITA NUMBER 2595/DEL/2002 AND CROSS OBJECTION NUMBER 192/DEL/2007 FOR ASSESSMENT YEAR 1998-99 DECIDED BY THE COORDINATE BENCH AS PER ORDER PAGE | 2 DATED 13/11/2018. ACCORDING TO THAT ORDER THE CROSS OBJECTION FILED BY THE ASSESSEE IN CO NUMBER 192/DEL/2007 WAS DISMISSED. 2. MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SHOWS THAT WHILE DECIDING THE ABOVE APPEAL AND CROSS OBJECTIONS THE COORDINATE BENCH AT PARAGRAPH NUMBER 20 27 AFTER CONDONING THE DELAY IN FILING THE CROSS OBJECTION DISMISSED THE CROSS OBJECTION OF THE ASSESSEE HOLDING THAT THE CROSS OBJECTION WAS NOT MAINTAINABLE ON AN ISSUE WHICH DID NOT ARISE FROM THE ORDER OF THE LEARNED CIT A. 3. ASSESSEE IS AGGRIEVED WITH THAT AND STATING THAT THERE IS AN APPARENT ERROR IN THE ORDER OF THE COORDINATE BENCH WHICH IS CONTRARY TO THE PROVISIONS OF SECTION 253 (4) OF THE ACT AND RULE 22 OF THE INCOME TAX (APPELLATE TRIBUNALS) RULES 1963 AND LAW LAID DOWN BY THE VARIOUS HIGH COURTS INCLUDING THE BINDING DECISION OF THE JURISDICTIONAL HIGH COURT AND COORDINATE BENCHES OF THE TRIBUNAL. 4. THE MISCELLANEOUS PETITION SAYS THAT COORDINATE BENCH DID NOT CONSIDER THE DECISION OF THE HONOURABLE DELHI HIGH COURT IN PRINCIPLE COMMISSIONER OF INCOME TAX VERSUS SILVER LINE 383 ITR 455 WHEREIN IT IS HELD THAT THE TRIBUNAL WAS RIGHT IN PERMITTING THE ASSESSEE TO RAISE AN ADDITIONAL GROUND CHALLENGING VALIDITY OF REASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 147 FOR THE FIRST TIME IN CROSS OBJECTION FILED BEFORE THE TRIBUNAL HOLDING THAT THE ISSUE RAISED IN CROSS OBJECTION WAS PURELY A LEGAL ISSUE WHICH COULD BE RAISED FOR THE FIRST TIME AND ADJUDICATED BY THE TRIBUNAL AS PER THE DECISION OF THE HONOURABLE SUPREME COURT IN CASE OF NATIONAL THERMAL POWER CO LTD VERSUS COMMISSIONER OF INCOME TAX 229 ITR 383. THUS MISCELLANEOUS APPLICATION AND THE CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE STATES THAT THEREFORE NON CONSIDERATION OF DECISION OF THE HONOURABLE JURISDICTIONAL HIGH COURT BY THE COORDINATE BENCH RENDERS THE ORDER PASSED IN THE CROSS OBJECTION FILED BY THE ASSESSEE DISMISSING IT SUFFERS FROM A MISTAKE APPARENT FROM RECORD. IT IS ALSO STATED THAT NON- CONSIDERATION OF SUCH DECISION MAKES THE ORDER ERRONEOUS AS A BINDING PAGE | 3 DECISION OF THE HONOURABLE JURISDICTIONAL HIGH COURT HAS NOT BEEN CONSIDERED WHETHER CITED OR NOT BEFORE THE BENCH. THIS WAS ALSO THE CRUX OF THE ARGUMENT OF THE LEARNED AUTHORISED REPRESENTATIVE. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER OF THE COORDINATE BENCH AND STATED THAT IT AMOUNTS TO CHANGING THE DECISION OF THE COORDINATE BENCH AS IT IS A REVIEW OF THE DECISION AND NOT A RECTIFICATION OF THE ORDER. IT WAS FURTHER STATED THAT SUCH DECISION WAS NEVER CITED BEFORE THE COORDINATE BENCH. