Txa/44/2015 Of M/S.chowgule Brothers Private Limited v. Assistant Commissioner Of Income Tax, Circle

1 txa44-15 IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 44 OF 2015 M/s. Chowgule Brothers Private Limitedas Successor to M/s. Chowgule Brothers, Chowgule House, Mormugao Harbour, Goa. V/s. …...... Appellant. 1. Assistant Commissioner of Income Tax,Circle 2, Margao, Goa. 2. Union of India, through the Secretary (Revenue), Ministry of Finance, North Block, New Delhi. …....... Respondents. Mr. Mihir Naniwadekar, and Mr. Purushottam R. Karpe, Advocates forthe appellant. Ms. Asha Desai, Advocate for the respondents. CORAM :- F.M. REIS & K.L. WADANE, JJ. Date : - 21 October 2015. ORAL JUDGMENT : (PER F.M. REIS, J.) Heard Mr. Mihir Naniwadekar, learned Counsel appearing for the appellant and Ms. Asha Desai, learned Counsel appearing for 2 txa44-15 the respondents. 2. Admit, on the following substantial question of law : Whether in the facts and circumstances of the case, inlaw and on merits, the ITAT erred in setting aside theorder of the CIT(A) and at the same time disallowing theappellant's claim under Section 36(1)(vii) of the IncomeTax Act, 1961 ? 3. Heard forthwith with the consent of the learned Counsel.Learned Counsel appearing for the respondents waives notice. 4. Mr. Mihir Naniwadekar, learned Counsel appearing for theappellant has pointed out that in the first round of disptue with regardto the subject income of the appellant, the fact finding Authority hascome to the conclusion that the disputed amount was not actuallyreceived by the appellant, nevertheless, the learned Tribunal, whilstpassing the impugned order dated 15/1/2015, has taken a view thatsuch amount was actually received by the appellant. The learnedCounsel further points out that there is no material on record to come tosuch a conclusion and the finding to that effect is based on noevidence and consequently, is a perverse finding of fact. The learnedCounsel further points out that as the impugned order passed by the 3 txa44-15 learned Tribunal stands vitiated on that count, the impugned orderdeserves to be quashed and set aside and the matter be remanded to thelearned Tribunal to examine the appeal preferred by theRespondent/Revenue afresh, in accordance with law. 5.On the other hand, Ms. Desai, learned Counsel appearingfor the Revenue/Respondent, has pointed out that the appellant has alsofiled a miscellaneous application seeking rectification of the impugnedorder and, as such, the matter would be re-examined by the Tribunal,on such aspect, in accordance with law. The learned Counsel, however,points out that the material on which the learned Tribunal has based itsfinding that the amount was actually received by the appellant has notbeen spelt out in the impugned order. The learned Counsel furtherpoints out that as the miscellaneous application is pending before theTribunal, the matter may be remanded to the Tribunal to decide theappeal preferred by the Revenue afresh, in accordance with law. 6.Without going into the merits of the rival contentions,considering the contentions raised by both the learned Counsel referredto herein above, we find it appropriate, in the interest of justice toquash and set aside the impugned Order dated 15/1/2015 passed by the 4 txa44-15 learned Tribunal and remand the matter to the Tribunal to decide theappeal preferred by the Revenue/Respondent afresh, after hearing theparties, in accordance with law. The substantial question of law isanswered accordingly. 7.In view of the above, we pass the following Order : (I)The impugned Order dated 15/1/2015 passed by theIncome Tax Appellate Tribunal, Panaji in ITA Nos. 14 & 15/PNJ/2014is quashed and set aside. (II) Income Tax Appeals No. 14 & 15/PNJ/2014, for theAssessment Years 2000-01 & 2001-02 are restored to the file of thelearned Tribunal. (III)The learned Tribunal shall, accordingly, dispose of the said 4 txa44-15 learned Tribunal and remand the matter to the Tribunal to decide theappeal preferred by the Revenue/Respondent afresh, after hearing theparties, in accordance with law. The substantial question of law isanswered accordingly. 7.In view of the above, we pass the following Order : (I)The impugned Order dated 15/1/2015 passed by theIncome Tax Appellate Tribunal, Panaji in ITA Nos. 14 & 15/PNJ/2014is quashed and set aside. (II) Income Tax Appeals No. 14 & 15/PNJ/2014, for theAssessment Years 2000-01 & 2001-02 are restored to the file of thelearned Tribunal. (III)The learned Tribunal shall, accordingly, dispose of the said appeals afresh, after hearing the parties, in accordance with law. (IV)All the contentions of both the parties, on merits, are left open. (V)The appeal stands disposed of accordingly. K.L. WADANE, J. F.M. REIS, J. ssm.