Commissioner of Income Tax vs Vijay Kumar Rajendra Kumar and Co.

We have heard, counsel for appellant on the question of admission, against an order dt. 16th July, 2003 passed by the Tribunal in ITA No. 263/Ind/1997 in this second appeal filed by the Revenue u/s 260A of the IT Act., In our opinion, the Tribunal has not decided any issue much less an issue of law or of facts and have simply dismissed the appeal filed by the Revenue and that too on the concession given by the Departmental counsel himself stating therein that the appeal has rendered infructuous.

We, therefore, fail to see as to why and on what basis and for what purpose the Revenue has now come up in appeal before this Court. When the Departmental counsel who appeared on behalf of the Revenue himself conceded stating therein that the Revenue has no case before the Tribunal and that the appeal preferred by the Revenue has become infructuous and hence it be accordingly dismissed as such, there was nothing for the Tribunal to decide much less for the High Court to decide u/s 260A of the IT Act, in this second appeal.

Submission of learned counsel for appellant was that a wrong concession was given by the Departmental Representative before the Tribunal and that appeal ought to have been heard and decided by the Tribunal on merits. If that be so the remedy of the appellant, i.e., Revenue lies in making an application before the Tribunal for rectification of the order, as required u/s 254(2) of the IT Act if law permits, setting out the facts in support of the submission. In case if it is proved that a wrong concession was given by the Departmental Representative before the Tribunal then an action is also called for against the Departmental Representative who appeared before the Tribunal and conceded the issue in favour of the assessee as to how and in what circumstances and for what reasons the so called concession was given.

We do not wish to express any opinion on the merits of the controversy nor even on the controversy sought to be raised by the appellant in this appeal because the Tribunal did not decide any issue on merits. We, therefore, dismiss this appeal in limine but by making aforesaid observations.