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND PERUSED THE ORDER OF THE COORDINATE BENCH. IN INCOME TAX OFFICER WARD-5(4) NEW DELHI V. MODERN HOME CARE PRODUCTS LTD. [2018] 100 TAXMANN.COM 282 (DELHI - TRIB.)/[2019] 174 ITD 209 (DELHI - TRIB.) THE COORDINATE BENCH HAS DECIDED THE CROSS OBJECTION FILED BY THE ASSESSEE AS UNDER:- 20. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. ACCORDING TO THE PROVISIONS OF SECTION 253 (1) ANY ASSESSEE AGGRIEVED BY THE ORDERS OF THE SPECIFIED AUTHORITIES MAY FILE AN APPEAL BEFORE THE TRIBUNAL. THEREFORE THERE HAS TO BE AN ORDER BY WHICH THE ASSESSEE IS AGGRIEVED WITH AND THEREFORE SUCH GRIEVANCE OF THE ASSESSEE GIVES THE RIGHT TO THE ASSESSEE TO FILE AN APPEAL BEFORE THE TRIBUNAL. RIGHT OF FILING OF THE APPEAL IS ALSO GRANTED TO THE LEARNED ASSESSING OFFICER THROUGH THE OFFICE OF THE PRINCIPAL COMMISSIONER OR COMMISSIONER OF INCOME TAX UNDER SECTION 253 ( 2) OF THE ACT. BUT ONLY CONDITION IS THAT THEY MUST HAVE AN OBJECTION TO ANY ORDER PASSED BY THE SPECIFIED AUTHORITY. THEREFORE IT IS NECESSARY THAT THE ORDER MUST BE PASSED BY THE SPECIFIED AUTHORITY AND THE LEARNED ASSESSING OFFICER MUST HAVE OBJECTION AGAINST THAT ORDER THEN ONLY THE APPEAL CAN BE FILED BY THE LEARNED ASSESSING OFFICER. ACCORDING TO THE PROVISIONS OF SECTION 253 (2) OF THE ACT THE PRINCIPAL COMMISSIONER OR COMMISSIONER IF HE OBJECTS TO ANY ORDER PASSED BY COMMISSIONER APPEALS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER. IF THE APPEAL IS FILED BY THE ASSESSEE THEN REVENUE IS A RESPONDENT AND IF THE APPEAL IS FILED BY THE REVENUE THEN ASSESSEE IS A RESPONDENT AND THE RESPONDENT IN BOTH THE SITUATION IS GRANTED ARRIVED TO FILE CROSS OBJECTION IN THE APPEAL FILED BY THE APPELLANT. ACCORDING TO THE PROVISIONS OF SECTION 253 (4) THE ASSESSEE ON RECEIPT OF NOTICE THAT APPEAL AGAINST THE ORDER OF THE COMMISSIONER APPEALS HAS BEEN PREFERRED BY THE COMMISSIONER MAY FILE A MEMORANDUM OF CROSS OBJECTIONS IN THE PRESCRIBED MANNER AGAINST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS). UNDOUBTEDLY THE GROUNDS OF CROSS OBJECTION CANNOT BE LIMITED TO THE GROUNDS RAISED IN THE APPEAL OF THE REVENUE. HOWEVER THE QUESTION THAT ARISES IS THAT WHETHER IN THE CROSS OBJECTION THE PAGE | 4 ASSESSEE OR REVENUE (AO) CAN RAISE AN ISSUE WHICH WAS NOT AT ALL A MATTER OF DISPUTE BEFORE THE ASSESSING OFFICER OR BEFORE THE 1ST APPELLATE AUTHORITY. THE PROVISIONS OF SECTION 253 (4) AUTHORIZES THE OTHER PARTY TO FILE CROSS OBJECTION AGAINST ANY PART OF THE ORDER OF THE COMMISSIONER (APPEALS). THEREFORE IT IS APPARENT THAT THE ISSUE MUST HAVE BEEN