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TMI Blog2018 (9) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Miscellaneous Application. We, therefore, dismiss this Miscellaneous Application filed by the assessee being devoid of any merit. Miscellaneous Application filed by the assessee is dismissed. - M.A. No. 118/KOL/2017 - - - Dated:- 23-3-2018 - Shri P.M. Jagtap, Accountant Member And Shri S.S. Viswanethra Ravi, Judicial Member For The Assessee : Shri D.S. Damle, FCA For The Department : Shri Sal long Yaden, Addl . CIT, D.R. ORDER Per Shri P.M. Jagtap, A.M. :- By this Miscellaneous Application, the assessee is seeking rectification of the mistake alleged to have crept in the order of the Tribunal dated June 23, 2017 passed in ITA No. 587/KOL/2012. 2. The assessee in the present case is a Company. In the assessment originally completed under section 143(3)/147 vide an order dated 27.12.2005, the total income of the assessee under the normal provisions of the Act was determined by the Assessing Officer at ₹ 10,78,00,000/-, while the book profit under section 115JA was determined by him at ₹ 8,18,91,021/-. The said assessment was subsequently set aside by the ld. CIT vide an order passed under section 263 and in pursuance of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said preliminary issue raised by the ld. Counsel for the assessee and held that the computation part of book profit under section 115JA, in so far as the assessee s case for the year under consideration was concerned, being a highly debatable issue, was beyond the scope of rectification permissible under section 154. The impugned order of the ld. CIT(Appeals) giving relief to the assessee accordingly was upheld by the Tribunal on the basis of the said decision on the preliminary issue. 4. The ld. Counsel for the assessee submitted that once the Tribunal found that the issue involved in the proceedings under section 154 was highly debatable in nature, then the Tribunal not only should have dismissed the Revenue s appeal, but should have allowed further relief to the assessee by cancelling the Assessing Officer s order passed under section 154 in its totality. He contended that there is thus a mistake in the order of the Tribunal in not cancelling the order of the Assessing Officer passed under section 154 in its entirety and the same being apparent from record is liable to be rectified under section 254(2). Relying on the decision of the Hon ble Gujarat High Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s order passed under section 154 in its totality. The case of the assessee thus is that the Tribunal should have allowed more relief to the assessee than what was allowed by the ld. CIT(Appeals) while allowing the claim made by the assessee as respondent by invoking Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963. In support, the ld. Counsel for the assessee has relied on the decision of the Hon ble Gujarat High Court in the case of Principal CIT vs.- Sun Pharmaceuticals Industries Limited (supra) as well as the decision of the Delhi Bench of this Tribunal in the case of ITO vs.- Smt. Gurinder Kaur (supra). 7. We have carefully perused both the judicial pronouncements cited by the ld. Counsel for the assessee in support of the assessee s case. In the case of Sun Pharmaceuticals Industries Limited (supra), the assessee was a Company registered under the Companies Act and in the reassessment completed in its case, various additions were made by the Assessing Officer. In the appeal filed before the ld. CIT(Appeals), the assessee-company challenged the validity of reopening of assessment and also disputed the various additions made by the Assessing Officer in the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority or the Court and has therefore not filed any appeal against such order, is free to defend the order before the Appellate Forum on all grounds including the ground, which may have been held against him by the lower authority or the Court, whose order is otherwise in his favour. To put the controversy beyond doubt, it was further clarified by the Hon ble Gujarat High Court in paragraph no. 11 of its order that Rule 27 makes it clear that the respondent in appeal before the Tribunal even without filing an appeal can support the order appealed against on any of the grounds decided against him. It was also held that when the order of the Commissioner is at large before the Tribunal, the respondent before the Tribunal would be entitled to defend the order of the Commissioner on all grounds including on grounds held against him by the Commissioner without filing an independent appeal or cross objection. (emphasis supplied) 8. Similarly, in the case of Smt. Gurinder Kaur (supra) cited by the ld. Counsel for the assessee, an appeal was filed by the assessee before the ld. CIT(Appeals) against the order of the Assessing Officer raising several grounds both against the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). It is important to note here that no further or additional relief than what had been allowed by the ld. CIT(Appeals) was sought by the assessee and while meeting the preliminary objection raised by the Department, reliance was not only placed on behalf of the assessee on Rule 27 of the Appellate Tribunal Rules but also on various judicial pronouncements to contend that the assessee was entitled to raise these points. The Tribunal first relied on Rule 27 to hold that it was open to the assessee to raise the question of non-recording of reasons as the respondent in an appeal can support the order appealed against on any of the grounds decided against him, even though he may not have filed an independent appeal or cross objection and then proceeded to consider and decide the case of the assesese even de hors Rule 27 of the Appellate Tribunal Rules. In this regard, reliance was placed by the Tribunal on the various judicial pronouncements cited on behalf of the assesese including the decision of the Hon ble Supreme Court in the case of Hukam Chand Mills Ltd. vs.- CIT [63 ITR 232] to hold that even assuming that Rule 27 of the Appellate Tribunal Rules was not strictly applicable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no appeal validly filed by the assessee before the Tribunal, the assessee invoked Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963. The Tribunal accepted the case made out by the assessee by relying on the said Rule 27 and set aside the order of the ld. CIT(Appeals) in its entirety by restoring the issue relating to the disallowance to the Assessing Officer to the extent of ₹ 28.69 lakhs. The matter was carried by the Revenue to the Hon ble Bombay High Court and Their Lordships held that it was only open to the assessee to support the order of the CIT(Appeals) on any of the grounds decided against him. It was held that the right of the assessee to support the order of the CIT(Appeals) would mean that the assessee would be entitled to urge that the deletion of the disallowance to the extent of ₹ 13.73 lakhs by the CIT(Appeals) was correct and proper and he would not be entitled to avail of the benefit of the provisions of Rule 27 in regard to that part of the order of the CIT(Appeals) which, upon consideration of the evidence, confirmed the disallowance of ₹ 14.96 lakhs made by the Assessing Officer. The order of the Tribunal accordingly was confirmed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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