Section 260A authorizes the High Court to hear an appeal only when substantial question of law is involved
CASE LAW DETAILS
Decided by: HIGH COURT OF JAMMU & KASHMIR,In The case of: Qazi Shabir Ahmed v. ITO,Appeal No.: ITA NO. 3 OF 2008, Decided on: February 11, 2009
9. It is settled position of law that appeal is creature of Statute and appeal can be filed only when permitted by Statute and can be filed on the grounds mentioned In the Statute. In terms of section 260-A the High Court gets power to hear and decide an appeal only when a substantial question of law is involved. The section 260-A of the Act of 1961 thus, authorizes the High Court to hear an appeal only when substantial question of law is involved. The appellant has not specifically formulated any substantial question of law in his memorandum of appeal, but at para (6) of the appeal, the appellant has stated that he is aggrieved of the order of Income Tax Appellate Tribunal (Amritsar) Bench and assails the same on the grounds which are taken in alternative and without prejudice to each other and has further stated that substantial questions of law are involved and same need to be adjudicated upon by this court. Appellant however has not clearly delineated in the memo of appeal as to which are the substantial question of law involved.
11. Learned counsel for the appellant in support of his appeal has submitted that the agreement to sell which was produced before first Appellate Authority has not been considered by the said authority which according to wisdom of the ld. counsel constitutes substantial question of law on which this appeal requires to be heard and decided. The perusal of the order of the Commissioner of Income tax (Appeals) as reproduced in this judgment demonstratively shows that the said authority has considered the agreement to sell but has declined to rely upon the same on the valid reasons; that the date and mode of receipt of total amount of Rs.28,00,000/ – has not been mentioned in the said agreement to sell and has accordingly recorded a finding that the amount received allegedly for sale of land cannot be co-related with the dates of deposits in the bank account. The first appellate authority has while further dwelling upon the contention held that the document is not attested or certified by any authority so cannot be taken as genuine document.
The contention of learned counsel for petitioner in view of the finding recorded in para (3.3) of the impugned order pales into in-significance and is rendered un-sustainable in law. The document having been considered but rejected for the reasons recorded would demonstratively show that the affect of the agreement to sell on the proceedings has been considered by the first Appellate Authority. In these circumstances and in view of the law laid down by Supreme Court no substantial question of law is involved on this issue in this appeal. The ld. counsel for the appellant has further submitted that the first appellate authority has not considered the agreement to sell on the grounds that same is an “additional evidence” and not is covered by four exceptions mentioned in Rule 46 A(1) of Income Tax Rules 1962. The agreement to sell, therefore, has not been considered. This argument requires to be rejected on the ground that the agreement to sell has been considered by first appellate authority and has recorded reasons that the dates and modes of receipt of amount of Rs.28,00,000/ – having not been mentioned, so same cannot be co- related with the dates of deposits in the bank account. The first appellate authority has further held that the agreement to sell being an additional evidence is not covered by any of the four exceptions of the Rule 46A(1) of income tax rules 1962. The fact of the matter is that the agreement to sell has been considered and for valid reasons recorded, not given any credence and peripherally also held not to be treated as additional evidence.
12. The learned counsel for the appellant in support of his contention has referred to judgment of the Supreme Court titled “Trustees of H.E.H. Nizam’s Supplemental family Trust appellant v. Commissioner of Income Tax respondent” reported in 2000 (2) Supreme 14; to canvass that the law laid down by Supreme Court in the judgment applies to the facts of this case also. The facts of the case in Trustees of H.E.H. Nizam’s case were that a return of income was filed in which some notes/order were recorded, but were not communicated to the assessee. Subsequent notice u/s 148 was issued for filing of return for same assessment year. Return was filed and Assessment Officer (Income tax Officer) accepted the return and completed assessment. The Supreme Court in the facts of the case held that note of assessment officer was mere information of the assessment, first return was not closed final order having not been passed in the earlier return, re-assessment proceedings were in valid.
13. The fact of this case are explicitly different from facts of the case of Trustees of H.E.H Nizam’s. In this case after issuance of notice for filing of return, the appellant projected before the Income tax officer and requested that the return filed by him at Delhi, photo copy whereof was produced before income tax officer with request to proceed in the matter and complete the assessment proceedings. The income tax officer has passed orders on one single return filed by the appellant. On facts the law laid down by Supreme Court is not applicable to this case.
14. For what has been stated above, no substantial question of law is involved in this case which would enable this court to adjudicate upon the same.