Cat/2/2012 Of The Commissioner Of Income Tax-Iv v. M/S Smruti Constructions

Civil Application (T)No.2 of 2011. 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR Civil Application (T) No. 2 of 2012.In Income Tax Appeal No. 4 of 2011 (d). Commissioner of Income Tax-IV. ..Vrs.. M/s. Smruti Constructions. ----------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : B. P. DHARMADHIKARI & A. B. CHAUDHARI, JJ. DATE : MARCH 15, 2012. 01) Heard. 02) Mr. Thakkar, the learned Advocate, has raised preliminary objection, as according to him, there is no error in the orders passed by this Court. He contends that the Court has heard the argument and while issuing notice, the ground on which the notice was issued, was specifically mentioned. Thereafter, while disposing of the Income Tax Appeal No.04 of 2011, on 21[st] November, 2011, in the light of the argument advanced, Appeal has been partly Civil Application (T)No.2 of 2011. 2 allowed and only one of the questions raised in the memo of Appeal has been placed back before the ITAT. According to him, the reason being put forth for review cannot be accepted and if accepted it will set down a bad precedent. He wants to rely upon certain Judgments in this respect. 03)We have heard Mr. Anand Parchure, the learned Advocate, on merit also to find out what is the stand of review. Mr. Parchure, the learned Advocate, has contended that though the books of account were disbelieved under Section 145(3)of the Income Tax Act, 1961, the payment to sub-contractor of Rs. 26,41,220/-(rupees twenty six lakh forty one thousand two hundred twenty only) could have been looked into by the A.O. and as there was no deduction at source, the provisions of Section 40(a)(ia)of the Act, have been rightly given effect. He contends that the ITAT has unnecessarily corelated this aspect with rejection of the books of account. Civil Application (T)No.2 of 2011. 3 04)According to Mr. Thakkar, the learned Advocate, as the books of account were disbelieved and income has been estimated by A.O. independently, the ITAT has correctly appreciated the position in the light of two Judgments of High Courts, namely High Court of Andhra Pradesh and High Court of Allahabad. Without prejudice to preliminary objection raised by him, he submits that no substantial question of law, therefore, arises on that count and, hence, that question was not correctly argued by the learned Counsel for Revenue and hence the Appeal is properly disposed of by this Court on 21[st] November, 2011. 05)The contention raised by the learned Counsel has been appreciated by the ITAT and after noticing that the A.O. did not accept books of account, the ITAT has relied upon the Judgment of Andhra Pradesh High court and also Allahabad High Court. In this view of matter, we find that the Civil Application (T)No.2 of 2011. 4 substantial question of law as sought to be raised does not arise for consideration. 06)Even otherwise as argued by Mr. Thakkar, the learned Advocate, the fact that particular issue was not argued before this Court cannot be a ground for seeking review normally. However, the learned Counsel has put forth his confusion or misunderstanding as the reasons for not arguing the other issue. Hence, we have considered that issue on merits also. 07)Hence, on both grounds, we reject the application. JUDGE JUDGE Deshmukh