M/S Chaman Lal Amar Nath & Co v. Commissioner Of Income Tax, Amritsar & Others

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH I.T.A No. 218 of 2008 Date of decision : September 23, 2008 M/S Chaman Lal Amar Nath & Co. ...... Appellant through Mr.Akshay Bhan, Advocate v. Commissioner of Income Tax, Amritsar & others ...... Respondents through Ms.Naveender P.K.Singh, Advocate CORAM : HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This is an appeal by the assessee against the order dated14.9.2007 whereby the Income Tax Appellate Tribunal, Amritsar dismissedits appeal for the assessment year 1988-89. The assessee, a rice sheller, filed return declaring total incomeat Rs.65,785/- claiming a shortage of 19.60%. The Assessing Officerallowed shortage due to moisture, dust, dirt and other foreign material etc.only to the extent of 9.60% and accordingly made disallowance with respectto 10% of the shortage. In appeal, the Commissioner of Income Tax deletedthe addition made by the Assessing Officer. The matter was carried up by I.T.A No. 218 of 2008 the revenue before the Tribunal which, vide its order, Annexure A-3,remitted the matter back to the Commissioner to decide the issue afresh withregard to the reasonable yield rate on the basis of the opinion of an expert. On remand, the Commissioner again upheld the order holdingshortage of yield of 10%. Against the said order, the Assessee preferred anappeal which has been dismissed by the Tribunal vide the impugned order. The Assessee is before us proposing the following questions of law :- “ i)Whether in the facts and circumstances of thepresent case in view of the judgments of the Hon'bleSupreme Court when the department has allowed theclaim of the assessee in previous as well as subsequentyears and also in the case of other assessees carrying onthe same business ? ii)Whether in the facts and circumstances of thepresent case the impugned orders Annexures A1, A4 andA5 are legally sustainable in the eyes of law when thedepartment has allowed the deduction in various othersimilar cases and denying the same deduction to theassessee ? While arguing the matter Mr.Akshay Bhan, learned counsel forthe appellant, has mainly assailed the action of the Tribunal in not holdingthe Commissioner to the earlier direction whereby the matter had beenremitted back for a finding on the basis of the opinion of an expert.According to the learned counsel, the earlier order of the Tribunal wasbinding and violation thereof by the Commissioner and the subsequent I.T.A No. 218 of 2008 inaction of the Tribunal on this score is completely illegal. A perusal of the order of the Commissioner and that of theTribunal reveals that the question of fact regarding reasonable yield hasbeen considered by both the authorities on various parameters. As regardsthe argument regarding the infraction of the remand order, in our opinion, itwas for the Tribunal to take a decision regarding the effect of the infractionof the condition of taking the opinion of an expert. In the present case, theTribunal has satisfied itself that the conclusion regarding the yield arrived atby the Commissioner could not have been held to be erroneous. In anycase, the said order of remand or the conditions thereof would not bind thisCourt. In Jasraj Inder Singh vs Hemraj Multanchand, 1977(2) SCC 155,the Hon'ble Supreme Court held as follows :- A perusal of the order of the Commissioner and that of theTribunal reveals that the question of fact regarding reasonable yield hasbeen considered by both the authorities on various parameters. As regardsthe argument regarding the infraction of the remand order, in our opinion, itwas for the Tribunal to take a decision regarding the effect of the infractionof the condition of taking the opinion of an expert. In the present case, theTribunal has satisfied itself that the conclusion regarding the yield arrived atby the Commissioner could not have been held to be erroneous. In anycase, the said order of remand or the conditions thereof would not bind thisCourt. In Jasraj Inder Singh vs Hemraj Multanchand, 1977(2) SCC 155,the Hon'ble Supreme Court held as follows :- “ In an appeal against the High Court's finding theSupreme Court is not bound by what the High Courtmight have held in its remand order. It is true that asubordinate Court is bound by the direction of the HighCourt. It is equally true that the same High Court,hearing the matter on a second occasion or any otherCourt of coordinate authority hearing the matter cannotdiscard the earlier holding, but a finding in a remandorder cannot bind a higher Court when it hears the matterin appeal.” In view of the above mentioned parameters, we have examined the two judgments and find that no error can be pointed out in theassessment of reasonable yield. In this view of the matter, we are unable tohold that any substantial question of law arises in this Appeal. Consequently, the present appeal is dismissed with, however, no order as tocosts. ( AJAY TEWARI ) JUDGE September 16, 2008'kk' ( ADARSH KUMAR GOEL ) JUDGE