Mrs. Natalina Vaz,Age 47 Years, Indian National v. The Commissioner Of Income Tax

IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NOS.31, 32, 33, 34, 35 & 36 OF 2017 Mrs. Natalina Vaz,Age 47 years, Indian National,Residing at Bunglow No. 4,Models Meridien,Marine Road, Caranzalem,Ilhas, Goa.PAN NO. Versus 1. The Commissioner of Income Tax, Central Circle, Bangalore. 2. The Assistant Commissioner of Income Tax, Central Circle, Panaji, Goa. ... Appellant. 3. The Principle Commissioner of Income, Panaji, Goa. ... Respondents. WITH TAX APPEAL NOS.37, 38, 39, 40, 41 & 42 OF 2017 Mrs. Vanda AfonsoAge 48 years, Indian National,Residing at H. No. E- 374,Tivai Waddo, Calangute Bardez, Goa.PAN NO. Versus 1. The Commissioner of Income Tax, Central Circle, Bangalore. ... Appellant. 2. The Assistant Commissioner of Income Tax, Central Circle, Panaji, Goa. 3. The Principle Commissioner of Income, Panaji, Goa. ... Respondents. Mr. P. Pardiwala, Senior Advocate with Mr. J. Sanghavi, and Mr. H. D. Naik, Advocates for the Appellants-Assessees. Ms. S. Linhares, Standing Counsel for the Respondents-Revenue. Coram:- M. S. SONAK & SMT. M. S. JAWALKAR, JJ. stReserved on:- 31March 2021Pronounced on : 5[th] April 2021 JUDGMENT ( Per M. S. Sonak, J) Today, we have disposed of the companion appeals being TaxAppeal Nos. 19 of 2017 to 30 of 2017, which were instituted by thespouses of the Appellants/assessees. 2. The action of the Revenue against the present Appellants/assesses was based upon the assessment made against their spouses byresort to the provisions of Section 153C of the IT Act. Now that we haveset aside the impugned judgment and order in the connected appealsinstituted by the spouses, based on the same reasoning, the impugnedjudgments and orders in these matters will also have to be set aside andthe matters will have to be remanded to the ITAT for fresh disposal ofthe appeals. In fact, the ITAT had disposed of the revenue’s appealsagainst the present appellants/assesses and their spouses by a commonjudgment and order. 3.Mr. Pardiwala, learned Senior Advocate for the assessees,pointed out that in the present case yet another issue which goes to theroot of the jurisdiction arises and the same will have to be considered bythe ITAT irrespective of whether or not any cross-objections were filedby the Appellants/assessees or not. 4.Mr. Pardiwala submits that the action, in this case, has beentaken by resort to the provisions of Section 154 of the IT Act concerningthe rectification of mistake. He submits that in the present matters therewas no order made by the Assessing Officer assessing returns of incomefiled by the Appellants/assessees. He submits that the powers underSection 154 can only be exercised to rectify the mistake apparent fromthe records in any order made under the provisions of the IT Act or toamend any intimation or deemed intimation referred to in clauses (b),(c) and (d) of Section 154(1) of the IT Act. He submits that in theabsence of any order or intimation, no powers under Section 154 couldat all have been exercised by the Revenue. 5.Mr. Pardiwala submits that even if it is held that veryacceptance of returns filed by the Appellants/assessees is to be treated assome kind of order then, the bar of limitation provided under Section154(7) will be attracted. He submits that the rectification orders havebeen made way beyond the period of four years from the date of suchalleged orders and therefore, the same are ex facie barred. The record indicates that these issues were sought to be raised by the Appellants/assessees by filing cross-objections before theITAT. However, the ITAT had refused to condone the delay of 248 daysin filing the cross-objections and therefore these contentions were noteven considered by the ITAT. 5.Mr. Pardiwala submits that even if it is held that veryacceptance of returns filed by the Appellants/assessees is to be treated assome kind of order then, the bar of limitation provided under Section154(7) will be attracted. He submits that the rectification orders havebeen made way beyond the period of four years from the date of suchalleged orders and therefore, the same are ex facie barred. The record indicates that these issues were sought to be raised by the Appellants/assessees by filing cross-objections before theITAT. However, the ITAT had refused to condone the delay of 248 daysin filing the cross-objections and therefore these contentions were noteven considered by the ITAT. 7.By following the reasoning in the companion appeals, wehold that the Appellants/assessees did not have to file any cross-objections to raise the aforesaid jurisdictional issue and support theorders of CIT (Appeals) which had been impugned before the ITAT. Inany case, by applying the same reasoning as was applied in the connectedappeals, we hold that there was sufficient cause shown to condone thedelay of 248 days in instituting the cross-objections. As noted earlier, thecause shown was identical and even the reasoning for not accepting suchcause was also identical. 8.Therefore, upon remand the ITAT will have to permit theAppellants/assessees to urge the aforesaid issues, together with the issuerelating to compliance with the jurisdictional parameters before anyaction under Section 153C came to be initiated against the spouses ofthe Appellants/assessees. In this case, the action against theAppellants/assessees is premised on the liability of their spouses and theprovisions of Section 5A of the IT Act, which are peculiar to the State ofGoa. 9.Accordingly, the substantial question of law No.4 as also theadditional substantial question of law is answered in favor of the Appellants/assessees. The impugned judgment and orders made by theITAT are hereby set aside and the matters are remanded to the ITAT foradjudication of the appeals instituted by the Revenue, in accordance withlaw and on their own merits. In such appeals, by applying our reasoningin the connected appeals, even the present Appellants/assessees are to bepermitted to raise the aforesaid jurisdictional issue in the context ofprovisions of Sections 153C and 154 of the IT Act. All contentions ofboth parties are expressly kept open. 10.The parties to now appear before the ITAT on 26th April2021 at 11.00 a.m. and file authenticated copy of this order. We requestthe ITAT to dispose of such appeals as expeditiously as possible bygranting a full opportunity to both the assessees as well as the Revenue. 11.These appeals are disposed of in the aforesaid terms.However, in the facts and circumstances of the present case, there shall beno order as to costs. 12.disposed of in the aforesaid terms. The Misc. Civil Applications, if any, pending are also SMT. M.S. JAWALKAR, J. M.S. SONAK, J.