Commissioner of Income Tax vs Shiya Dawoodi Bohara Jamat

A.M. Sapre, J.—The decision rendered in this appeal shall also govern disposal of ITA''s Nos. 298/07, 299/07, 300/07, 301/07, 302/07, 303/07, 304/07, 305/07, 306/07, 350/07, 352/07 and 353/07 because firstly all these appeals involve identical points secondly, it is between the same parties (i.e., same assessee) and lastly, it seeks to challenge the same impugned order passed by Tribunal. This is an appeal filed by Commissioner of income tax (Revenue) u/s 260A of the income tax Act (for short called "the Act") against an order dated 20-2-2007 passed by ITAT in ITA No. 807/IND./2005.

The question that arises for consideration in this appeal is whether it involves any substantial question of law as is required to be made out u/s 260A ibid that being sine qua non for admission of the appeal for final hearing.

Heard Shri R.L. Jain, Sr. Advocate with Ku. Veena Mandlik, learned counsel for the appellant.

Facts in brief that led to filing of this appeal are these.

The respondent (assessee) claiming to be the public Trust applied to Commissioner of income tax u/s 12A /12AA of the Act for its registration. It is this application which came to be dismissed by the Commissioner by order dated 9-9-2005 thereby Commissioner declined to grant registration to assessee (respondent herein) as prayed by them u/s 12A /12AA ibid. The respondent felt aggrieved by the order of Commissioner filed an appeal before the ITAT. In appeal, the respondent filed certain additional documents in support of their original application for registration made u/s 12A /12AA ibid which they had not filed along with their original application before Commissioner. The Tribunal by impugned order took the additional evidence on record and while setting aside of the order passed by the Commissioner remanded the case to Commissioner for again deciding the application afresh after taking into consideration the additional evidence adduced by the respondent (assessee) in appeal. This is what the Tribunal held while allowing the appeal filed by respondents and remanding the case to Commissioner.

We, therefore, set aside the orders of the ld. CITs and restore the matter to their files with the direction to redecide the applications for registration by examining the evidences filed by the assessees before us. The ld. CITs are free to examine the issue by directing the assessees to produce any other evidence or may make inquiries directly from different authorities like local, civic body, etc. in order to find out the truth. The ld. CITs shall take into consideration the decision of the Hon''ble M.P. High Court in the case of Laxminarayan Maharaj and Another Vs. Commissioner of Income Tax and Others, and observations in this order while deciding the applications for registration. The CITs are directed to give reasonable sufficient opportunity of being heard to the assessees. Assessees are directed to file copies of evidences before the CIT which have been admitted by us.

As a result, all the appeals of the assessees are allowed for statistical purposes. CITs are directed to decide the matter of registration within four months of receipt of this order.

It is against this order, the Commissioner of income tax (Revenue) has felt aggrieved and filed this appeal.

Having heard the learned counsel for the appellant (revenue) and having perused the record of the case, we are of the considered opinion that this appeal does not involve any substantial question of law within the meaning of section 260A ibid and hence we are inclined to dismiss the appeal in limine.

In our considered view no fault can be noticed in the impugned order for several reasons. In the first place, it is a remand order. Secondly, it does not decide any of the rights of the assessee nor of revenue much less against the revenue. Thirdly, once the additional evidence is allowed to be taken on record as being material for deciding the application made by assessee u/s 12A /12AA ibid at the appellate stage by the appellate authority then as a necessary consequence the matter has to be sent back to the original authority (as in this case-Commissioner) for deciding the case again on merits strictly in accordance with law after taking into consideration the entire material on record, i.e., the one already filed along with the original application and the one filed at the appellate stage as additional evidence. Fourthly, it cannot be disputed that Tribunal while exercising the appellate powers u/s 254 ibid has jurisdiction to remand the case to the subordinate authority for deciding the dispute. Fifthly, as a result of the remand, no rights of revenue are in any way adversely affected because after the remand, the Commissioner is now again called upon to decide the application made by respondent (assessee) on merits strictly in accordance with law and lastly, every appellant in appeal has a right to file additional evidence in support of their case and if the appellate authority feels that additional evidence is material for deciding the controversy involved in the case then in the interest of Justice, the same can always be allowed to be filed even at an appellate stage. In this case, the Tribunal has considered the additional evidence to be material for deciding the application made by the assessee though prima facie and hence, granted indulgence to assessee to rely upon the same in support of their application made u/s 12A ibid before the Commissioner. We find no good ground to upset this finding as in our view, looking to the nature of controversy, the additional evidence adduced by the assessee could be taken on record. It was, thus, rightly allowed to be taken on record for deciding the application by the Commissioner.

In our considered view, the remand order by itself does not involve any question of law much less substantial question of law. It also does not involve any jurisdictional question because as observed supra, the appellate court has jurisdiction to remand the case. It is much more so when the Tribunal has not decided the issue finally one way or other then in such circumstances there does not arise any case to interfere by this Court in its appellate jurisdiction.

In view of foregoing reasons, we are of the considered view that impugned order which in substance is in the nature of remand does not suffer from any illegality and hence it deserves to be upheld. It is, accordingly, upheld. As a consequence, the appeal fails and is hereby dismissed in limine. However, before parting with the case, we wish to observe that Commissioner now would decide the application made by respondent (assessee) strictly in accordance with law and uninfluenced by dismissal of this appeal and any observations made by us because we have not applied our mind to the merits of the controversy. In other words, the Commissioner would decide the application made by respondent u/s 12A of the Act strictly in accordance with law on the basis of all documents on record of the case uninfluenced by any of our observations made in this order because in this appeal we have refrained ourselves from examining the merits of the case of assessee.