DECIDED IN THE ORDER OF THE 1ST APPELLATE AUTHORITY THEN ONLY THE ASSESSEE CAN FILE A CROSS OBJECTION. IN THE PRESENT CASE THE ASSESSEE HIMSELF HAS OFFERED RS. 1.5 CRORES AS INCOME OF THE ASSESSEE. IT WAS NOT AGITATED BEFORE THE ASSESSING OFFICER THAT SUCH INCOME IS A CAPITAL RECEIPT. IT WAS ALSO NOT AGITATED BEFORE THE COMMISSIONER APPEALS THAT SUCH INCOME IS NOT CHARGEABLE TO TAX. IN THE CROSS OBJECTION ASSESSEE HAS RAISED THAT ISSUE. THEREFORE APPARENTLY THE TAXABILITY OF RS. 1.5 CRORES AS INCOME OF THE ASSESSEE WAS NOT AT ALL PART OF THE ORDER OF THE COMMISSIONER APPEALS. HENCE IT CANNOT BE CONSIDERED IN CROSS OBJECTION. HENCE SAME CANNOT BE RAISED IN THE CROSS OBJECTION FILED BY THE ASSESSEE WHEN IT IS NOT DISPUTED BEFORE THE ANY OF THE LOWER AUTHORITIES. 21. THE INCOME-TAX ACT ITSELF AS LAID DOWN REMEDY FOR FORGONE CLAIM BY THE ASSESSEE AND THE FORGONE REVENUE BY THE LEARNED ASSESSING OFFICER. THE RESPECTIVE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT WHEREIN THE ORDER PASSED BY THE ASSESSING OFFICER IS FOUND TO BE ERRONEOUS IN PREJUDICIAL TO THE INTEREST OF THE REVENUE CAN BE REVISED BY THE LEARNED CIT. SIMILARLY THE PROVISIONS OF SECTION 264 OF THE INCOME-TAX ACT PROVIDES THAT IF ANY WHICH IS PREJUDICIAL TO THE ASSESSEE CAN BE REVISED BY CIT. THEREFORE FOR SUCH EVENTUALITY AS IT IS RAISED BEFORE THE US THE RELEVANT PROVISIONS ARE THE PROVISIONS OF SECTION 264 OF THE INCOME-TAX ACT AND NOT IN APPEAL BEFORE THE CO-ORDINATE BENCH. UNDOUBTEDLY SUCH APPLICATION UNDER SECTION 264 OF THE INCOME-TAX ACT CAN BE MADE BELATEDLY WITH THAT REQUEST FOR CONDONATION OF DELAY. BUT CERTAINLY SAME CANNOT BE AGITATED BY THE ASSESSEE BEFORE US IN CROSS OBJECTION. 22. EVEN OTHERWISE IF THE ARGUMENT OF THE LEARNED AUTHORISED REPRESENTATIVE IS ACCEPTED IT WILL MAKE THE PROVISIONS OF SECTION 263 264 OF THE INCOME- TAX ACT REDUNDANT IF THE ASSESSMENT IS SUBJECT MATTER OF APPEAL. CLEARLY THE PROVISIONS OF SECTION 263 AND 264 PROHIBITS THE ISSUES THAT ARE ALREADY PENDING IN APPEAL. 23. THE LEARNED THAT AUTHORISED REPRESENTATIVE HAS RELIED UPON THE DECISION OF THE HONOURABLE DELHI HIGH COURT IN CASE OF BHARAT GENERAL REINSURANCE CO. LTD. ( SUPRA ). WE HAVE CAREFULLY CONSIDERED THAT DECISION. THE FACT OF THE CASE WAS THAT THAT ASSESSEE INCLUDED THE INCOME IN THE RETURN FOR THE ASSESSMENT YEAR 1958 - 59 AND ON APPEAL THE TRIBUNAL HELD THAT INCOME FROM DIVIDENDS WAS NOT ASSESSABLE IN THE ASSESSMENT YEAR 1958 - 59 BUT IT WAS ASSESSABLE IN THE ASSESSMENT YEAR 1953 - 54. HOWEVER IN THAT PARTICULAR CASE THE ISSUE WAS BEFORE THE APPELLATE ASSISTANT COMMISSIONER WHERE THE ASSESSEE OBJECTED TO THE INCLUSION OF THE DIVIDEND INCOME AS INCOME PERTAINING