Itxa/874/2013 Of Commissioner Of Income Tax 16 v. Shri Parvez A. Poonawalla

kps IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.874 OF 2013 The Commissioner of Income Tax-16.-Versus-Parvez A. Poonawalla. ..Appellant ..Respondent ........... Mr.A.R.Malhotra with Mr.N.A.Kazi, for the Appellant/ Revenue.Mr.S.E.Dastur, Senior Advocate a/w Mr.Madhur Agarwal and Mr.Atul K. Jasani, for the Respondent. ........... CORAM: S.C. DHARMADHIKARIAND B.P. COLABAWALLA, JJ. DATE :- 09[th] June, 2014 P.C.: 1This Appeal challenges the order passed by the Income Tax Appellate Tribunal on 17.10.2012. The Income Tax Appeal No.6400/Mum/2011 was dismissed by the Tribunal. The Assessment Year in question is 2004-2005. The Revenue had appealed to the Tribunal against the order passed by the Commissioner of Income Tax (Appeals) dated 15.06.2011. 2Mr.Malhotra, learned counsel appearing for the Appellant/ Revenue, would urge that the present Appeal raises a substantial question of law and identical to one framed by us in the Income Tax Appeal No.79/2012. Mr.Malhotra submits that the controversy being identical to that Appeal so also the questions termed as substantial questions of law, 3Mr.Dastur, learned Senior Counsel appearing for the Respondent/ Assessee, would urge that firstly, the Tribunal decided the Appeal in the absence of the Assessee or his Advocate. Secondly, in this Appeal and for the subject Assessment Year the questions of law as framed in the Income Tax Appeal No.79/2012 would not arise for determination and consideration. 4After perusing the order passed by the Tribunal and impugned in this case we are inclined to agree with Mr.Dastur. It is conceded before us that in the subject Assessment Year and in the Appeal before the Tribunal the issue of applicability of Section 56(2)(v) of the Income Tax Act, 1961 which was inserted in the statute book with effect from 01.04.2005 did not arise at all. Concededly the Revenue proceeded on the footing that the receipt in this case was taxable as income from other sources under Section 56(1) of the Income Tax Act, 1961. Today, the argument raised before us by Mr.Malhotra is that this Appeal raises a substantial question of law and particularly with regard to the receipt being casual and non-recurring receipt. We find that though Mr.Malhotra would rely on the memo of appeal filed before the Tribunal by the Revenue, but in the absence of any material to indicate that this ground was indeed pressed before the Tribunal we cannot entertain this Appeal. If there was any doubt or the Tribunal's order suffers from alleged mistake, nothing prevented the Revenue from approaching the Tribunal for having the alleged mistake corrected. The Revenue did not adopt such course. Admittedly, the Assessee was not before the Tribunal when the Appeal was decided by the Tribunal. In such circumstances now to proceed on assumption that the ground that the receipt was casual and non-recurring was pressed and not considered by the Tribunal, will be unfair to the Assessee. It would also mean that this Court entertains an appeal against itxa.874.13.14 an order of the Tribunal on a question termed as a substantial question of law by the Revenue in the absence of any argument or discussion on the same. This course would not be permissible in the given facts and circumstances. More so when there is no assertion forthcoming that such ground was indeed pressed before the Tribunal, but not considered. 5In the light of the above discussion and finding that the Appeal does not raise any substantial question of law which could be said to be identical to one entertained and admitted by us, it is dismissed. There will be no order as to costs. (B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)