9911796707
TMI BlogMohit Agarwal Vs. CIT (All)- Appeal of assesse was earlier admitted then at the time of further hearing dismissed as based on facts and meritless involving no substantial question of law order is not as per S. 260A and binding precedence and law declared by the Supreme Court.Apparent carelessness in typing of order- judges also need to be careful.X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohit Agarwal Vs. CIT (All)- Appeal of assesse was earlier admitted then at the time of further hearing dismissed as based on facts and meritless involving no substantial question of law order is not as per S. 260A and binding precedence and law declared by the Supreme Court.Apparent carelessness in typing of order- judges also need to be careful. - By: - DEVKUMAR KOTHARI - Income Tax - Dated:- 10-5-2024 - Mohit Agarwal Vs. CIT (All)- Appeal of assesse was earlier admitted then at the time of further hearing dismissed as based on facts and meritless involving no substantial question of law order is not as per S. 260A and binding precedence and law declared by the Supreme Court. Apparent carelessness in typing of order- judges also need to be careful. Case under study: MOHIT AGRAWAL VERSUS THE COMMISSIONER OF INCOME TAX [2024 (5) TMI 353 - ALLAHABAD HIGH COURT] Apparent carelessness in judgment/ order typing: Case representatives are mentioned as follows: For the Appellant : S.K. Garg, Ashish Bansal, Krishna Agarawal For the Respondent : S.C., Praveen Kumar However, in the judgment in para 1 it is mentioned as follows: 1. Heard Shri Ashish Bansal, learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Shri Krishna Agarwal, learned counsel for the revenue. There seems apparent mistake in above para or there may be a mistake in names of representatives mentioned for both sides. Name of Krishna Agarwal is in list of one of representative / counsels of the Appellant but in order name Shri Krishna Agarwal is mentioned as counsel for the revenue. Name of counsel for Respondent as given in the list that is SC Praveen Kumar. This is not at all mentioned in the above para 1 of the judgment. Many may overlook this, but it is important to mention names of representatives/ counsels of parties correctly. In case of such a mistake, appellant can be confused as to whether arguments of his counsel Krishna Agarwal has been wrongly understood as those of respondent and for that reason the judgment was adversely affected. Wherever be the mistake, this deserve to be rectified. And such mention of names and mistakes therein deserves to be checked carefully because such type of mistakes can open another course of litigation. Very old appeal: Appellant / assessee filed the appeal in the year 2007. It is against order dated 22.12.2006 in I.T.A. No.282 (Alld) I of 2006 . This means that it took more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 17 years in disposal of appeal. Author checked on the website of ITAT, but the relevant order of ITAT is not available thereon. On other web search also the same could not be found. Question of law: In view of very old appeal, it seems that the appeal was admitted on the questions of law as proposed by the appellant/ assessee. Those questions of law have not been mentioned in the judgment / order by the High Court. However, as per practice, when an appeal is admitted without any rider or reframing substantial question of law (SQL) by the High Court, it is understood as if SQL , as per petition are accepted as SQL. Though, this will not be strictly as per provisions of S.260A and as per some judgments of the Supreme Court (SC) as discussed later on in which the SC framed SQL or restored the matter to High Court to frame SQL and decide the appeal. Once an appeal was admitted on question of law as proposed, means that those questions of law were considered as Substantial Question of law by the High Court at the time of admitting the appeal. Because otherwise, at the stage of admittance itself, the High Court could have, by speaking order held that appeal is not admitted because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no SQL(substantial question of law). This is as per general understanding of the subject by the author and also as per practice found in reported judgments of High Courts. Therefore, once an appeal has been admitted on certain questions of law, (as mentioned in appeal memo) by the High Court and notices are issued to parties, then those questions can be deemed as admitted as substantial question of law and need to be answered by the High Court. In this regard in paragraph 7( in second part) of the order it is mentioned as follows: Though the appeal had been admitted on the questions of law as proposed , yet, on consideration made above, we find no substantial question of law arises in the present appeal . With due respect, author feels that the order in this regard need reconsideration. As discussed earlier, practical view is that in such circumstances, questions of law as mentioned in the appeal memo are substantial question of law and ready for answer by the High Court, without any specific formulation of SQL. Although, it may not be strictly in terms of S.260A, but this can be considered as practical approach to expedite