TO THE RELEVANT PREVIOUS YEAR AND ALSO OBJECTED TO THE INCREASING THE QUANTUM OF DIVIDEND RECEIVED BY ADOPTING THE MARKET VALUE PAGE | 5 OF THE SPECIE IN WHICH IT HAD BEEN RECEIVED. THE APPELLATE ASSISTANT COMMISSIONER REJECTED BOTH THE CONTENTIONS. THEREFORE IN THAT PARTICULAR DECISION THERE WAS AN ISSUE WHICH WAS ALREADY DECIDED BY THE APPELLATE ASSISTANT COMMISSIONER AND THEREFORE THE ASSESSEE COULD AGITATE BEFORE THE TRIBUNAL. FURTHERMORE THE DECISION CITED BEFORE US DOES NOT DEAL WITH THE RIGHT OF THE ASSESSEE UNDER SECTION 253 (4) OF THE ACT. THEREFORE THE RELIANCE PLACED BY THE LEARNED AUTHORISED REPRESENTATIVE ON THAT DECISION IS IMPROPER FOR THE ISSUE BEFORE US. 24. THE LEARNED AUTHORISED REPRESENTATIVE HAS ALSO RELIED UPON THE DECISION OF THE HONOURABLE BOMBAY HIGH COURT IN CASE OF B R BAMASI ( SUPRA ). ON CAREFUL READING OF THAT DECISION IT SAYS THAT THAT THE NEW GROUND OF THE APPEAL WOULD SERVE ONLY AS A WEAPON OF DEFENCE AGAINST THE APPEAL. IN THE PRESENT CASE IT IS NOT AGAINST THE APPEAL OF THE REVENUE THAT ASSESSEE IS TAKING A DIFFERENCE BUT ASSESSEE IS TAKING A GROUND WHICH WAS NOT AT ALL MATTER OF DISPUTE BEFORE ANY OF THE LOWER AUTHORITIES. IN VIEW OF THIS THE ABOVE DECISIONS RELIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE DOES NOT SUPPORT THE CASE OF THE ASSESSEE. 25. THE ANOTHER DECISION RELIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE IS PURBANACHAL PARIBAHAN GOSTHI'S CASE ( SUPRA ) WHERE THE HONOURABLE COURT HAS HELD THAT A COMBINED READING OF SECTION 253(4) OF THE INCOME-TAX ACT 1961 AND RULE 22 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES 1963 MAKES IT ABUNDANTLY CLEAR THAT ANY PARTY AGGRIEVED AGAINST THE ORDER OF THE APPELLATE AUTHORITY CAN FILE A MEMORANDUM OF CROSS OBJECTIONS AGAINST ANY PART OF THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS). THE CROSS-OBJECTIONS NEED NOT BE CONFINED TO THE POINTS TAKEN BY THE OPPOSITE PARTY IN THE MAIN APPEAL. THE WORDS ''AGAINST ANY PART OF THE ORDER OF THE DEPUTY COMMISSIONER'' ARE WIDE ENOUGH TO COVER A SITUATION WHERE THE REVENUE HAS CHALLENGED THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS) ON THE MERITS REGARDING THE QUANTUM OF THE TAX LIABILITY BUT THE ASSESSEE IN CROSS-OBJECTIONS CAN CHALLENGE THE ORDER OF THE DEPUTY COMMISSIONER NOT ONLY ON THE QUANTUM OF TAX AMOUNT BUT ON OTHER POINTS ALSO. ON A POINT OF LAW THERE IS NO DIFFERENCE BETWEEN AN APPEAL AND A CROSS-OBJECTION. THE ONLY DIFFERENCE IF AT ALL THERE IS ANY IS THAT AN APPEAL CAN BE PREFERRED WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER WHEREAS A CROSS-OBJECTION CAN BE FILED WITHIN A PERIOD OF 30 DAYS OF THE DATE OF SERVICE OF THE APPEAL BY