HIGH COURT OF MADHYA PRADESH : JABALPUR (Division Bench) I.T.A. No.102/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.103/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.104/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.105/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.106/2019 Sir Syed Educational & Siocial Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.107/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal I.T.A. No.108/2019 Sir Syed Educational & Social Welfare Society, Bhopal -Versus- Assistant Commissioner of Income Tax-1, Bhopal 2 Shri Sumit Nema, Senior Advocate with Shri Mukesh Agrawal, Advocate for appellant. Shri Sanjay Lal, Advocate for respondent. CORAM : Hon'ble Shri Justice R.S. Jha, Acting Chief Justice Hon ble Shri Justice Vijay Kumar Shukla, Judge ORDER (Jabalpur, dtd.21.8.2019) Per : R.S. Jha, Acting C.J. - In these appeals filed under Section 260-A of Income Tax Act, 1961 [hereinafter referred to as Act ] objection regarding maintainability of appeals against order passed by Income Tax Appellate Tribunal, Indore [for short Tribunal ] rejecting application filed under Rule 27 of Income Tax Appellate Tribunal Rules, 1963 [for brevity Rules ], is raised by respondent. Having heard learned counsel for parties, we do not find any substance in same, in view of decision of Supreme Court rendered in case of Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement and another, (2010) 4 SCC 772, wherein exact terms mentioned in Section 260-A of Act, namely, any order passed were considered and interpreted by Supreme Court with reference to provisions of Section 35 of Foreign Exchange Management Act, 1999. Supreme Court while interpreting 3 words any decision or order of appellate authority has held that word any would mean all orders passed by Appellate Authority. Supreme Court has held that as words of provision providing for appeal are wide enough to include all orders, litigant cannot be denied right to appeal conferred by statutory provision, subject to conditions mentioned therein, namely, that substantial question of law arises for adjudication from order in appeal. 2. In view of decision rendered by Supreme Court in Raj Kumar Shivhare (supra) objection regarding maintainability is rejected and present appeals are held to be maintainable. 3. We have also heard learned counsel appearing for parties on merits. On hearing of parties, we are of considered opinion that following substantial question arises for adjudication in these appeals : Whether finding of ITAT that assessee under garb of present application is trying to agitate new ground which was not before Ld. CIT(A) is perverse and contrary to record inasmuch as ground No.3 raised before CIT(A) was very much in respect of validity of proceedings u/s 153C and thus no new ground was being raised for first time before ITAT ? 4 4. With consent of parties matter is considered and decided on merits. It is submitted by learned senior counsel for appellant that CIT(A) in paras 3.1 and 3.2 of its order, dated 30-8-2012, has apparently drawn adverse inference against appellant under Section 153-C of Act, on basis of certain papers which were seized from some other individuals and not assessee. 5. learned senior counsel for appellant has also taken this Court through application filed by assessee under Rule 27 of Rules, wherein assessee has clearly stated that he proposes to assail findings recorded by CIT(A) on grounds No.3 and 4, which have been decided against assesseee. It is submitted that in such circumstances, it is manifestly clear that appellant has raised specific grounds to assail findings recorded by CIT(A) in application filed under Rule 27 of Rules, but Tribunal by impugned order dated 8-5-2019 has rejected application by simply stating that learned Senior Counsel appearing for assessee could not point out as to what are grounds decided against assessee. It is submitted by learned senior counsel that when grounds were specifically mentioned in application under Rule 27 of Rules and were apparently evident from finding recorded in respect of Grounds 5 No.3 and 4 by CIT(A), rejection of application without considering same amounts to perversity, giving rise to substantial question of law for adjudication. learned senior counsel for appellant submits that in such circumstances, impugned order passed by Tribunal deserves to be set aside and matter deserves to be remitted back for detailed decision on application under Rule 27 of Rules filed by appellants on merits. 6. learned counsel appearing for respondent- revenue submitted that bare perusal of impugned order passed by Tribunal per se makes it clear that at time of arguments learned senior counsel appearing for assessee failed to point out any ground in order passed by CIT(A) that was decided against assessee. It is submitted that in absence of assessee specifically stating and pointing out grounds that were decided against assessee, no fault can be found with order passed by Tribunal rejecting application. 7. We have heard learned counsel for parties at length and perused order passed by CIT(A), dated 30-8- 2012; application filed by assessee under Rule 27 of Rules as well as impugned order passed by Tribunal rejecting 6 application. From perusal of aforesaid three documents, it is apparent that appellant had raised clear and specific grounds in application filed under Rule 27 of Rules in respect of finding recorded by CIT(A) as regards ground Nos.3 and 4, and conclusion recorded against assessee with aid of Section 153-C of Act. It is also evident that assessee had raised issue regarding consideration of certain documents which had never been seized from assessee but were considered by authorities. It is also evident from perusal of order of CIT(A) and application filed under Rule 27 of Rules that these grounds were sought to be raised by appellant before Tribunal. 8. In such circumstances, we are of considered opinion that impugned order passed by Tribunal suffers from perversity, as Tribunal without considering aforesaid issues has dismissed application filed by appellant under Rule 27 of Rules by merely stating that counsel for assessee could not point out grounds that were decided against him. More so, when grounds raised by appellant were manifestly apparent from order passed by CIT(A). 7 9. In such circumstances, substantial question of law framed by appellant is answered by this Court in favour of assessee. impugned order passed by Tribunal, dated 8-5- 2019 is set aside and matter is remitted back to Tribunal for considering and deciding application under Rule 27 of Rules filed by appellants on merits, by taking into consideration averments made therein as well as decision of CIT(A) on issues decided against appellant. 10. With aforesaid observations and directions, appeals stand allowed and disposed of. (R.S. Jha) (Vijay Kumar Shukla) Acting Chief Justice Judge ac. Digitally signed by AJAY KUMAR CHATURVED Sir Syed Educational & Social Welfare Society v. Assistant Commissioner of Income-tax-1, Bhopal