BY TIOL News Service

MUMBAI, FEB 25, 2019: THE issue before the High Court was whether any claim revoked before the CIT(A) can be resurrected before the Tribunal, more so where the assessee fails to show any mistake of fact or law which led to withdrawal of claim before the former. NO is the answer.

Facts of the case

THE assessee, an individual, filed return for the relevant AY. On assessment, the AO passed order making additions on two counts. The first was a sum of about Rs 89.19 lakhs which were disallowance of brokerage charges paid by the assessee. The other was of about Rs 12.01 crores towards certain purchases. On appeal, the CIT(A) called for a remand report. While submitting the same, the AO issued notices to the parties to whom the assessee claimed to have had paid brokerage. The assessee conceded before the AO that such payments were not genuine. Thus the assessee withdrew the dispute regarding the additions made on account of brokerage charges. Regarding the additions made on account of purchases, the CIT(A) gave full relief to the assessee, while sustaining the disallowance of brokerage charges.

The assessee then approached the Tribunal, contesting such disallowance. The Tribunal however, gave only partial relief and sustained disallowance of about Rs 61.71 lakhs on this count. Such findings were based on the rationale that the assessee had been given a full opportunity to present submissions and had consented to withdraw the ground of challenge before the CIT(A) in this regard. Hence the present appeal.

On appeal, the High Court held that,

++ during the remand proceedings, the assessee was confronted with material suggesting that the brokerage payments were not genuine. The assessee gave a statement conceding to the same and later on before the CIT(A) withdrew the entire claim. Once having withdrawn the claim from the appellate authority, it was not open for her to challenge the order based on such concession, before the Tribunal. In the appeal memo also, no grounds are made out suggesting any mistake of law on facts which led the assessee to give such concession. When the assessee by withdrawing the claim did not invite any decision from CIT(A), it cannot be understood as to under what circumstances, she could have filed appeal against the order of the CIT(A) recording that such ground is not required to be examined on merits.

(See 2019-TIOL-469-HC-MUM-IT)