THE OPPOSITE PARTY. ON CAREFUL READING OF THE ABOVE DECISION IT IS APPARENT THAT THE CONTENTION OF THE REVENUE IN THAT APPEAL WAS THAT THAT THE ASSESSEE IN FILING CROSS OBJECTIONS SHOULD HAVE TAKEN ONLY THE ISSUES WHICH HAVE BEEN RAISED BY THE REVENUE IN ITS APPEAL IN THE CROSS OBJECTION OF THE ASSESSEE. FURTHER IN THAT PARTICULAR CASE THE ASSESSEE IN CROSS OBJECTION RAISE THE APPLICABILITY OF THE REGISTRATION OF THE FIRM HOLDING WHEN EITHER ONE OF THE ENTITIES WHICH WAS THE SUBJECT MATTER OF DISPUTE BEFORE THE ASSESSING OFFICER. THEREFORE THE ASSESSMENT IN THAT PARTICULAR CASE WAS MADE HOLDING THE ASSESSEE FORMER NOT ENTITLED TO REGISTRATION AS WELL AS MAKING THE ADDITION. BEFORE THE REVENUE THE ASSESSEE IN CROSS OBJECTION CHALLENGED THE PAGE | 6 ISSUE OF REGISTRATION OF THE FIRM. THEREFORE IN THAT PARTICULAR CASE BOTH THE ISSUES WERE BEFORE THE ASSESSING OFFICER EMANATING FROM THE ORDER OF THE AO. HENCE THE FACTS OF THAT CASE ARE QUITE DISTINCT FROM THE FACTS BEFORE US. 26. THE NEXT DECISION RELIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE IS OF ASSAM CO. (INDIA) LTD.'S CASE ( SUPRA ). THE FACTS IN THAT PARTICULAR CASE IS THAT IN THE RETURN OF INCOME THE APPLICANT COMPANY CLAIMED DEDUCTION UNDER SECTION 35B OF THE ACT IN RESPECT OF WAREHOUSE CHARGES PAID ABROAD. IN THE ASSESSMENT THE LEARNED ASSESSING OFFICER ALLOWED THE WEIGHTED DEDUCTION OF WAREHOUSE CHARGES UNDER SECTION 30 5B (1) (B) (IV) OF THE ACT READ WITH RULE 6AA OF THE INCOME TAX RULES 1962. THE COMMISSIONER REVISED THE ORDER UNDER SECTION 263 AND WITHDREW THE SAID DEDUCTION. THE ASSESSEE FILED AN APPEAL BEFORE THE ITAT AGAINST THE ORDER UNDER SECTION 263 OF THE INCOME-TAX ACT. THE TRIBUNAL DISMISS THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE COMMISSIONER. IN THE PRESS ASSESSMENT PROCEEDINGS THE ASSESSEE OBJECTED TO THE WITHDRAWAL OF WEIGHTED DEDUCTION ON SEVERAL GROUNDS. THE LEARNED AO REJECTED THE CONTENTION OF THE ASSESSEE AND FURTHER APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE COMMISSIONER APPEALS. THE COMMISSIONER ALLOWED THE CLAIM OF THE ASSESSEE AND THEREFORE THE REVENUE WAS BEFORE THE TRIBUNAL. FURTHER THE TRIBUNAL REJECTED 1 OF THE CONTENTION OF THE ASSESSEE WITH RESPECT TO THE DISALLOWANCE AS THE ASSESSEE DID NOT FILE ANY APPEAL OR CROSS OBJECTION BUT THE REVENUE FILED THE APPEAL. THEREFORE IN THAT PARTICULAR CASE THE DISPUTE WAS BEFORE THE ASSESSING OFFICER THE LEARNED COMMISSIONER APPEALS AND EVEN INTO 263 PROCEEDINGS. THESE ARE NOT THE FACTS BEFORE US. BEFORE US THE AMOUNT WAS NOT DISPUTED AT ALL BEFORE ANY OF THE LOWER AUTHORITIES. HENCE RELIANCE PLACED BY THE LEARNED AUTHORISED REPRESENTATIVE ON THIS DECISION IS MISPLACED. 