Appellant-Petitoner v. The Joint Commissioner Of Income Tax, Range-4, Statue Circle,Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D. B. Special Appeal (Writ) No. 743/2018 In S.B. Civil Writ Petition No. 6568/2017 Shri Rajendra Kumar Sharma, E-36-B, Vijay Nagar, Murlipura,Sikar Road, Jaipur. ----Appellant-Petitoner Versus The Joint Commissioner of Income Tax, Range-4, Statue Circle,Jaipur. ----Respondent For Appellant(s) : Mr. Girish Dave with Mr. Mahendra Gargiya. For Respondent(s): Mr. R.B. Mathur. HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 05/04/2019 This appeal has been filed by the appellant-assesseechallenging judgment dated 14.03.2018 passed by the learnedSingle Judge of this Court whereby writ petition filed by theappellant has been dismissed. Writ petition was filed by theappellant challenging order dated 08.03.2017 passed by theIncome Tax Appellate Tribunal, Jaipur Bench, Jaipur (for shot ‘theTribunal’) whereby while entertaining misc. application filed by theappellant, the Tribunal recalled its earlier order dated 27.04.2016to hear on additional grounds. Learned counsel for the appellant has taken the Courtthrough the order dated 08.03.2017 passed by the Tribunal and has argued that while rectification application has been allowed onthe first part of the additional grounds and the Tribunal hasrecalled its order dated 27.04.2016 to the extent of admissionrelating to the inspector’s report. The Tribunal, however, despitetaking note of the another part of the additional grounds regardingdoubt expressed by it about genuineness of the agreement dated02.06.2011, no argument was raised by the Revenue, no findingwhatsoever has been given thereagainst and in fact, it wasnobody’s case before the Tribunal. Mr. R. B. Mathur, learned counsel appearing on behalf ofthe respondent-revenue is not in a position to dispute that noargument whatsoever was raised before the Tribunal by theRevenue but the Tribunal having taken note of the argument onbehalf of the revenue, not raising any doubt with regard togenuineness of the agreement, has not given any finding. On hearing learned counsel for the parties and perusingthe impugned judgment, we find that the appellant-assesseehimself filed an application under Section 254(2) of the IncomeTax Act on two parts of the additional grounds. First part waspertaining to the findings recorded by the Commissioner ofIncome Tax (Appeals) on the basis of Inspector’s Report dated13.03.2014 and it was argued that the said report has been reliedupon by the assessing officer without providing opportunity to theappellant and the CIT(A) has also been referred to it withoutallowing opportunity to the appellant to cross-examine the witnesson that point. Another ground was to the effect that an errorapparent on the face of the record has crept in the order as appealof the assessee-appellant was dismissed on the plea that thegenuineness of the agreement dated 02.06.2011 was questionable, the veracity of which was never an issue before, orunder challenge by, both the authorities below. This was neverthe case of the revenue or argued on its behalf. In our view, the Tribunal has erred in law in not passingany specific order on second part of the additional grounds asnoted above. We are therefore inclined to set aside order dated08.03.2017 to the extent of second part of the additional groundsand direct that the application filed by the appellant-assessee shallstand allowed in toto with respect to both the parts of theadditional grounds as we are informed that the appeal that wasrestored for hearing on first part of the additional grounds, has notbeen decided yet, may now be heard and decided on both thegrounds. Appeal is disposed of with the aforesaid directions. (GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J MANOJ NARWANI /83