1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. INCOME TAX APPEAL NO. 84/2010 M/s.G.R.Contractors Vs. I.T.O. Ward No.1 Sriganganagar Date of Judgment : 9.11.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Suresh Ojha, for the appellant. BY THE COURT : (PER HON'BLE A.M. SAPRE,J.) The decision rendered in this appeal shall also govern the disposal of other connected appeal because both these appeals arise out one impugned order passed by the Tribunal and secondly it relates to same assesse. 2. This is an appeal filed by the assessee under section 260-A of Income Tax Act (for short hereinafter called “The Act”) against the order dated 7.7.2009 passed by the Income Tax Appellate Tribunal (for short hereinafter called “Tribunal”) in case No.ITA 668/JU/09 and case No.ITA 669/JU/09. 3. By impugned order, the Tribunal allowed the appeal filed by the Revenue and while setting aside of the order passed by Commissioner of Income Tax (Appeals) remanded the case to Commissioner of Appeals for deciding the appeal filed by the assessee afresh on merits as indicated in the order. As a consequence of the remand order, the Tribunal did not consider it necessary to decide the cross objection filed by the assessee on it merits. 2 4. So the question that arises for consideration in this appeal is whether this appeal involves any substantial question of law within the meaning of Section 260-A of the Act? 5. Since the issue involved in this appeal is short one and hence, it is not necessary to take note of the facts of the case in detail except those, which are necessary to understand the controversy and how it was decided by the Tribunal and lower taxing authorities. 6. The dispute relates to assessment year 2004-2005 and 2005-2006. In the first round of litigation, the issue between the parties relating to facts reached up to the Tribunal and by order dated 22.2.2008, the Tribunal in ITA Appeal No.497 of / JDPR/2007 remanded the case to Commissioner of Appeals for deciding the appeal afresh in the light of the directions contained in its order. It is not in dispute that the order passed by the Tribunal dated 22.2.2008 was not challenged by any party and accordingly it attained finality. It had to be, therefore, given effect to by the Commissioner of Appeals, to whom the case was remanded for fresh decision. The Commissioner of Appeals, on remand, by order 21.10.2008 decided the assessee’s appeal in his favour and set aside the order of assessing officer. It is against this order of Commissioner of Appeal, the revenue felt aggrieved and filed the appeal before Tribunal out of which this appeal arises. As observed supra, the Tribunal by the impugned order set aside the order of Commissioner of Appeal and again remanded the case to him for deciding the assessee’s appeal afresh on merits giving rise to filing of this appeal by the Assessee. 7. At this stage, we deem it appropriate to quote the operative part of the impugned order as under:- 3 “....The Ld. CIT(A) not only commented adversely on the order of Appellate Tribunal but also recorded facts contrary to the record when he says that the commission receipt of booking of truck is the net receipt requiring separate application of profit rate. The ld. CIT(A), has recorded not only the perverse findings of fact but has also transgressed his jurisdiction to commenting adversely on the order of superior authority amounting to judicial indiscipline and supported his order that stood obliterated by the order dated 22.2.2008 of the Appellate Tribunal. At places, the directions of the Ld. Tribunal are not considered in the right perspective. Under such peculiar facts & circumstances and keeping in mind that administration of law is not brought into disrepute and also that a substantial justice is rendered to the assessee, we consider it proper to set aside such order of Ld. CIT(A) and remit the matter back to him for passing an order afresh having regard to the observations and directions of Appellate Tribunal as are given in the order dated 22.2.2008. Needless to add reasonable and effective opportunity of being heard shall be allowed to the parties before coming to the conclusion as may be reached after following the directions as aforesaid. 