CPT V24P7-Art1 (Content).pmd - Taxmann

the ITAT Rules, 1946, vis-à-vis the order passed
by the first appellate authority, in the following
words-
“When the department files an appeal for
an increase in the assessed income, the
subject-matter of the appeal is the increase
claimed by the department and the assessee
can urge any ground of defence, even
though it might have been rejected by the
Appellate Assistant Commissioner, for
showing that there should be no increase.
That the assessee is not liable to be assessed
at all is a ground for showing that there
should be no further assessment and the
department’s appeal can, therefore, be
resisted on this ground. There is no
incongruity in maintaining the assessment
order passed on the assessee and refusing
to increase it on the ground that he was
not liable to be assessed at all.
But if the Tribunal accepts the ground of
defence that the assessee was not liable
to be assessed at all, it can only refuse
to increase the assessed income as only
that will be “an order on the appeal” by
the department. Any other order such as
annulling the assessment would be outside
the scope of the appeal:
Held, on the facts, that on a proper
interpretation of the statement of the case
• DT - Secs. 36(2) & 37(1)/Rule 27
and the question framed what the assessee
desired to argue before the Tribunal was
that the assessment order itself should be
quashed because the receipts were not
profits at all, and this was rightly disallowed
by the Tribunal.”
CONCLUSION
6. In the light of the detailed discussion, it
becomes clear that pros and cons have to be
weighed before an appeal filed by an assessee
[on some point(s)] before the ITAT is withdrawn
by him as the assessee would be left with no
remedy on account of the fact that in the event
of such withdrawal of appeal he would be
divested of powers/rights to invoke rule 27
of the ITAT Rules, 1963 on the same point(s),
in case of need. It is always advisable to go
through the facts of each case minutely before
applying decided case laws to the issue(s) in
hand. It is also imperative to go through the
circulars issued by the Central Board of Direct
Taxes from time-to-time to understand the
purpose of introduction/amendment to a section
or a rule. It is also necessary to understand
from a decision rendered by a judicial authority
as to what points have been decided by the
authority and which points were not before it
for adjudication?
August 1 to 15, 2012 u TAXMANN’S CORPORATE PROFESSIONALS TODAY u Vol. 24 u 17
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