2018 (2) TMI 188

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....ppellate Tribunal ("the Tribunal" for short), are being finally disposed of at the stage of admission. 2. These three Petitions under Article 226 of the Constitution of India, take exception to the common order dated 28 March 2016 passed under Section 254(1) of the Income Tax Act, 1961 ("The Act" for short) and common order dated 19 May 2017 passed under Section 254(2) of the Act relating to assessment year 200910. The impugned order dated 28 March 2016 passed in a regular Appeals under Section 254(1) of the Act by the Tribunal while partly allowing the Appeals of the Revenue, restored the issue of the Assessing Officer to determine the nature (capital or revenue) of the loan waiver. The common impugned order dated 19 May 2017 dismissed ....

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....Tribunal was duty bound to put the case law it seeks to rely upon, to the parties before it and consider their submission on it, before taking a view of the dispute. 5. On the other hand, Mr. Malhotra, learned Counsel for the Revenue, places reliance upon the impugned order dated 19 May 2017 of the Tribunal, rejecting the rectification application. In the above impugned order, Tribunal accepted the fact that the decision of the Delhi High Court in Logitronics P.Ltd. (supra) was not a decision which arose for consideration during the course of hearing of the Appeal leading to order dated 28 March 2016. However, it is submitted that the impugned order correctly holds that this reference to the above decision of the Delhi High Court, would ....

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....sessee. Here, we would like to refer to the case of Logitronics P.Ltd. (333 ITR 386), delivered by the High Court of Delhi. The facts of the case were that under a onetime settlement with the bank, the assessee discharged Rs. 1,85,00,000/against the principal amount of loan of Rs. 4,76,92,213/and the remaining sum of Rs. 1,90,42,295/was waived, that the Assessing Officer taxed the principal amount of loan waived as income, that the FAA deleted the addition holding that the provisions of sections 2(24), 28(i), (iv) and 41(1) were not applicable and that the Assessing Officer was not justified in making the addition of Rs. 2,91,42,213/being the principal amount of loan waived. The Tribunal reversed the order of the FAA. On further Ap....

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.... had taken a decision of remanding back the matter to the file of the Assessing Officer on the basis of cases already referred to by FAA. As far as case of Logitronics P.Ltd. (supra) is concerned it has been mentioned as supporting the decision already taken. It is not deciding factor......" 9. Our Court in Inventure Growth And Securities Ltd. Vs. IncomeTax Appellate Tribunal & Ors 324 ITR 319. had occasion to deal with the similar fact situation viz. Tribunal passing an order by relying upon a decision, which was not a subject matter of consideration during the hearing of the Appeal and rectification application, was also disallowed by the Tribunal. In a Writ Petition filed, our Court has while allowing the Petition, held as under : ....

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....in above, we note that having directed the restoration of the matter to the Assessing Officer, it goes on to extract certain observation of the Delhi High Court in Logitronics P.Ltd. (supra) and only thereafter i.e. considering the above decision, decides ground No. 2 in the Appeal, was in favour of the Revenue. In the aforesaid facts, we cannot with certainty state that the decision in Logitronics P.Ltd. (supra) had not even remotely influenced the decision taken. In this case, the manner in which the order dated 28 March 2016 is structured and in the final view/direction given after considering the decision of the Delhi High Court in Logitronics P.Ltd. (supra), it does prima facie appear to us, have been influenced by it. Therefore, in th....