hcs 1 16.ia251.15 IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.251 OF 2015 Principal Commissioner of Income Tax-13, Mumbai .. Appellant. Vs. Say India Jewellers Pvt. Ltd. .. Respondent. Mr.Arvind Pinto for Appellant. Ms. A. Visanjee with Mr.Sudhir J. Mehta for Respondent. CORAM : A.S. OKA & A.K. MENON, JJ. DATED : 14TH NOVEMBER, 2017 P.C. 1. Learned counsel appearing for appellant - Income Tax Department, on instructions, has made very interesting submission. He submits that Income Tax Appellate Tribunal (Tribunal) has wide powers and therefore, even if factual submission or factual ground is not urged by appellant, it is duty of Tribunal to apply its mind and correct impugned order before it. 2. controversy which arises is noted in order dated 31st October, 2017. Paragraphs 1 to 4 reads thus : 1. Various submissions are made by learned Counsel appearing for appellant. He relies upon paragraphs 5.11 and 5.12 of Memorandum of Appeal. He is trying to find fault with impugned judgment of Appellate Tribunal on ground that Tribunal has not even adverted to statement of Mr Hiten Rawal and evidence tendered by him. 2. Perusal of impugned order and in particular paragraph 6 shows that representative of ::: Uploaded on - 29/12/2017 ::: Downloaded on - 02/01/2018 09:32:14 ::: 2 16.ia251.15 appellant did not argue before Tribunal on basis of statement of Shri Hiten Rawal and evidence tendered by him. All that representative stated before Tribunal that he is supporting finding of Assessing Officer. 3. Appellant had assailed order of Commissioner of Income Tax (Appeals) first Appellate Authority. It appears from impugned judgment that representative of department did not point out to Appellate Tribunal any flaw in judgment of first Appellate Authority. 4. If it is case of appellant that all this was argued before Appellate Tribunal and was not considered, Remedy of appellant is before Tribunal. 3. Today, learned counsel appearing for appellant states that he has instructions to prosecute appeal and not to take recourse to remedy before Tribunal. He reiterated submission made on last date that though no such submission was made on behalf of appellant in its own appeal before Appellate Tribunal, on basis of statement of Shri Hiten Rawal and evidence tendered by him, it was obligation of Tribunal to consider said ground in favour of appellant. His submission is that in memorandum of appeal, said contention was specifically raised. In support of proposition canvassed by him, he placed reliance upon following decisions: (i) Commissioner of Income Tax vs. Choudhary Builders (P) Ltd. ITR Vol.276 Page 578; (ii) Hukumchand Mills Ltd. vs. Commissioner of Income Tax, Central, Bombay ITR Vo.LXIII Page 232; ::: Uploaded on - 29/12/2017 ::: Downloaded on - 02/01/2018 09:32:14 ::: 3 16.ia251.15 (iii) Oil India Ltd. vs. Commissioner of Income Tax ITR Vol.135 Page 713; (iv) Koduri Pulleswara Rao and Anr. vs. Commissioner of Income Tax ITR Vol.XV Page 425; (v) Bhor Industries Ltd. vs. Commissioner of Income Tax, Central, Bombay ITR Vol.XLVIII Page 376. We have carefully perused decisions relied upon by appellant. All decisions lay down that Appellate Tribunal possesses very wide powers. None of judgments lay down proposition of law that even if particular ground taken in memorandum of appeal is not argued at time of final hearing, still Appellate Authority or Tribunal is under obligation to look into said ground and decide appeal while taking into consideration said ground. 4. Perused judgment and order of Appellate Tribunal which shows that representative of appellant, who argued appeal did not invited attention of Tribunal to statement of Shri Hiten Rawal and evidence tendered by him. Our earlier order dated 31st October, 2017 notes that if it is case of appellant is that contention based on statement of Mr.Rawal was raised but was not considered by Tribunal, appellant has remedy before Appellate Tribunal. However, today learned counsel appearing for appellant submits that Tribunal was under obligation to consider said contention even if said ground was not agitated before Appellate Tribunal. 5. There is difference between powers conferred on Tribunal and obligations of Tribunal. In given case, memorandum appeal may contain several grounds, but appellant may choose to argue only few grounds at time of final ::: Uploaded on - 29/12/2017 ::: Downloaded on - 02/01/2018 09:32:14 ::: 4 16.ia251.15 hearing. It is impossible to accept submission canvassed across bar that it was obligation of Tribunal to consider grounds in memorandum of appeal which were not agitated by appellant before Appellate Tribunal at time of hearing, and to decide appeal on merits after taking into consideration grounds which were not pressed into service by appellant. 6. If this argument is accepted, Income Tax Tribunal or for that matter any Appellate Tribunal will have to undertake exercise of going into merits of grounds of memorandum of appeal which are not pressed into service and thereafter decide appeal on merits. 7. There is yet another angle to this. If this argument is accepted, surely Tribunal cannot decide appeal against respondent by invoking grounds which are not argued by appellant without notice to respondent. Hence, in such event, Tribunal will have to rehear appeal with view to give opportunity to respondent to meet certain contentions raised in appeal but pressed into service. This will cause undue delay in disposal of appeals. 8. Therefore, we have no hesitation in rejecting only ground agitated by learned counsel for appellant for Income Tax department. 9. No substantial question of law arises. appeal is accordingly dismissed. (A.K. MENON, J.) (A.S. OKA, J.) ::: Uploaded on - 29/12/2017 ::: Downloaded on - 02/01/2018 09:32:14 ::: Principal Commissioner of Income-tax-13, Mumbai v. Say India Jewellers Pvt. Ltd