Rajendra Singh Yadav v. Income Tax Officer, Bhilwara

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. Income Tax Appeal No. 23/2010 Rajendra Singh Yadav versus Income Tax Officer, Bhilwara Date of Order : 14[th] May, 2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAINHON'BLE MR. JUSTICE ARUN BHANSALI Mr. Anjay Kothari, for the appellant.Mr. K.K. Bissa, for the respondent. Heard the learned counsel for the parties. 2.Thisappeal was admitted on the following substantial question of law by this Court on 5[th] July, 2010:- “(a) Whether the provisions of Section 44 AE of Income Tax Act are applicable to the facts of this case and if so, whether the assessee is entitled to take benefit of the said provisions for the assessment year under consideration?” 3.The present appeal relates to the Assessment Year 2003-04. The assessee was doing business of transportation through his own trucks and hiring trucks by charging commission. He was having 13 trucks, however, out of 13 trucks, he claimed to have gifted 7 trucks on 1.4.2002. The assessing authority held that at least on 1.4.2002, the assessee was owner of 13 trucks and consequently, passed the assessment order. Thereafter, appeal was preferred, which was dismissed by the Appellate Authority. Assessee, thereafter, preferred an appeal before the Income Tax Appellate Tribunal, which specifically recorded a finding that assessee is owner of 13 trucks and this is purely a finding of fact recorded by the Assessing Officer and the Appellate Authority and the said finding has not been challenged by the assessee. 4.Learned counsel for the appellant submitted that the finding of Appellate Authority as well as Assessing Officer that assessee is owner of 13 trucks was challenged as the said point was taken in written submission and the said observation made by Appellate Tribunal is not correct. Admittedly no affidavit has been filed by the arguing counsel, who argued the appeal before the Income Tax Appellate Authority that he argued and challenged the finding of fact in this regard before the Appellate Tribunal. 5.Facing with the aforesaid situation, learned counsel for the appellant made a prayer that he may be permitted to withdraw this appeal with liberty to file an application for rectification of the order before the Income Tax Appellate Tribunal. 6.Learned counsel appearing for the Revenue has not objection to it. 7.In view of statement of the learned counsel for the appellant, the appeal is dismissed as withdrawn with liberty as prayed for. It is needless to mention that in case, any adverse order is passed against the appellant, he is always at liberty to challenge the same, in accordance with law. (Arun Bhansali),J. (Narendra Kumar Jain),J. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” Anil Makawana Jr. P.A.