Matter remanded to Tribunal as questions raised before the Court were never raised before the Tribunal

SUPREME COURT OF INDIA

Civil Appeal No. 5503 of 2013

Commissioner of Income-tax, Kolkata-III..........................................................Appellant.
v.
Jhabua Power Ltd. ...........................................................................................Respondent

H.L. DATTU AND DIPAK MISRA, JJ.

Date : JULY 15, 2013

Appearances

Arijit Prasad, Rahul Kaushik, Ms. Rashmi Malhotra, Ms. Anil Katiyar and B.V. Balaram Das for the Petitioner.
Ramaesh Singh and A.T. Patra for the Respondent.

Section 261 read with section 275 of the Income Tax Act, 1961 — Appeal to Supreme Court — Matter remanded to Tribunal as questions raised before the Court were never raised before the Tribunal.

FACTS

Revenue raised two questions of law before the Court namely whether the period of limitation was governed by the provisions of section 275(1) as the penalty was initiated in the assessment order itself and penalty order was issued within time in accordance with the provisions of section 275(1) (a) and whether order of penalty was barred under the provisions of section 275(1)(c) and failed to consider that penalty was initiated in the assessment order itself and the same was issued within time in accordance with section 275 (1)(a).

HELD

That these questions were raised for first time before Supreme Court. The questions required to be answered first by Tribunal. Order(s) and judgment(s) passed by the High Court and Tribunal were set aside and matter was remanded back to Tribunal to decide the aforesaid questions of law after affording opportunity of hearing to both parties. In the result, matter was remanded.

ORDER

1. Delay condoned.

2. Leave granted.

3. This Court, vide order dated 11th July, 2011, while issuing notice, has stated two specific questions raised by the Revenue for the first time before this Court. The questions are as follows :

"(a)		Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal failed to appreciate that the period of limitation in the instant case is governed by the provisions of Section 275(1) as the penalty was initiated in the assessment order itself and the penalty order was issued within time in accordance with the provisions of Section 275(1)(a) of the Income Tax Act, 1961?
(b)		Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in coming to the conclusion that the order of penalty was barred under provisions of Section 275(1)(c) and failed to consider that penalty was initiated in the assessment order itself and the same was issued within time and in accordance with Section 275(1)(a) of the Income Tax Act, 1961?"

4. In our considered view, these two questions requires to be answered first by the Income Tax Appellate Tribunal (for short, "the Tribunal"). Accordingly, while allowing this appeal, we set aside the judgment(s) and Order(s) passed by the High Court and the Tribunal.

5. We remand the matter back to the Tribunal and request the Tribunal to decide the aforesaid questions of law after affording opportunity of hearing to both the parties.

6. The Civil Appeal is disposed of accordingly.

[2013] 217 TAXMAN 399 (SC)