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TMI Blog2018 (8) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for allowing the appeal filed before the CIT(A). We find that while dismissing the assessee's appeals, the question which was required to be considered is whether the Tribunal is right in disallowing the claim of agricultural income of the assessee, having failed to appreciate the evidence available on record and traversing beyond the scope of the records and findings given by authorities as also the admission made in the remand report by the Assessing Officer himself. Thus, what was required to be considered, was the effect of the findings given by the authorities more particularly, the admission made in the remand report by the Assessing Officer himself. Thus, a subsidiary substantial question of law, which would arise out of the substantial question of law framed is whether the Revenue was entitled to maintain an appeal as against the order of CIT(A), which itself was based upon a remand report 25.11.2002. If the answer to this subsidiary question of law is answered in favour of the assessee, then the appeal filed by the Revenue before the Tribunal has to be not maintainable in the light of the decisions quoted above. Though such a question was not specifically framed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant carrying on agricultural activity and earning income thereof, whereby the respondent is estopped from maintaining the appeal for inclusion of the said income of the applicant herein. The learned Senior counsel referred to the remand report, dated 25.01.2002 and submitted that the Assessing Officer has clearly stated that treating the entire income as 'non-agricultural' does not appear to be in-order and the Commissioner of Income Tax (Appeals) [CIT(A)], may consider the income as 'agricultural' to extent that he is satisfied and other issues may be decided on merits. Further, it is submitted that the Inspector of Income Tax, Virudhunagar, in his report, dated 30.03.1999, has stated that he made discreet enquiry in and around Devadanam Village with regard to ownership of the agricultural lands to the extent of 36 acres and agricultural operations thereon and all the 36 acres are nanja lands and fertile in nature and the lands are actually owned by K.Dhanushkodi and his son D.Muthukumar and these lands have been leased out to the applicant for a five year term commencing from 23.09.1994. The Inspector of Income Tax forwarded the statements recorded from the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in the case of M.M.Thomas vs. State of Kerala and Anr., Appeal (Civil) No.9663 of 1994, dated 06.01.2000 and it is submitted that if any apparent error is noticed by this Court in respect of any orders passed by it, the High Court has not only the power, but also a duty to correct it. 5. With regard to the jurisdictional issue that the appeal before the Tribunal at the instance of the revenue was not maintainable. Reliance was placed on the decision of the High Court of Bombay in the case of Jivatlal Purtapshi vs. Commissioner of Income Tax - Bombay, [1967] 65 ITR 261(Bom); the decision of the High Court of Punjab Haryana in the case of Banta Singh Kartar Singh vs. CIT Patiala, 125 ITR 239 and the decision of the Kerala High Court in the case of Commissioner of Income Tax vs. Cochin Malabar Estates and Industries Ltd., 180 ITR 152. The learned Senior counsel submitted that as against the judgment in TCA.Nos.819 to 821 of 2010, dated 30.09.2013, the applicant had filed a Special Leave Petition in Special Leave to Appeal C.Nos.10135 - 10137 of 2014, and the said petition was withdrawn on the ground that the applicant will file a review before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther incentives. The High Court answered two substantial questions of law, which arose under Section 260A of the Act, the first question was answered in the negative i.e., in favour of the revenue and against the assessee. However, the second question was answered in the affirmative in favour of the assessee and against the revenue and the appeal was accordingly, disposed of. As against the said judgment, a review petition was filed by the assessee before the very Division Bench. The Division Bench recalled its earlier order observing that the Court did not formulate the substantial questions of law for adjudication before hearing of the appeal on merits, and there can be no escape from the conclusion that hearing of the appeal prior to its admission has to be treated as a hearing on the admission of the appeal in order to determine, if the substantial questions of law, as contended by the applicant, had or had not arisen and it was only upon having formulated the questions of law which, according to the High Court, were the substantial questions of law for adjudication in the appeal that the appeal could or ought to have been heard. Further, the Court observed that as there was om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 319 ITR 368, it was held that Review Petition is maintainable, though there is no provision in the Act empowering the High Court to review its order, such power is available to the High Court, as a Court of record and therefore, the High Court can review its order in exercise of its plenary jurisdiction in order to keep its record correct and clean, particularly when the error is apparent on the face of the record. 