Ita/14/2000 Of India Carbon Ltd v. Commissioner Of Income Tax And A

ITA 14/2000BEFOREHON’BLE THE CHIEF JUSTICE MR. A.M. SAPREHON’BLE MR. JUSTICE A.K. GOSWAMI (Sapre, CJ) Heard Dr. A.K. Saraf, learned senior counsel for the appellant and Mr S Sarma, learned counsel for the respondents.The decision rendered in this appeal shall also govern disposal of the connected appeal being ITA 13/2000 because both these appeals are filed by the assessee and involve common question of law except the difference being that of the assessment year. This is an appeal filed by the assessee under Section 260A of the IncomeTax Act against the order dated 25.9.2000 passed by the Income Tax Appellate Tribunal, Gauhati Bench, Guwahati (for short, hereinafter called ’the Tribunal’) in ITA 118/Gau/1992 in respect of assessment year 1988-89.This appeal was admitted for final hearing on 1.6.2001 to answer the following three substantial questions of law arising in the appeal : �(1) Whether the Income Tax Appellate Tribunal had not acted arbitrarily and illegally in not following the judgment and order of the jurisdictional High Court on the same issue in respect of the appellate company itself in respect of the preceding year whereby this Hon’ble Court deleted the additions made to the income of the assessee u/s 43-B of the Act? (2) Whether the Income Tax Appellate Tribunal constituting the same Bench was legally justified in passing two contrary orders in respect of two different assessment years of the appellate company on the same issue when all the appeals were heard together on the same day and the judgment was reserved thereon ? (3) Whether the Income Tax Appellate Tribunal has not exceeded its jurisdiction in going into the issues not arising out of the order of the Commissioner of Income Tax (Appeals) and which were not the subject matter of appeal before the Income-Tax Appellate Tribunal ? � At the very outset, both the learned counsel appearing for the parties brought to our notice that the questions framed in this appeal referred supra stand already answered by this Court in ITA 13/2001 filed by this very assessee which was decided on 22.5.2003 (Commissioner of Income Tax -vs- India Carbon Ltd.),(2003) 262 ITR 327 (Gau), wherein this Court while dismissing the appeal filed by the Revenue affirmed the order passed by the Tribunal which had decided the issue in favour of the assessee. In other words, the only difference in this case and ITA 13/2001 is that this appeal is filed by the assessee whereas ITA 13/2001 was filed by the Revenue, but it was in relation to the same question which is the subject matter of both these appeals. Since in this case, the issue was decided against the assessee by the Tribunal whereas in the earlier case (ITA 13/2001) the same issue was decided by the Tribunal in favour of the assessee and hence the Revenue was required to file an appeal questioning the legality and correctness of the order of the Tribunal in thatcase, which as mentioned above, was upheld by this Court by dismissing the Revenue’s appeal. Without, therefore, burdening our order by mentioning the facts in detail and suffice it to say, this appeal also therefore deserves to be allowed and is accordingly allowed by answering the questions in favour of the assessee and against the Revenue. As a result, the impugned order passed by the Tribunal in so far as it relates to the issue of Section 43-B is concerned is set aside.No cost.