27. AS THE ASSESSEE HAS RAISED THE ISSUE IN CROSS OBJECTION WHICH WAS NOT THE SUBJECT MATTER OF DISPUTE BEFORE THE LD. AO AND ALSO NOT THE SUBJECT MATTER OF APPEAL BEFORE THE 1ST APPELLATE AUTHORITY NOT BEFORE THE ASSESSING AUTHORITY AND THEREFORE LOOKING AT THE PROVISIONS OF SECTION 253 (4) OF THE ACT THEREFORE ASSESSEE CANNOT AGITATE THE TAXABILITY OF NON-COMPETE FEES FOR THE 1ST TIME BEFORE THE TRIBUNAL AS IN NO PART OF THE ORDER OF COMMISSIONER OF APPEALS HAS CONSIDERED AND DECIDED THE ISSUE OF TAXABILITY OF NON COMPETE FEES. 7. THE ISSUE HERE IS THAT AN ORDER HAS BEEN PASSED BY THE COORDINATE BENCH WHEREIN A FRESH CLAIM IS RAISED BY THE ASSESSEE BEFORE THE COORDINATE BENCH WHICH WAS NEITHER A MATTER OF DISPUTE BEFORE THE ASSESSING OFFICER OR NOT EVEN BEFORE THE LEARNED CIT APPEAL BUT THE ASSESSEE RAISED A CROSS OBJECTION IN APPEAL FILED BY THE REVENUE RAISING A FRESH CLAIM. TO PUT IT SIMPLY ASSESSEE ASKED FOR AN EXCLUSION OF ANY INCOME ALREADY PAGE | 7 SHOWN IN THE RETURN OF INCOME OFFERED TO TAX BY THE ASSESSEE NOT DISPUTED BEFORE THE ASSESSING OFFICER NOT AGITATED BEFORE THE LEARNED CIT A AS NOTHING DECIDED AGAINST THE ASSESSEE BUT IN AN APPEAL FILED BY THE REVENUE RAISED A CROSS OBJECTION STATING THAT THE INCOME WHICH HAS ALREADY BEEN OFFERED FOR TAXATION IN THE RETURN OF INCOME FILED BY THE ASSESSEE IS A CAPITAL RECEIPT AND NOT LIABLE FOR TAXATION. THIS WAS REJECTED BY THE TRIBUNAL IN THE ABOVE ORDER AS PER REASONS GIVEN ABOVE. 8. IN THE MISCELLANEOUS APPLICATION THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT HONOURABLE DELHI HIGH COURT IN PRINCIPLE COMMISSIONER OF INCOME TAX VERSUS SILVER LINE 383 ITR 455 (DELHI) HAS DECIDED THAT EVEN THE ADDITIONAL GROUNDS CAN BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL IN A CROSS OBJECTION. HE SPECIFICALLY REFERRED TO FACT IN THAT CASE WHEREIN THE ASSESSEE RAISED AN ADDITIONAL GROUND THAT NO NOTICE U/S 143 (2) HAD BEEN ISSUED PRIOR TO FINALIZE OF THE REASSESSMENT ORDER BY THE ASSESSING OFFICER AND THEREFORE THE ASSESSMENT ORDER IS PASSED WITHOUT JURISDICTION. THIS ISSUE WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND THERE WAS NO CONCERN FOR THE ASSESSING OFFICER IN THE ABSENCE OF ANY RETURN FILED BY THE ASSESSEE PURSUANT TO NOTICE ISSUED U/S 148 OF THE INCOME TAX ACT TO ISSUE ANY NOTICE U/S 143 (2) OF THE ACT. AS PER PARA NUMBER 16 OF THE DECISION OF THE HONOURABLE DELHI HIGH COURT IT WAS HELD THAT THAT WHEN THERE BEING NO FRESH EVIDENCE OR DISPUTED FACTS SHOUGHT TO BE BROUGHT ON RECORD THE ISSUE BEING PURELY ONE OF LAW THE ITAT WAS NOT IN ERROR IN PERMITTING THE ASSESSEE TO RAISE SUCH A POINT BEFORE IT. THE HONOURABLE HIGH COURT DREW SUPPORT FROM