Itta/104/2016 Of The Pr.commissioner Of Income Tax-6 v. Sri. C.radha Krishna Kumar

THE HON’BLE SRI JUSTICE RAMESH RANGANATHANANDTHE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY ITTA.No.104 of 2016 JUDGMENT:(per Hon’ble Sri Justice Ramesh Ranganathan) This appeal, under Section 260-A of the Income Tax Act, 1961(for short “the Act’) , is preferred against the order passed by theIncome Tax Appellate Tribunal, Hyderabad in M.A. No.103/Hyd/2014in ITA.No.295/Hyd/2012 dated 10.12.2014 for the assessment year2008-09. The respondent herein filed M.A.No.103/Hyd/2014 seekingrecall of the order of the Tribunal in ITA.No.295/Hyd/2012 dated07.03.2013 whereby the Tribunal set aside the order passed by theCommissioner of Income Tax (Appeals) on merits. In its order in ITA.No.295 of 2012 dated 07.03.2013 the Tribunalhad noted that the assessee had appeared in person, and had soughtan adjournment but they had required the assessee to argue thematter. After referring to the arguments of the authorisedrepresentative before the Commissioner of Income Tax (Appeals), theTribunal dismissed the appeal filed by the assessee recording that theassessee had also filed written submissions after hearing the appealwhich was kept on record, but had not been admitted and considered. The respondent-assessee filed M.A.No.103/Hyd/2014, underSection 254(2) of the Act, seeking rectification of the earlier orderpassed by the Tribunal. In the order under appeal, the Tribunal notedthat the matter could not be presented satisfactorily before them earlieras the assessee’s representative was not in India, and could notappear before them on the date of hearing; the issue was decidedwithout considering the facts with reference to (i) application of thedecision of the case of Smt. Gousia Begum and others(ITA.No.1024/Hyd/2011); and(ii) entitlement of the petitioner to reliefunder Section 54F as his funds had gone into the construction of abuilding; the written submissions filed by the assessee was also not considered; there were certain errors in the order; and, as the reasonsadvanced by the learned counsel for the assessee were satisfactory,the earlier order was being recalled and the assessee’s appeal wasbeing restored to file. It is evident from the order under appeal that, though theassessee had engaged a counsel to appear on his behalf, his counselwas not in India, and could not, therefore, appear before the Tribunal.The earlier order of the Tribunal also records the assessee’s requestfor adjournment. It also appears from the order passed by the Tribunal,under Section 254(2) of the Act, that the assessee was claimingdeduction under Section 54F of the Act on the ground that funds hadgone into the construction of a building, and as these questionsnecessitated elaborate examination, the Tribunal recalled its earlierorder and restored the appeal to file. The jurisdiction which this Court exercises, under Section 260-Aof the Act, is only on a substantial question of law. The jurisdictionexercised by the Tribunal under Section 254(2) of the Act in recallingits earlier order and restoring the appeal to file, in the facts andcircumstances of the present case as noted hereinabove, does notgive raise to a substantial question of law necessitating interference inthis appeal. The appeal fails and is, accordingly, dismissed. Themiscellaneous petitions pending, if any, shall also stand dismissed.There shall be no order as to costs. _____________________________ RAMESH RANGANATHAN, J Date: 29.06.2016JSU ___________________________________ M. SATYANARAYANA MURTHY, J THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN AND THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY JSU ITTA.No.104 of 2016Date:29.06.2016