12. In the Commissioner of Income Tax, Panaji vs. Automobile Corporation of Goa Ltd., (2017) 11 SCC 315, the Supreme Court relying on the decision in the case of Meghalaya Steels Limited., (supra), held that review would be available in respect of the orders passed under Section 260A of the Act. 13. In the case of M.M.Thomas (supra), the Supreme Court held that the High Court, as a Court of record, has a duty to itself to keep all its records correctly in accordance with law and if any apparent error is noticed by the High Court in respect of any orders passed that the High Court has not only power but also a duty to correct it. In the said case, the decision of the nine Judges Bench of the Supreme Court in the case of Naresh Shridhar Mirajkar Ors., and Ors., v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.01.1999, showing a total income of ₹ 3,09,280/- which comprised income from money lending business and interest from bank deposits. The income return was accepted under Section 143(1) of the Act. A search was conducted by the Central Bureau of Investigation on 19.02.1997, at the applicant's residential premises, as well as bank lockers standing in her name. The Assessing Officer reopened the assessment under Section 147 of the Act and made re-assessment by adding the gifts created to capital account of the applicant and her daughters amounting to ₹ 4,32,921/-; loan of ₹ 2,00,000/- from Mrs.S.Saraswathy and agricultural income of ₹ 4,08,840/- treating it as 'non-agricultural income'. Aggrieved by the said order, the assessee preferred appeal before the CIT(A). The applicant objected to the order of the Assessing Officer stating that she has furnished the details of the goods to the Assessing Officer during the assessment proceedings and no further details could be furnished, as the assessment was taken up only around the limitation period and as such sufficient time was not provided to her. The applicant furnished confirmations by way of affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer, dated 25.11.2002, as well as the report of the Inspector of Income Tax, the CIT(A) held that the action of the Assessing Officer treating the sum of ₹ 4,08,841/-, as 'non-agricultural income' was incorrect. 17. Aggrieved by the orders passed by the CIT (A), the Revenue preferred appeals before the Tribunal. The Tribunal accepted the stand taken by the Revenue and affirmed the findings recorded by the Assessing Officer. The order passed by the Tribunal is verbatim repetition of the findings of the Assessing Officer in its order dated 29.03.2001, passed under Section 143(3) read with Section 147 of the Act. We find that there is no reference to the remand report dated 25.11.2002, which was called for by the CIT(A) based on which the CIT(A) allowed the appeal. To be noted, the Assessing Officer on report being called for, has made a detailed enquiry, and the Inspector of Income Tax has recorded statements from the landowners verified the Revenue records maintained in the office of the VAO and then submitted his remand report. The Tribunal ought to have made an endeavour to examine as to the effect of the remand report, which was the basis for allowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal is a verbatim repetition of the assessment order, dated 29.03.2001. Thus, the Tribunal was required to consider the correctness of the order passed by the CIT(A) and if had been done in a proper prospective, the Tribunal would have noticed that the order allowing the assessee's appeal by the CIT(A) was based on the remand report. If this had been taken note of, the Tribunal would have to consider as to whether the appeal by the Revenue was maintainable before it. In the case of Jivatlal Purtapshi(supra), it was held that the department having agreed to delete the amount from the assessment and having considered the deletion before the Appellate Assistant Commissioner, cannot be aggrieved by that part of the order to enable it to file an appeal before the Tribunal and therefore, such an appeal, neither competent nor capable of being entertained by the Tribunal. 20. In the case of Raman Lal Kamdar vs. CIT, 108 ITR 73, the appeal before the Hon'ble Division Bench of this Court was against the order passed by the ITAT, Bangalore Bench and one of the substantial question of law which was framed for consideration, was whether on the facts and circumstances of the case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal to the Tribunal was incompetent and consequently, it was held that the reference to the Court on the second question said to arise out of order of the Tribunal is also incompetent. In the case of Banta Singh Kartar Singh(supra), a similar question arose in an order under Section 271(1)(c) of the Act. The Division Bench of the High Court of Punjab Haryana, placing reliance on the decision of the Mumbai High Court in Jivatlal Purtapshi (supra), held that an order based on agreement cannot give rise to grievances and the same cannot be agitated in appeal. 21. In Cochin Malabar Estates and Industries Ltd., (supra), one of the question which arose for consideration before the Division Bench of the High Court of Kerala was whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the consent by the assessee will not confer jurisdiction on the Income Tax Officer to pass rectification order under Section 154 of the Act, it was held that the appeal filed by the assessee before the CIT(A) itself is incompetent, since the assessee cannot be considered as a person aggrieved by the order passed under Section 154. 22. In the light of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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