Per : R.s. Jha, Acting C.j v. In View Of The Decision Rendered By The Supreme Courtin Raj Kumar Shivhare (Supra) The Objection Regardingmaintainability Is Rejected And Present Appeals Are He

HIGH COURT OF MADHYA PRADESH : JABALPUR(Division Bench) I.T.A. No.102/2019 Sir Syed Educational & Social Welfare Society, Bhopal-Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.103/2019 Sir Syed Educational & Social Welfare Society, Bhopal-Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.104/2019 Sir Syed Educational & Social Welfare Society, Bhopal-Versus--Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.105/2019 Sir Syed Educational & Social Welfare Society, Bhopal-Versus--Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.106/2019 Sir Syed Educational & Siocial Welfare Society, Bhopal-Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.107/2019 Sir Syed Educational & Social Welfare Society, Bhopal-Versus--Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.108/2019 Sir Syed Educational & Social Welfare Society, Bhopal-Versus- Assistant Commissioner of Income Tax-1, Bhopal ---------------------------------------------------------------------------------- Shri Sumit Nema, Senior Advocate with Shri Mukesh Agrawal, Advocate for the appellant. Shri Sanjay Lal, Advocate for the respondent. ---------------------------------------------------------------------------------- CORAM :Hon'ble Shri Justice R.S. Jha, Acting Chief Justice Hon’ble Shri Justice Vijay Kumar Shukla, Judge O R D E R(Jabalpur, dtd.21.8.2019) -Per : R.S. Jha, Acting C.J. In these appeals filed under Section 260-A of theIncome Tax Act, 1961 [hereinafter referred to as “the Act”] anobjection regarding maintainability of the appeals against the orderpassed by the Income Tax Appellate Tribunal, Indore [for short“The Tribunal”] rejecting an application filed under Rule 27 of theIncome Tax Appellate Tribunal Rules, 1963 [for brevity “theRules”], is raised by the respondent. Having heard the learnedcounsel for the parties, we do not find any substance in the same, inview of the decision of the Supreme Court rendered in the case ofRaj Kumar Shivhare vs. Assistant Director, Directorate ofEnforcement and another, (2010) 4 SCC 772, wherein the exactterms mentioned in Section 260-A of the Act, namely, “any orderpassed” were considered and interpreted by the Supreme Court withreference to the provisions of Section 35 of the Foreign ExchangeManagement Act, 1999. The Supreme Court while interpreting the words “any decision or order of the appellate authority” has heldthat the word “any” would mean “all” orders passed by theAppellate Authority. The Supreme Court has held that as the wordsof the provision providing for appeal are wide enough to include allorders, a litigant cannot be denied the right to appeal conferred bythe statutory provision, subject to the conditions mentioned therein,namely, that a substantial question of law arises for adjudicationfrom the order in appeal. 2.In view of the decision rendered by the Supreme Courtin Raj Kumar Shivhare (supra) the objection regardingmaintainability is rejected and present appeals are held to bemaintainable. 3.We have also heard the learned counsel appearing forthe parties on merits. On hearing of the parties, we are of theconsidered opinion that the following substantial question arises foradjudication in these appeals : “Whether the finding of the ITAT that theassessee under garb of the present application istrying to agitate a new ground which was not beforethe Ld. CIT(A) is perverse and contrary to recordinasmuch as ground No.3 raised before CIT(A) wasvery much in respect of validity of proceedings u/s153C and thus no new ground was being raised forthe first time before the ITAT ?” 2.In view of the decision rendered by the Supreme Courtin Raj Kumar Shivhare (supra) the objection regardingmaintainability is rejected and present appeals are held to bemaintainable. 3.We have also heard the learned counsel appearing forthe parties on merits. On hearing of the parties, we are of theconsidered opinion that the following substantial question arises foradjudication in these appeals : “Whether the finding of the ITAT that theassessee under garb of the present application istrying to agitate a new ground which was not beforethe Ld. CIT(A) is perverse and contrary to recordinasmuch as ground No.3 raised before CIT(A) wasvery much in respect of validity of proceedings u/s153C and thus no new ground was being raised forthe first time before the ITAT ?” 