1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.212 OF 2010 Naresh K. Pahuja ..Petitioner. V/s. The Income Tax Appellate Tribunal & Ors. ..Respondents. Dr. K.Shivram with A.R. Singh and Sujeeth Karkal i/b. A.R. Singh & Paras Savla for petitioner. Mr. Suresh Kumar for respondents. CORAM : DR. D.Y.CHANDRACHUD AND J.P.DEVADHAR, JJ. DATED : 22ND FEBRUARY, 2010 P.C. :- 1. Rule, by consent made returnable forthwith. Counsel for the respondent waives service. With the consent of counsel, the petition is taken up for final hearing. 2. The challenge in this petition under Article 226 of the Constitution is to the order passed by the Tribunal on 9th November, 2009 by which the application of the petitioner under section 254(2) of the Income Tax Act, 1961 was dismissed. 3. The Tribunal by its order dated 10th July, 2007 dismissed an appeal filed by the petitioner. The petitioner moved a miscellaneous 2 application under Section 254(2) which was dismissed on 11th July, 2008. The order of the Tribunal dismissing the application was questioned before this Court in a Petition under Article 226. On 19th January, 2009 a Division Bench of this Court found substance in the grievance of the petitioner that the Tribunal had not fully dealt with the application under Section 254(2). In paragraph 5 of the judgment, this Court held as follows:- "...The main grievance of the petitioner before the Tribunal was that the Tribunal relied upon certain judgments of which the petitioner had no notice. They were not cited by the departmental representative. The Tribunal also did not indicate that it was relying on those judgments. The petitioner is particularly aggrieved by the reliance placed on the Supreme Court's Judgment in CIT V/s. P. Mohankala [(2007) 291 ITR 278 (SC)]. According to the petitioner, no opportunity was given to him to explain how the said judgment is not applicable to the facts of the case. The petitioner is also aggrieved by the fact that the statement of the donor Mr.Punjabi dated 9/8/1999 was not considered by the Tribunal. " 4. This Court thereupon remanded the proceedings back to the Tribunal to decide the application afresh, after hearing the parties. The Court also noticed that the judgment of the Tribunal has been delivered without taking into consideration the statement of the donor. It may noted at this stage, for the purpose of clarity that during assessment year 1995-96, the petitioner claimed to have received three gifts which were credited to the capital account. The Assessing Officer made an addition under Section 68 in respect of the aforesaid gifts holding that those are not genuine. 5. After the order of remand was passed by this Court, the Tribunal passed a fresh order on 9th November, 2009. In paragraph 5 of its judgment, the Tribunal has noticed the grievance of the petitioner before this 3 court that he was not given an opportunity to place his submissions in respect of the judgments which were relied upon by the Tribunal. Evidently, a reference to that in paragraph 5 of the impugned order of the Tribunal is to the observations of this Court in paragraph 5 of the judgment dated 19th January, 2009 in Writ Petition No.2515 of 2008 which have been extracted earlier. Notwithstanding this, we do not find any evaluation by the Tribunal on this aspect of the matter. The Tribunal has during the course of its judgment sought to fortify his views by referring to the order dated 10th July, 2008 which was already set aside on 19th January, 2009 by this Court. 6. In these circumstances, there is merit in the submission which has been urged on behalf of the petitioner that despite the order of remand, the Tribunal has not complied with the directions contained in paragraphs 5 and 6 of the judgment of this Court dated 19th January, 2009. In this view of the matter and particularly having regard to the limitations on the jurisdiction of this Court to inquire into questions of fact, we deem it appropriate to remand the proceedings back to the Tribunal, by setting aside the impugned order dated 9th November, 2009. The Tribunal shall, upon remand, reconsider the application under Section 254(2) afresh, having due regard to the observations contained in paragraphs 5 & 6 of the judgment of this Court dated 19th January, 2009 in Writ Petition No.2515 of 2008. 5. Rule is made absolute in the above terms. There shall be no order as to costs. (J.P.DEVADHAR, J.) (DR. D.Y.CHANDRACHUD, J.)