`Honourable Mr.justice v. M. Sahai Honourable Mr.justice N.v. Anjaria`

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 522 of 2011 For Approval and Signature: HONOURABLE MR.JUSTICE V. M. SAHAIHONOURABLE MR.JUSTICE N.V. ANJARIA =========================================================1[Whether Reporters of Local Papers may be allowed ]to see the judgment ?1[Whether Reporters of Local Papers may be allowed ]to see the judgment ? 2To be referred to the Reporter or not ? 3[Whether their Lordships wish to see the fair copy ]of the judgment ? Whether this case involves a substantial question of law as to the interpretation of the 4constitution of India, 1950 or any order made thereunder ? 5[Whether it is to be circulated to the civil judge ]?? ========================================================= COMMISSIONER OF INCOME TAX-III - Appellant(s)Versus PRABHUDAS KISHORDAS TOBACCO PRODUCTS PVT LTD – Opponent(s) =========================================================Appearance :MS PAURAMI B SHETHfor Appellant(s) : 1,None for Opponent(s) : 1, ========================================================= CORAM :HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE N.V. ANJARIA ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) 1.The present Appeal by the Revenue preferred under section 260-A of the Income Tax Act, 1961 is directed against the order dated 30.09.2010 of the Income Tax Appellate Tribunal, Ahmedabad Bench 'C' in ITA No. 1952 of 2008. 1.1Following two questions are raised by the appellant proposing them as substantial questions of law. “[1]Whether the Appellate Tribunal is right in law and on facts in setting-aside the issue relating to disallowance made u/s 14A of the Act?”setting-aside the issue relating to disallowance made u/s 14A of the Act?” [2]Whether the Appellate Tribunal is right in law and on facts in deleting the disallowance of Rs. 2,28,94,900/- made u/s 40A(2)(b) of the act?”deleting the disallowance of Rs. 2,28,94,900/- made u/s 40A(2)(b) of the act?” 2.We heard learned advocate Ms. Paurami Sheth for the appellant. 3.The issue in question no. 1 above relates to the disallowance under section 14A of the Income Tax Act, 1961 (hereinafter referred to as 'the act' for sake of brevity). Out of the total amount of disallowance made by the assessing officer, the CIT(A) sustained part of disallowance of Rs. 36,000 which was based on his own decision in respect of the preceding year. The Tribunal while considering the said aspect was of the view that the CIT(A) did not apply his mind to the facts of the case and his order was not a reasoned order but was a cryptic in nature not satisfying the requirements of section 250(6) of the Act. 4. The Tribunal observed as under : “.....since the Ld. CIT(A) have not passed a speaking order in the case not he had the benefit of the aforesaid decisions, we consider it fair and appropriate to set aside the order of the Ld. CIT(A) and restore the matter to his file for deciding the issues raised in the ground no.1 afresh in accordance with law in the light of various judicial pronouncements, including those referred to above, after allowing sufficient opportunity to both the parties. Needless to say that while redeciding the issue, the learned CIT(A) shall pass a speaking order, keeping in mind, inter alia, the mandate of provisions of section 250(6) of the Act. With these observations, ground no.1 is disposed of.” 4.1Therefore, with regard to disallowance under section 14A of the Act, the Tribunal has only remitted the matter to the CIT(A) requiring him to pass a speaking order in accordance with the provisions 250(6) of the Act. As the matter was remanded for fresh decision at the end of the CIT(A), no substantial question of law arises with regard to question no.1 in the present appeal The appeal fails in so far as the first question is concerned. 4.1Therefore, with regard to disallowance under section 14A of the Act, the Tribunal has only remitted the matter to the CIT(A) requiring him to pass a speaking order in accordance with the provisions 250(6) of the Act. As the matter was remanded for fresh decision at the end of the CIT(A), no substantial question of law arises with regard to question no.1 in the present appeal The appeal fails in so far as the first question is concerned. 5.About question no.2, learned advocate for the appellant fairly stated that the said issue is covered by decision of this Court dated 18.1.2012 in TA 2488 of 2010 in assessee's own case for the assessment year 2002-2003. In that appeal a Division bench of this Court has held that the issue was essentially based on facts which were presented before the adjudicating authority and the reasons were sound and since they were in the realm of facts, they do not raise any substantial question of law. We are in agreement with the reasons recorded by the Division Bench on the said aspect. Since the issue is covered against the Revenue as per the foregoing judgment, the same does not raise any question of law much less than substantial question of law. 6.In view of the above, on both the counts, present appeal fails. No substantial question of law arises for consideration. 7.The appeal is accordingly dismissed. [V.M.SAHAI, J.] [N.V.ANJARIA, J.]