THE DECISION OF THE HONOURABLE SUPREME COURT IN NATIONAL THERMAL POWER CO LTD VERSUS COMMISSIONER OF INCOME TAX 229 ITR 383 (SC) . IN THE IMPUGNED CASE BEFORE US THE DECISION OF THE HONOURABLE DELHI HIGH COURT IN PCIT VERSUS SILVER LINE LTD WAS NOT AT ALL CITED BY THE ASSESSEE AT ANY TIME. THEREFORE THE QUESTION THAT ARISES IS THAT EVEN IF NONE OF THE PARTIES HAS CITED THE DECISION OF THE HONOURABLE JURISDICTIONAL HIGH COURT AND THE SAME WAS NOT CONSIDERED BY THE ITAT DOES IT MAKE THE ORDER PASSED BY PAGE | 8 THE COORDINATE BENCH SUFFERING FROM A MISTAKE APPARENT FROM RECORD. THE ANSWER HAS BEEN ALREADY RENDERED BY THE HONOURABLE SUPREME COURT IN ASST COMMISSIONER OF INCOME TAX VERSUS SAURASHTRA KUTCH STOCK EXCHANGE LTD 305 ITR 227 WHEREIN THE COORDINATE BENCH PASSED AN ORDER U/S 254 (2) WHERE A DECISION OF THE HONOURABLE GUJARAT HIGH COURT THOUGH NOT CITED BEFORE THE COORDINATE BENCH WAS IGNORED. THE COORDINATE BENCH RECALLED THAT ORDER HOLDING THAT A BINDING DECISION HAS NOT BEEN CONSIDERED BY ITAT. SUCH ORDER OF THE ITAT WAS CHALLENGED BEFORE THE THE HONOURABLE SUPREME COURT IN PARA NUMBER 39 40 HAS DEALT WITH THIS ISSUE AND HELD THAT THE NON-CONSIDERATION OF A DECISION OF JURISDICTIONAL HIGH COURT OR OF THE SUPREME COURT CAN BE SAID TO BE A MISTAKE APPARENT FROM THE RECORD. THEREFORE IN THE PRESENT CASE THE DECISION OF THE HONOURABLE DELHI HIGH COURT IN CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX VERSUS SILVER LINE (SUPRA) WAS NOT AT ALL CONSIDERED AND THEREFORE THE ORDER PASSED BY THE COORDINATE BENCH IN DISMISSING THE CROSS OBJECTION OF THE ASSESSEE SUFFERS FROM A MISTAKE APPARENT FROM RECORD. HENCE THE CROSS OBJECTION OF THE ASSESSEE IS RECALLED REGISTRY IS DIRECTED TO FIX THE SAME FOR HEARING IN DUE COURSE. 9. ACCORDINGLY THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN MA NUMBER 414/DEL/2019 IS ALLOWED. 10. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22 MARCH 2021. SD/- SD/- (AMIT SHUKLA) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 22/03/2021. *MEHTA* PAGE | 9 COPY FORWARDED TO 1. APPLICANT; 2. RESPONDENT 3. CIT 4. CIT (APPEALS) 5. DR:ITAT ASSISTANT REGISTRAR ITAT NEW DELHI PAGE | 10 DATE OF DICTATION 22.03.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.03.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 22.03.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS 22.03.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 22.03.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 22.03.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 22.03.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 2 . 0 3 . 2 0 2 1 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER