Commissioner Of Income Tax, Jaipur-Ii, Jaipur v. M/S Lok Vikas Leasing Ltd. 3-F

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 71 / 2012 Commissioner of Income Tax, Jaipur-II, Jaipur ----Appellant Versus M/S Lok Vikas Leasing Ltd. 3-F-1, Shivanand Marg, Malviya Nagar,Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. R.B. Mathur with Mr. K.D. MathurFor Respondent(s) : Mr. Sandeep Taneja _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI Order 09/10/2017 1.By way of this appeal, the appellant has assailed thejudgment and order of the Tribunal whereby the Tribunal haspartly allowed the appeal of the assessee. 2.This Court while admitting the matter framed the following substantial question of law:- “Whether on the facts and in the circumstancesof the case, the ITAT was justified in law inpassing two orders in the case of the assesseefor the same assessment year on the sameissue.” 3.However, when the matter was heard on 14[th] September, 2017, following order was passed:- “1.By way of this appeal, the appellant haschallenged the judgment and order of the Tribunalwhereby the Tribunal has partly allowed the appealof the assessee. 2.The case has a chequered history. Originally against the order of the CIT(A), the departmentpreferred an appeal which came to be dismissedvide annexure-3 and subsequently vide annexure-4 appeal of the assessee was allowed. However,vide annexure-5, M. A. of the department wasallowed. When it was pointed out to the Tribunalthat there are two contradictory orders, videannexure-6 the Tribunal held as under:- The Hon’ble Delhi High Court in the case of CIT V.Samtel Colour ltd. 11 TOIL 53-Hon’ble High Court-held, that the assessee stand discharged its ownonus by giving the details available in theapplication form. When all the necessary detailsare available in the application form then the onusstands discharged by the assessee and it was onthe Revenue to establish that such credit was notgenuine. The Revenue has not made any effort byissuing summons u/s 131. Of the AO fails to issuesummons u/s 131 then no addition u/s 68 can bemade. Reference is made to the case of CIT v.Orissa Corporation Provisions (P) ltd., 159 ITR78(S.C.), Hence in this case the Department hasfailed to pursue the inquiry to testify thecorrectness of the assessee’s explanation of cashcredit and therefore, it is held that the ld. CIT(A)was not justified in confirming the additionmentioned in grounds No. 1 to 3 of the appeal ofthe assessee? 3. Mr. Mathur counsel for the appellant isaggrieved by the last order passed by the Tribunaland he wants for restoration of the orderannexure-3. 4. In our opinion in this case he should withdrawthe MA. with a view to enable him to takeinstructions, list on 19.09.2017. 4.Mr. R.B. Mathur, counsel for the appellant seeks permission to withdraw the original M.A. at annexure-5 to the appealmemo. We permit the withdrawal of the M.A. However, theappellant will be at liberty to challenge any consequential orderand in that case the matter will be restored to original orderpassed at annexure-4. 5.It will be open for the department to pursue in furtheranceof the order dated 30[th] April, 2007 and the action will be taken inaccordance with law. 6.The appeal stands disposed of. (DINESH CHANDRA SOMANI),J. (K.S. JHAVERI),J. A.Sharma/96