Oral Judgment: (S.A. Bobde, J.)
Heard Shri R. G. Ramani, learned Counsel appearing for the appellant and Ms. Asha Desai, learned Counsel appearing for the respondent.
2. Admit on the following substantial questions of law:
(a) Whether the Tribunal was right in law in summarily setting aside the decision of Commissioner with respect to the issue of partial denial of deduction under Section 33AC of the Act and in remanding the same to the file of the Commissioner without assigning any reason therefor and ignoring the decision of the Jurisdictional High Court in the case of CIT Vs. Ganesh Builders (116 ITR 911)?
(b) Whether the Tribunal was right in law in not deciding the pure question of law with respect to legality of the reassessment proceedings urged before it under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 instead of remanding the same back to the file of the Commissioner?
3. Ms. Asha Desai, learned Counsel waives service on behalf of the respondent.
4. Taken up for final hearing by consent.
5. The main submission of Shri Ramani, learned Counsel for the appellant is that the order of the ITAT dated 19.07.2011 is vitiated in that the ITAT has failed to deal with the correctness or otherwise of the finding of the CIT dated 22.09.2009 holding that the reduction of the deduction made in the appellant's assessment on the ground that the appellant was a private company for 78 days was not correct in law. According to Shri Ramani, the ITAT has set aside the finding in the appellant's favour given by the CIT on the question of reduction of the deduction without deciding whether it is correctly rendered or not. Having considered the matter, we find substance in the ground raised by Shri Ramani, who has also relied on the decision of this Court (Per Deshmukh, J) in the case of Commissioner of Income Tax, Bombay V/s Ganesh Builders, where this Court has observed as follows:
“We may incidentally observe that in a case like the present one, where alternative arguments on facts are possible and varying findings can be given, it is desirable that the appellate authority gives all findings of fact and not dispose of the matter merely on a point of law. This would facilitate final disposal of the matter by the High Court, whose jurisdiction is limited merely to the question of law by the added Chap. XX-A. This is a normal approach in all civil matters unless of course a point of law is already decided by the highest court of this land and it is not worthwhile making all the exercises in going through the complicated facts required for the decision of this case.......”
6. We find that the ITAT has dealt with the finding that ITAT which was hearing an appeal from the order of the Assistant Commissioner of the Income Tax has substantially dealt with the ground no.2 referred to in the first para of its order and while deciding the ground no.2 against the appellant has also set aside the finding on the aforesaid question in the appellant's favour without substantially considering the same. This has occasioned serious prejudice to the appellant. Having regard to the observations of this Court in the case of Commissioner of Income Tax, Bombay V/s Ganesh Builders (supra), the order in appeal of the ITAT is hereby set aside and the matter is remanded back to the ITAT for a fresh consideration on all points before it, in accordance with law.