4.With the consent of the parties the matter is consideredand decided on merits. It is submitted by the learned senior counselfor the appellant that the CIT(A) in paras 3.1 and 3.2 of its order,dated 30-8-2012, has apparently drawn an adverse inference againstthe appellant under Section 153-C of the Act, on the basis of certainpapers which were seized from some other individuals and not theassessee. 5.The learned senior counsel for the appellant has alsotaken this Court through the application filed by the assessee underRule 27 of the Rules, wherein the assessee has clearly stated that heproposes to assail the findings recorded by the CIT(A) on thegrounds No.3 and 4, which have been decided against the assesseee.It is submitted that in such circumstances, it is manifestly clear thatthe appellant has raised specific grounds to assail the findingsrecorded by the CIT(A) in the application filed under Rule 27 of theRules, but the Tribunal by the impugned order dated 8-5-2019 hasrejected the application by simply stating that the learned SeniorCounsel appearing for the assessee could not point out as to what arethe grounds decided against the assessee. It is submitted by thelearned senior counsel that when the grounds were specificallymentioned in the application under Rule 27 of the Rules and wereapparently evident from the finding recorded in respect of Grounds No.3 and 4 by CIT(A), rejection of the application withoutconsidering the same amounts to perversity, giving rise to asubstantial question of law for adjudication. The learned seniorcounsel for the appellant submits that in such circumstances, theimpugned order passed by the Tribunal deserves to be set aside andthe matter deserves to be remitted back for a detailed decision on theapplication under Rule 27 of the Rules filed by the appellants onmerits. 6.The learned counsel appearing for the respondent-revenue submitted that a bare perusal of the impugned order passedby the Tribunal per se makes it clear that at the time of argumentsthe learned senior counsel appearing for the assessee failed to pointout any ground in the order passed by the CIT(A) that was decidedagainst the assessee. It is submitted that in the absence of theassessee specifically stating and pointing out the grounds that weredecided against the assessee, no fault can be found with the orderpassed by the Tribunal rejecting the application. 7.We have heard the learned counsel for the parties atlength and perused the order passed by the CIT(A), dated 30-8-2012; the application filed by the assessee under Rule 27 of theRules as well as the impugned order passed by the Tribunal rejecting 7.We have heard the learned counsel for the parties atlength and perused the order passed by the CIT(A), dated 30-8-2012; the application filed by the assessee under Rule 27 of theRules as well as the impugned order passed by the Tribunal rejecting the application. From a perusal of the aforesaid three documents, itis apparent that the appellant had raised clear and specific groundsin the application filed under Rule 27 of the Rules in respect of thefinding recorded by the CIT(A) as regards the ground Nos.3 and 4,and the conclusion recorded against the assessee with the aid ofSection 153-C of the Act. It is also evident that the assessee hadraised an issue regarding consideration of certain documents whichhad never been seized from the assessee but were considered by theauthorities. It is also evident from a perusal of the order of theCIT(A) and the application filed under Rule 27 of the Rules thatthese grounds were sought to be raised by the appellant before theTribunal. 8.In such circumstances, we are of the considered opinionthat the impugned order passed by the Tribunal suffers fromperversity, as the Tribunal without considering the aforesaid issueshas dismissed the application filed by the appellant under Rule 27 ofthe Rules by merely stating that the counsel for the assessee couldnot point out the grounds that were decided against him. More so,when the grounds raised by the appellant were manifestly apparentfrom the order passed by the CIT(A). 9.In such circumstances, the substantial question of lawframed by the appellant is answered by this Court in favour of theassessee. The impugned order passed by the Tribunal, dated 8-5-2019 is set aside and the matter is remitted back to the Tribunal forconsidering and deciding the application under Rule 27 of the Rulesfiled by the appellants on merits, by taking into consideration theaverments made therein as well as the decision of the CIT(A) on theissues decided against the appellant. 10.With the aforesaid observations and directions, theappeals stand allowed and disposed of. (R.S. Jha) (Vijay Kumar Shukla) Acting Chief Justice Judge ac. Digitally signed by AJAY KUMAR CHATURVEDI Date: 2019.08.26 17:38:23 +05'30'