2022 (6) TMI 1421 - HC - Income Tax

Revision u/s 263 - second round of litigation - non-service of notice as agitated in first round of litigation - HC earlier 2018 (5) TMI 701 - CALCUTTA HIGH COURT allowed the appeal on the ground that the contention advanced by the assessee with regard to non-service of notice was not specifically considered by the tribunal and order passed by the tribunal was set aside and the matter was remanded to the tribunal to re-consider the issue - HELD THAT - On remand the tribunal has taken up the matter and we find that factual exercise had been done by the tribunal and all the records placed by the department were considered and the tribunal was satisfied that there has been gross violation of principles of natural justice. Accordingly the appeal filed by the assessee was allowed. The revenue has challenged this order by filing the present appeal and from the memorandum of grounds we find that the revenue seeks to convert this Court as if it is a second appellate Court over the findings of the tribunal. The present appeal being one under Section 260A of the Act what is required to be seen is as to whether any substantial question of law arises for consideration and the jurisdiction of this Court is not to reappreciate the factual conclusion arrived at by the tribunal. As pointed out earlier the tribunal after the matter was remanded has done an elaborate factual exercise and decided in favour of the assessee. Thus we find that there is no question of law much less substantial question of law arises for consideration in this appeal. Decided against revenue.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Interpretation of substantial questions of law under Section 260A of the Income Tax Act, 1961.

Issue 1: Condonation of Delay in Filing the Appeal:

The appeal filed by the revenue was found to be time-barred due to a delay of 603 days. The respondent/assessee stated that the delay was not explained adequately. The department filed an affidavit-in-reply, but the court noted that the explanation provided was unsatisfactory. Despite the lack of a satisfactory explanation, the court considered the appeal as a second round of litigation. The court decided to exercise discretion and condoned the delay in filing the appeal, emphasizing the need to examine if any substantial question of law arose for consideration. Consequently, the application for condonation of delay was allowed.

Issue 2: Interpretation of Substantial Questions of Law under Section 260A:

The appeal under Section 260A of the Income Tax Act, 1961 was directed against an order passed by the Income Tax Appellate Tribunal for the assessment year 2008-09. The revenue raised substantial questions of law regarding the tribunal's decision on the Commissioner of Income Tax's order under Section 263 of the Act. The court observed that the matter had already undergone a first round of litigation, where the tribunal had remanded the case to consider issues related to the notice served to the assessee. Upon reevaluation, the tribunal found a violation of natural justice and ruled in favor of the assessee. The revenue challenged this decision, seeking to convert the High Court into a second appellate court. However, the court clarified that its jurisdiction was to determine if any substantial question of law existed, not to reassess factual conclusions made by the tribunal. Given that the tribunal had thoroughly examined the matter and decided in favor of the assessee, the court concluded that no substantial question of law arose for consideration. Consequently, the appeal was dismissed.

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