justice by delivery of judgment. Because, otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in many cases High Courts will be required to pass order afresh and frame SQL by the Court as per the following provision: Sub-section (3) of section 260A reads as follows: (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. As a practical approach, in view of author, this could be viewed in sense that though the High Court is required to formulate substantial question of law. However, once appeal is admitted on substantial question of law as mentioned in the appeal memo, then those questions can be and need to be considered to have been formulated by the High Court, In practical sense, it can be said that the appeal memo, to the extent of substantial questions of law merges with the order of High Court and those questions of law stand so formulated by the High Court. Question of law not find place in order of Allahabad High Court supra: In the order of High Court, question of law formulated in appeal memo by the appellant are also not mentioned. In view of nature of dispute, it is likely that the appellant has challenged the finding of facts by Tribunal as wrong and perverse. It is desirable that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court s order question of law, as per appellant be mentioned in the order. High Court has merely considered facts as found by Tribunal and held that there is no SQL, but order of ITAT is based on facts found. There is nothing mentioned about records and documents filed and relied on by assesse before the Tribunal. There is no mention about any submissions made by counsels. The order is not in accordance with provisions of S.260A The provisions require formulation of Substantial Question of law by High Court, if appeal is admitted. In this case, appeal was admitted and notices were issued, both parties were represented and heard. And at that stage High Court dismissed appeal as not involving any substantial question of law. This is not in accordance with procedure laid down in S.260A and judgments of the Supreme Court in this regard. We can refer to the following judgments: PR. COMMISSIONER OF INCOME TAX, CENTRAL 2 VERSUS M/S A.A. ESTATE PVT. LTD. [2019 (4) TMI 957 - SUPREME COURT] And RYATAR SAHAKARI SAKKARRE KARKHANE NIYAMIT VERSUS ASST. COMMISSIONER OF INCOME TAX-C-1 ORS. [2019 (5) TMI 201 - SUPREME COURT] In case of M/S A.A. ESTATE PVT. LTD. Supra In para 18 to 26 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court observed and held as follows (high lights added): 18. In our view, the need to remand the case to the High Court has occasioned for more than one reason as stated here-in-below. 19. First, the High Court did not formulate any substantial question of law as was required to be framed under Section 260A of the Act. 20. Second, in Para 2 of the impugned order, the High Court observed that Revenue urges following questions of law for our consideration . 21. As is clear from reading of Para 2, the two questions set out in Para 2 were not the questions framed by the High Court as was required to be framed under Section 260A(3) of the Act for hearing the appeal but were the questions urged by the appellant. 22. In our view, there lies a distinction between the questions proposed by the appellant for admission of the appeal and the questions framed by the Court. 23. The questions, which are proposed by the appellant, fall under Section 260A (2) (c) of the Act whereas the questions framed by the High Court fall under Section 260A (3) of the Act. The appeal is heard on merits only on the questions framed by the High Court under sub-section (3) of Section 260A of the Act as provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded under Section 260A (4) of the Act. In other words, the appeal is heard only on the questions framed by the Court. 24. Third, if the High Court was of the view that the appeal did not involve any substantial question of law, it should have recorded a categorical finding to that effect saying that the questions proposed by the appellant either do not arise in the case or/and are not substantial questions of law so as to attract the rigor of Section 260A of the Act for its admission and accordingly should have dismissed the appeal in limine. 25. It was, however, not done and instead the High Court without admitting the appeal and framing any question of law issued notice of appeal to the respondent-assessee, heard both the parties on the questions urged by the appellant and dismissed it. In our view, the respondent had a right to argue at the time of hearing of the appeal that the questions framed were not involved in the appeal and this the respondent could urge by taking recourse to sub-section (5) of Section 260A of the Act. But this stage in this case did not arise because as mentioned above, the High Court neither admitted the appeal nor framed any question as required under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (3) of Section 260A of the Act. The expression such question referred to in sub-section (5) of Section 260A of the Act means the questions which are framed by the High Court under sub-section (3) of Section 260A at the time of admission of the appeal and not the one proposed in Section 260A (2) (c) of the Act by the appellant. 