Date Of Decision: 11.07.2019 v. Commissioner Of Income Tax

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA ITA No.12 of 2019 Shri Ajay Goel Date of decision: 11.07.2019 … Appellant Versus Commissioner of Income Tax …Respondents Coram: The Hon’ble Mr. Justice V. Ramasubramanian, Chief Justice. The Hon’ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?[1] For the Appellant :Mr. Ajay Vaidya, Advocate. For the Respondents : Mr. Vinay Kuthiala, Senior Advocate with Mr. Diwan Singh Negi, Advocate. V. Ramasubramanian, Chief Justice (Oral) The assessee has come up with the above appealunder Section 260-A of the Income Tax Act, 1961 (hereinafterreferred to as ‘the Act’), raising the following substantialquestions of law:- (i)Whether the failure of the Tribunal to addressthe issue relating to the bar of limitation, on facts, 1Whether reporters of Local Papers may be allowed to see the judgment? in the light of the findings on other issues, is inaccordance with law? (ii)Whether the Tribunal could have remandedthe matter back to the Assessing OfÏcer, afterhaving expressed a conclusive opinion that theprovisions of Section 50C of the Act are notapplicable for the sale of assets, which are part ofstock? 2.Heard Mr. Ajay Vaidya, learned counsel for theappellant and Mr. Vinay Kuthiala, learned Senior Counsel, dulyassisted by Mr. Diwan Singh Negi, learned counsel, for therespondent-Department. 3.Pursuant to the order dated 5.12.2018, the recordshave been produced by Shri Lalit Bhati, Inspector, Income TaxDepartment, Shimla, Himachal Pradesh. 4.Let us first take up the second substantial questionof law, as it is capable of easy disposal. In Paragraph 7.5 ofits order, the learned Income Tax Appellate Tribunal, hascorrectly understood the legal position that the provisions ofSection 50C of the Act, are not applicable for the sale ofassets, which are part of the stock in trade. But, the Tribunal was convinced to remand the matter back to the AssessingOfÏcer, so that he can examine whether the asset in questionhas been shown or reflected as stock in trade or in closingstock in the regular returns. 5.The objection of the appellant, is not to the answer given by the Tribunal to the question of law, but to the orderof remand. A remand on a question of fact, cannot be raisedas a substantial question of law, in an appeal before thisCourt. After all, the appellant is not prejudiced by the order ofremand. It is true that the Income Tax Appellate Tribunal,being a final authority, on the question of fact, could havealso examined the returns independently, but its failure toexamine the returns independently, cannot give rise to asubstantial question of law. Therefore, we do not entertainthis appeal on the second substantial question of law. 6.Insofar as the first substantial question of law isconcerned, the relevant portion of order of the Tribunal is inthe penultimate paragraph, namely Paragraph-19. Paragraph-19 of the impugned order of the Tribunal reads as under:- “In the revised grounds submitted, in Ground No.2the assessee has challenged that the upholding ofLd. DCIT’s order dated 23.03/2013 which seems tohave been passed after 31/03/2013. Since thequantum additions have been adjudicated on factsof the case and on merits, and since the assesseehas got substantial relief, any adjudication on thisissue becomes academic in nature and hence notbeing dealt with. 7.According to the petitioner, the order of assessment, though bears the date 28.3.2013, was actuallypassed after 31.3.2013, in order to show as though it waspassed within the period of limitation. According to thelearned counsel for the petitioner, he has informationreceived under the Right to Information Act, which wouldshow that the order was predated, but was actually passedbeyond 31.3.2013, which was the last date for passing theorder of assessment. 7.According to the petitioner, the order of assessment, though bears the date 28.3.2013, was actuallypassed after 31.3.2013, in order to show as though it waspassed within the period of limitation. According to thelearned counsel for the petitioner, he has informationreceived under the Right to Information Act, which wouldshow that the order was predated, but was actually passedbeyond 31.3.2013, which was the last date for passing theorder of assessment. 8.It is true that the Commissioner of Income Tax(Appeals), has recorded a categorical finding that the orderwas in fact passed on 28.3.2013. But, the question whether the order was passed actually on 28.3.2013 or whether it waspredated, is a question of fact, which the Income TaxAppellate Tribunal, being the final authority on fact, shouldhave gone into. Since the Tribunal did not go into thisquestion, we are of the view that this question has to beanswered in favour of the appellant and the matter remandedback to the Appellate Tribunal. 9.Accordingly, the first substantial question of law, isanswered in favour of the appellant, holding that theAppellate Tribunal, ought to have considered this question inthe light of the disputed facts. Accordingly, the appeal isallowed and the matter remanded back to the Income TaxAppellate Tribunal for examination of only this aspect. Pending application(s), if any, also stand disposed of. (V. Ramasubramanian)Chief Justice July 11, 2019(KS) (Anoop Chitkara), Judge