COMMISSIONER OF INCOME TAX Vs. KARIM KAMRUDDIN MALIK
LAWS(BOM)-2018-3-264
HIGH COURT OF BOMBAY (FROM: AURANGABAD)
Decided on March 26,2018

COMMISSIONER OF INCOME TAX Appellant
VERSUS
Karim Kamruddin Malik Respondents




JUDGEMENT

B.P. Dharmadhikari, J. - (1.)Heard Shri Parchure with Shri Mohta, learned counsel for the appellant and Shri Jaiswal, learned Senior Advocate with Mrs. Bajaj, learned counsel for the respondent.
(2.)The present Appeal has been admitted on 10.01.2018 and was directed to be placed for hearing on 28.02.2018. The question formulated by this Court then reads :
"Whether on the facts and in the circumstances of the case and in law, Hon'ble ITAT was justified to entertain a ground by an oral submission without there being any specific ground raised before it and without any defence, submission and pleadings made by the assessee at the first instance before assessing officer, or before the CIT(A) with regard to his contention of defective show cause notice issued by the assessing officer for penalty under Section 271(1)(c) of the Income Tax Act, 1961."

On that day, hearing came to be adjourned to today. Today, Shri Jaiswal, learned Senior Advocate appearing for the assessee has sought adjournment to verify the position emerging after the judgment of the Income Tax Appellate Tribunal (I.T.A.T.) Bombay, in the case of Meherajee Cassinath Holdings Pvt. Ltd. vs. Assistant Commissioner of Income Tax,2017 49 CCH 247, and judgment delivered by Pune Tribunal, in the case of Kanhaiyalal D. Jain vs. Assistant Commissioner of Income Tax,2016 48 CCH 469. His submission is, these judgments have looked into the Division Bench judgment of this Court in the case of CIT vs. Smt. Kaushalya & Ors., 1995 216 ITR 660, (Bom.) and said judgment adopted the view expressed earlier in the case of CIT & Anr. vs. Manjunath a Cotton and Ginning Factory, 2013 359 ITR 565 (Karnataka) and in the case of CIT vs. Shri Samson Perinchery, 2017 392 ITR 4 (Bom.). Appellants most probably acquiesced in it and hence the present challenge itself is unsustainable.

(3.)Shri Parchure, learned counsel, however, has pointed out very limited question of law on which appeal has been admitted. He submits that if this question is answered in favour of the revenue, larger exercise attempted by Shri Jaiswal, learned Senior Advocate, will not be open at all. He further adds that in any case the authorities ought to have looked into and recorded a finding of prejudice and thereafter only proceeded to look into the law on the point. He is relying upon Rule 27 and submits that I.T.A.T. is taking recourse to said Rule to permit the respondents before it to support the order appealed against, though he may not have challenged the adverse findings recorded therein. According to him, without giving revenue, which was not appellant before the I.T.A.T., necessary opportunity in this respect, such a course of action is not available.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.