CPT V24P7-Art1 (Content).pmd - Taxmann

of the hearing before the Tribunal the assessee
withdrew its appeal, but sought to press in
aid the provisions of rule 27 of the ITAT Rules,
1963 to contend that the Commissioner of Incometax
(Appeals) had erred in partly confirming
the disallowance. The Tribunal vide its order
dated 9 th September, 2011, while dismissing
the appeal of the assessee with regard to
admission of the appeal which was filed with
a delay of 551 days as no sufficient cause was
shown in filing the appeal belatedly, held that
in the absence of relevant details being brought
on record by the parties and in the interests
of justice it was appropriate to remand the
entire matter pertaining to the disallowance of
` 28.69 lakhs to the Assessing Officer.
Accordingly, the order passed by the Assessing
Officer on this account was set aside in its
entirety by the Tribunal and the Assessing
Officer was directed to decide the matter afresh
in view of the decision of the Mumbai Special
Bench in Dy. CIT v. Shreyas S. Morakhia [2010]
40 SOT 432.
The Revenue filed an appeal before the High
Court.
ARGUMENTS PUT FORTH BY BOTH
SIDES BEFORE THE HIGH COURT
3. The Revenue contended that as per rule 27
of the ITAT Rules, 1963 the assessee, as the
respondent to the appeal filed by the Revenue,
would be permitted to support the order passed
by the Commissioner of Income-tax (Appeals)
only on any of the grounds decided in favour
of the assessee and not support order on the
point(s) by taking recourse to the provisions
of rule 27 of the ITAT Rules, 1963 where the
assessee had withdrawn its appeal.
It was submitted on behalf of the assessee
that as the appeal was barred by limitation
the assessee was advised to withdraw the
appeal so that provisions of rule 27 of the
ITAT Rules, 1963 could be pressed in aid
and, accordingly, the assessee withdrew the
appeal.
DECISION OF THE HIGH COURT AND ITS
BASIS
4. The High Court, in the instant case, extracted
the relevant rule 27 of the ITAT Rules, 1963
which reads as under:-
“27. Respondent may support order on grounds
decided against him:- The respondent, though
he may not have appealed, may support
the order appealed against on any of the
grounds decided against him.”
The High Court then referred to its earlier
decision in the case of B.R. Bamasi v. CIT
[1972] 83 ITR 223 (Bom.) wherein the Division
Bench after noting an earlier judgment in CIT
v. Hazarimal Nagji & Co. [1962] 46 ITR 1168
(Bom.) for the proposition that a respondent
in an appeal is undoubtedly entitled to support
the decree which is in his favour on any grounds
which are available to him, even though the
decision of the lower court in his favour may
not have raised those grounds and observed
that the powers of the Appellate Tribunal are
similar to those of an Appellate Court under
Order XLI rule 22 of the Code of Civil Procedure,
1908.
The High Court made the following observations
at para 12 of its order-
“Once the appeal was withdrawn, it was
only open to the assessee to support the
order of the Commissioner (Appeals) on
any of the grounds decided in its favour.
Hence, while the assessee would support
the order that 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 Commissioner (Appeals)
was correct and proper, the assessee 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 Commissioner
(Appeals) which, upon consideration of
the evidence, confirmed the disallowance
of ` 14.96 lakhs made by the Assessing
Officer.”
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