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TMI Blog2012 (10) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2009 - - - Dated:- 3-10-2012 - Sunil Ambwani, And Aditya Nath Mittal, JJ. Petitioner Counsel :- S.C./A.N. Mahajan 1. We have heard Shri Bharat Ji Agarwal, Senior Advocate assisted by Shri Dhananjai Awasthi for the revenue. Shri Ashish Bansal appears for the respondent-assessee. 2. This Income Tax Appeal under Section 260-A of the Income Tax Act, 1961 arises out of an order passed by the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow dated 13.2.2009 in M.A. No. 85 (Luc)/2008 arising out of Income Tax Appeal No. 175 (Luc)/2008 for the assessment year 2003-04. 3. The Income Tax Appellate Tribunal allowed the misc. application and recalled its order dated 30.5.2008. In the opening paragraph of the order dated 30.5.2008, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter in paragraph-17 relied upon DCIT v. Super Tanner (India) Ltd 274 ITR 538 and in para-18 recorded the findings that disallowance was made in part and in the case before the Tribunal, there was no part disallowance and genuineness of the expenditure was not said to be proved; thus it cannot be said that the decision is identical to the facts of the case. In para-19 the Tribunal confirmed the disallowance towards secret commission of Rs.4,18,438/-. The appeal was allowed in part. 5. The assessee filed a miscellaneous application to recall the order of the Tribunal dated 30.5.2008 under Section 254 (2) of the Act alleging that the Tribunal did not consider and decide ground nos. 7, 8 and 9 taken by the assessee. By these grounds t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on 13.2.2009." 7. The department has filed this appeal on the following substantial questions of law:- "(1) Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in going beyond the scope of its powers in adjudicating on an issue which was neither pleaded nor raised before it in the grounds filed by the assessee in its Misc. Application? (2) Whether the Tribunal while giving a finding in respect of Ground No. 2 has completely lost sight of the fact that non-adjudication of Ground No. 2 was not the grievance of the assessee when it moved the Misc. Application." 8. Shri Bharat Ji Agarwal, appearing for the revenue submits that the recall application was not maintainable to decide the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts were rejected. The ITO had assessed and fixed income of assessee at Rs. 16,41,800/- i.e. 69.33% of gross receipts without rejecting the account books u/s 145 (3) when there was no cash credit in account books, without considering all the facts and laws cited by assessee. On appeal the CIT (A) fixed total income at Rs. 13,72,337/- (57.95%) against the total receipts of Rs. 23,67,949/- and thus both the decisions of lower authorities are unlawful and arbitrary. 10. Shri Ashish Bansal submits that ground nos. 7, 8 and 9 were in fact consolidated in ground no.2 and thus the Tribunal did not commit any mistake in finding that since ground no.2 has not been adjudicated. The Tribunal recalled the order to the limited extent. 11. The power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The judicial or quasi judicial authority is required to consider and decide only those grounds, which were pressed before it. It is always advisable to say at the end of the judgment/order, whether any other ground was pressed. The absence of such recital, however, has to be understood in the sense that no other ground was pressed. 14. In the present case, we find that there is no indication in the order dated 30.5.2008 that any ground, other than the grounds considered by the Tribunal, was pressed. The reference to ground nos. 7, 8 and 9 or ground no.2, which is substance of ground nos. 7, 8 and 9, the applicant virtually wanted the rehearing of the appeal by the Tribunal. The Tribunal committed gross error of law in recalling its order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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