4 5. The Ld. CIT(A) decided the appeal of the assessee for assessment year 2005-05 by following his findings for assessment year 2004-05 against which the revenue is in appeal in ITA No. 668/JU/2008 and the assessee has filed Cross objections. Since his order for assessment year 2004-05 has been set aside for adjudication afresh, in the interest of justice, we consider it proper and justified to set aside his decision for assessment year 2005-06 as well and remit the matter back to his file for fresh adjudication in the light of observations, findings and directions as are contained in the order for assessment year 2004-05 of Appellate Tribunal.” 8. Mere perusal of the impugned order quoted supra would go to show that Tribunal was constrained to set aside the order of Commissioner of Appeal and remand the case again to him because it was noticed that firstly the Commissioner of Appeal had made certain, uncalled for, adverse comments on the reasoning and the manner in which the Tribunal decided the case in its remand order dated 22.2.2008 and secondly, he decided the factual issues contrary to directions contained in remand order. The Tribunal, therefore, took exception to the manner and approach of the Commissioner of Appeal; and expressing their strong disapproval, set aside the order, and remanded the case again to Commissioner of Appeal. 9. We are inclined to agree with the reasoning and conclusion of the Tribunal. In the first place, the order being in 5 the nature of remand, it has not decided any issue on merits. Secondly, as there is no decision on merits and the issue is still left open for its decision by the first appellate authority i.e., Commissioner of Appeals then, the remedy of parties is to submit to the jurisdiction of first appellate authority and get the issue decided on its merit. Thirdly, in cases of remand, no prejudice is caused to either of the parties because the entire issue is left open for decision and if it is decided against any party then he has a right to challenge the same further in second appeal as in this case before the Tribunal and then before this court in appeal under section 260-A ibid. Fourthly, it can not be disputed that Tribunal being an appellate court, has the jurisdiction to remand the case to first appellate authority if a case to that effect is made out by the appellant. 10. All the reasons mentioned above are present in this case to sustain the remand order passed by the Tribunal. Indeed, as has rightly been observed by the Tribunal, the Commissioner of Appeal being subordinate in the hierarchy of appellate jurisdiction to the Tribunal under the Income Tax Act, he was under legal obligation to exercise his appellate powers within the parameters mentioned in the remand order of the Tribunal while deciding the appeal. In no case he had jurisdiction to make any comment on the order passed by his higher appellate authority i.e. the Tribunal. The judicial discipline expects a lower authority to follow the mandate issued by its higher appellate authority. It has no jurisdiction to ignore the mandate or/and go contrary to such mandate. If it does, then such decision is not legally sustainable. 6 11. Learned counsel for the appellant placed reliance on cases reported in Commissioner of Income Tax Vs. Simplex (Indore) P.Ltd. reported in 282 ITR 542 (MP), Commissioner of Income Tax Vs. Choudhary Builders (P) Ltd. reported in 276 ITR 578 (MP), Rameshchandra M. Luthra Vs. Assistant Commissioner of Income Tax reported in 257 ITR 460 (Gujarat), Income Tax Officer, A-Ward, District (A) & Ors. Vs. R.L.Rajghoria, reported in 119 ITR 872 (Calcutta), Munibyrappa Vs. Comissioner of Income Tax reported in 168 CTR 640 (Karnataka), Dhandhia Jewelers Vs. CIT reported in 214 ITR 712 (Rajasthan) and Maddi Sudarsanam Oil Mills Company Vs. CIT reported in 37 ITR 369 (Andhra Pradesh). We have carefully gone through the ratio laid down in these cases. In our opinion, none of these cases are of any help to appellant in this case. The ratio decided in all these cases is entirely on different point and has no application to the facts of this case. In the facts of this case, the impugned remand order was called for by the Tribunal only because the Commissioner of Appeals, whose order was impugned before the Tribunal failed to follow the directions contained in the earlier order of the Tribunal. Such were not the facts of decisions relied on. 12. In the light of forgoing discussion, the appeal is found to be devoid of any merit as it does not involve any substantial question of law within the meaning of section 260-A+ ibid. It is accordingly dismissed in limine. [Dinesh Maheshwari], J. [A.M. Sapre],J. /tarun/