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Duty of Tribunal - Passing a speaking order
November, 15th 2006
CIT vs Ferro Concrete Construction (I) (P) Ltd.
Citation 155 Taxman 45
  204 CTR 360
  Topic Duty of Tribunal
  Sub Topic Passing a speaking order
  Summary AY 1993-94. The tribunal was duty bound to discuss each ground and each claim as well as the reasons for allowing or rejecting the claim. Since no reasons were recorded while partly allowing the assessees appeal, the case was remitted to the tribunal to pass a speaking order on all grounds.

S.254(1) of the Income Tax Act 1961

High Court of Madhya Pradesh

CIT vs Ferro Concrete Construction (I) (P) Ltd.

IT Appeal No. 144 of 2003

A.M. Sapre and Ashok Kumar Tiwari, JJ

4 April 2006

R.L. Jain and Ku. V. Mandlik for the Applicant
B.C. Bagadia and Purohit for the Respondent

ORDER

A.M. Sapre, J. - This is an appeal filed by revenue (Commissioner of Income-tax) under section 260A of the Income-tax Act against an order dated 30-4-2003, passed by ITAT (for brevity hereinafter referred to as Tribunal') in ITA No. 33/Ind./97. This appeal was admitted for final hearing on following substantial questions of law :

"1. Whether I.T.A.T. was justified In granting partial deduction in respect of certain deductions without discussing and specifying in respect of each head of the source of such deduction ?

2. Whether I.T.A.T. was justified in granting deduction in respect of Rs. 5,60,743 for the year in question without justifying and deciding the nature of its receipt in the hands of the assessee ?

3. Whether assessee is entitled to claim the deduction of Rs. 5,50,211.75 being an amount received by way of interest on F.D.R. and a sum of Rs. 110.66 being an interest received (Narmada Nagar) [see page 67 of the Paper Book] in view of the law laid down by this court in the case of CIT v. Purushottamdas Shoribhai and Co. 226 ITR 579 which in clear terms holds that assessee is not entitled to claim deduction on such receipt ?"

2. Heard Shri R.L. Jain, learned senior counsel with Ku. V. Mandlik, learned counsel for the revenue/appellant and Shri S.C. Bagadia, learned senior counsel with Shri Purohit, learned counsel for the assessee/ respondent.

3. The dispute in this appeal relates to assessment year 1993-94. This is how the Tribunal dealt with the whole issue in para 8.2 of the impugned order while partly allowing the appeal filed by the revenue being ITA No. 33/ Ind./97 on ground Nos. 1 and 2 mentioned in paras 7 and 8 :

"8.2 We have considered the arguments advanced by the parties in view of the materials available on the record and have gone through the order impugned. The ld. CIT(A) has accepted the claim of the assessee agreeing with the submissions made on behalf of the assessee that there was no basis to make a separate addition of this amount as the receipts are out of contract expenses increased and not from other business and that the amount had already been included in the receipts of the assessee forming part of the contract receipts. We do not agree with the view of ld. CIT (A) so far income of Rs. 70,784.10 from photocopy charges and Rs. 74,266.83 from other income as per the detail given at page No. 53 of the paper book. The reason being that income from photocopy charges cannot be termed as income from the business of the assessee and the details of other income amounting to Rs.74,266.83 have not been furnished by the assessee, hence it cannot be accepted as income from the business of the assessee. So far other amounts are concerned; we do not find reason to interfere with the order of the ld. CIT (A). We thus restore addition of Rs. 1,45,050.93 out of Rs. 7,05,793. The ground No.2 is thus partly allowed."

4. Though we have heard the lengthy arguments on behalf of both the parties on the questions of law framed when learned counsel appearing for parties cited plethora of cases in support of their respective contentions in CIT v. Purushottamdas Shoribhai and Co. [1997] 226 ITR 579 (MP), Tuticorin Alkali Chemicals and Fertilizers Ltd. v. CIT[ 1997] 227 ITR 172 (SC), 132 ITR 20 (Delhi) (sic), CIT v. Tripuati Woollens Mills Ltd. [1992] 193 ITR 252 (Cal.), CIT v. Madras Refineries Ltd. [1997] 228 ITR 354 (Mad.) and Pandian Chemicals Ltd v. CIT [2003] 262 ITR 278 (SC), we are of the considered view that the Tribunal did not discuss any issue on merits except to record the eventual finding partly in favour of revenue and partly against them. The Tribunal did not even refer to any of the case law governing the field and in a very cursory and casual manner disposed of the appeal filed by the revenue, referred above.

5. We cannot countenance such casual approach resorted to by the Tribunal while deciding the appeal. In the first place, there is no discussion as to why the Tribunal does not consider it proper not to interfere with the order of CIT (Appeals). It is not even clear as to what was the claim of assessee and on what ground CIT (Appeals) allowed and on what ground the revenue challenged and why those challenges have no substance. We are, therefore, unable to know even the facts in relation to those deductions claimed by the assessee and why and on what basis they were upheld by the CIT (Appeals) in favour of assessee and later by Tribunal. To again repeat the words of Tribunal while upholding the order of CIT (Appeals), it was observed that :

"So far other amounts are concerned; we do not find reason to interfere with the order of the ld. CIT (A). We thus restore addition of Rs. 1,45,050.93 out of Rs. 7,05,793. The ground No. 2 is thus partly allowed."

6. With respect, we cannot concur with this type of disposal of appeal by the Tribunal. Time and again, the Supreme Court has cautioned that Tribunal being the last court of facts it must deal with all the issues in detail with reference to facts and decided cases of Supreme Court and High Court. Though, it is rightly said that "brevity is virtue", but in our opinion, it cannot be to the extent followed by the Tribunal while disposing of the appeal.

7. In an appeal filed under section 260A of the Act, we cannot embark upon the facts and law applicable to the facts as a fact finding court of appeal. We can go into the legal position once the factual finding is returned by the Tribunal. We can also examine the legal finding recorded by the Tribunal on facts found proved. But when there is neither discussion, nor finding much less in the context of decided cases in the impugned order, we cannot be called upon to go into all facts and law de novo like the Tribunal. It was the duty of Tribunal to have taken up the case relating to each deduction claimed by the assessee and then looking to its nature and the claim of assessee, it should have decided as to whether it is capable of being granted in favour of assessee and if so, why and on what basis ? Similarly, in the event of same being decided against the assessee, the reasoning for rejection duly supported with decided judicial verdict on the issue should have been given. It is not done in this case and hence, interference is called for.

8. We are, therefore, of the view that a case for remand to Tribunal is made out. Section 260A of the Act empowers us to remand the case to Tribunal, if we find that case to that effect is called for. In this case, it is called for.

9. Accordingly and in view of foregoing discussion, while answering question No. 1 in favour of appellant, we allow the appeal and while setting aside of the order impugned, remand the case to Tribunal for again deciding the appeal filed by revenue in ITA No. 33/Ind./97 on merits, keeping in view the observations made supra. Let this be done within six months from the date of appearance of parties before the Tribunal on 8-5-2006.

No costs.

 
 
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