26. We are, therefore, of the view that the High Court did not decide the appeal in conformity with the mandatory procedure prescribed in Section 260A of the Act. 27. Fourth, the High Court should have seen that following substantial questions of law do arise in the appeal for being answered on their respective merits: XXXX 28. In the light of the foregoing discussion, we consider it just and proper to remand the case to the High Court for deciding the appeal afresh to answer the questions framed above on merits in accordance with law. Unquote: In this case the High Court did not admit the appeal and did not formulated any SQL but issued notices to parties, heard and decided appeals. The Supreme Court formulated three SQL and restored the matter to the High Court for taking decision thereon. The case reported as 2019 (5) TMI 201 (SC) RYATAR .... s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra. In this case also the High Court did not formulated any SQL in two cross appeals one by assessee and other revenue / CIT. The appeal of assesse was dismissed and appeal of revenue was allowed but based upon SQL as mentioned by revenue in its petition. Therefore , the assessee preferred appeal by way of SLP. SC followed its judgment in A.A.Estates (supra). Relevant portion from judgment of the SC with highlights added: 9. It is not in dispute that the High Court did not frame any question as required under Section 260A (3) of the Act. 10. This Court recently examined this question in Civil Appeal No.3968 of 2019 arising out of S.L.P.(c) No.29524 of 2017 (PR. Commissioner of Income Tax Central 2 vs. M/s A.A. Estate Pvt. Ltd.) decided on 16.04.2019. Paras 21 to 26 and 28 are apposite which read as under: (xxxx These have been reproduced and discussed earlier I this article) 11. The facts of the case at hand and the one involved in M/s A.A. Estate Pvt. Ltd. quoted above are identical and, therefore, keeping in view the law laid down by this Court in M/s A.A. Estate Pvt. Ltd.(supra), these appeals have to be allowed and the case needs to be remanded to the High Court for hearing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh on merits. 12. In view of the foregoing discussion, the appeals are allowed. The impugned order is set aside. The appeals are remanded to the High Court for hearing afresh only after framing appropriate substantial question(s) of law as required under Section 260A( 3) of the Act. 13. Having formed an opinion to remand the case to the High Court, we have not expressed any opinion on the merits of the issues involved in these appeals. The High Court will, therefore, decide the appeals strictly in accordance with law, uninfluenced by any observations made in the impugned order and in this order. Unquote: In the case of RYATAR, the Supreme Court did not formulate any SQL and restored both appeals to the High Court to consider afresh to find out SQL , if any, and if found SQL to frame SQL and decide afresh both appeals of revenue and assessee. Case of Mohit Agarwal: On reading of the judgement, we find that: The case has been represented and counsels of both sides appeared. Although honorable High Court have stated ( in para 1 of the order) that counsels have been heard (as already discussed in this article in beginning) but unfortunately there is nothing about what counsels of bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th side stated/ argued and counter argued. From second paragraph there is only discussion on the contents of the order of Tribunal that too in a summary manner, without reproducing any part of the order of Tribunal. Even the question of law , proposed by the appellant have not been mentioned. When appeal was admitted is not mentioned. In view of very old appeal, it is likely that the appeal was admitted earlier, likely to be by another bench of the High Court. Even if the appeal was admitted by the same bench. a question may arise as to whether the High Court has reviewed its own order and an appeal earlier admitted based on petition containing question of law has later on, been not admitted hence dismissed by another bench holding view that no SQL arises. Contrary to provisions and binding precedence: The order of High Court is contrary to provisions and is not as per binding precedence in terms of judgments of the Supreme Court, as discussed earlier. Possible future course of action: In view of author, the honorable High Court can itself recall its order, re-check from records, rectify mistake about name of counsel of revenue, and rehear and decide afresh as to whether there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SQL, then formulate such SQL and then answer SQL framed by the High Court. This will be in conformity with judgments of the Supreme Court, as discussed in this article. The appellant can apply for recall and fresh order in view of judgments of the Supreme Court. The appellant can file SLP before the Supreme Court. In that case it is likely that the matter will be restored to the High Court as in two cases discussed in this article. Readers and author on this website are requested to send their views and share experience. - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
