Income-tax---

----Appeal to Appellate Tribunal---Filing of memorandum of cross-objections by aggrieved party against order of Appellate Authority---Cross-objections need not be confined to points taken by opposite-party in main appeal-- No difference between an appeal and a cross-objection---Indian Income Tax Act, 1961, S 253(4)---Indian Income Tax (Appellate Tribunal) Rules, 1963, R.22.

A combined reading of section 253(4) of the Income Tax Act, 1961, and rule 22 of the Income-tax (Appellate Tribunal) Mules, 1963, makes it abundantly clear that any party aggrieved against the order of the appellate authority can file a memorandum of cross-objections against any part of the order of the Deputy Commissioner (Appeals). The cross-objections need not be confined to the points taken by the opposite-party in the main appeal. The words "against any part of the, order of the Deputy Commissioner" are wide enough to cover a situation where the Revenue has challenged the order of the Deputy Commissioner (Appeals) on the merits regarding the quantum of the tax liability, but the assessee in cross-objections can challenge the order of the Deputy Commissioner not only on the quantum of tax amount but on other points also. On a point of law there is no difference between but .an appeal and a cross-objection. The only difference if at all there is any is that an appeal can be preferred within 60 days from the date of receipt of the order whereas a cross-objection can be filed within a period of 30 days of the date service of the appeal by the opposite-party.

G. K. Joshi and U. Bhuyan for the Commissioner.

K. H. Choudhury for the Assessee.

JUDGMENT

N.C. JAIN, ACTG. C. J.---In this income-tax reference two questions were got referred by this Court. The questions, which have been referred by the Tribunal are reproduced below:

"(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in an appeal by the Revenue in respect of quantum of assessment in accepting cross-objection of the assessee regarding question of registration of the firm? and

(ii) Whether the Tribunal was justified in allowing registration by holding that the daughter-in-law of P. N. Barthakur was not a benamidar?"

In order to appreciate the arguments raised before us it is necessary to have a look at the facts of the case, which lie in a narrow compass.

The Income-tax Officer, vide his assessment order, dated March 25, 1985, assessed the assessee. While making the assessment he held Shrimati Anjali Barthakur to be the benamidar of Sri P.N. Barthankur. At the same time, the Income-tax Officer refused registration to the firm. In appeal, the order of the Income-tax Officer was upheld on the aforementioned two points. The Commissioner of Income-tax tiled an appeal before the Income tax Appellate Tribunal, Guwahati Bench, Guwahati, urging therein that the Appellate Assistant Commissioner was not justified in directing the Income tax Officer to take the Income from truck at Rs.7, 000 per month as against Rs.10, 000 per month as was taken in the assessment. The assessee filed cross-objections and no independent appeal was filed by it. The Tribunal, by its order, dated September 4, 1989, dismissed the appeal of the Revenue and allowed the cross-objections of the assessee. The Revenue having failed to convince the Tribunal for referring the questions of law to this Court for decision came in writ application. This is how the two questions reproduced in the earlier part of the judgment have been referred by the Tribunal in accordance with the directions issued by this Court.

Learned counsel for the Revenue has vehemently argued that the assessee having not filed any independent appeal could not have filed cross-objections on the points which were not taken up in the memorandum of appeal by the Revenue before the Tribunal. In other words, it has been argued that the cross-objections could pertain only to the subject-matter sought to be raised by the Revenue in the ground of appeal before the Appellate Tribunal. It has further been argued that on the facts and circumstances the finding of the Tribunal that Anjali Barthakur was the benamidar for Sri P.N. Barthakur could not be interfered, with.

Having given our deep consideration to the arguments of counsel for the parties we are of the considered view that there is no force in either of the two contentions.

Section 253(4) of the Income Tax Act, 1961, deals with the filing of cross-objections. In addition to the aforementioned section, rule 22 of the Income-tax (Appellate Tribunal) Rules, 1963, also throws light upon the procedure to be adopted as to how cross-objections are to be treated. The relevant provisions of section 253 and rule 22 read as under:

"253(4). The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) has been preferred under subsection (1) or subsection (2) by the other party may notwithstanding that he may not have appealed against such order or any party thereof, within thirty days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in subsection (3)."

"Rule 22. A memorandum of cross-objections filed under sub section (4) of section 253 shall be registered and numbered as an appeal and all the rules, so far as may be, shall apply to such appeal. "

It is in the light of the aforementioned provisions that the question whether the assessee can, in cross-objections, impugn any part of the judgment of the appellate authority, arises for determination. Section 253(4), in our considered view, clearly envisages the filing of cross-objections both by the assessee as well as by the Assessing Officer against the order in appeal. Upon filing of such cross-objections it has been made obligatory upon the Appellate Tribunal to decide such memorandum of cross-objections as if it was an appeal. There is absolutely no ambiguity in the provisions made under subsection (4). Rule 22 makes it further clear that memorandum of cross-objections which has been, so filed under subsection (4) of section 253 shall be registered and numbered-as if it was an appeal. These two provisions stand on a better footing than the provisions made in Order 41, rule 22 of the Civil Procedure Code, which deals with filing of cross-objections. Whereas there is no provision in the Civil Procedure Code to number the cross-objection as an appeal, such a provision has been made by the rule-making authority in the Income-tax (Appellate Tribunal) Rules, 1963.

A combined reading of section 253(4) and rule 22 makes it abundantly clear that any party aggrieved against the order of the appellate authority can file a memorandum of cross-objections against any part of the order of the Deputy Commissioner (Appeals). In other words, cross objections need not, be confined to the points taken by the opposite-party in the main appeal. The words against any part of the order of the Deputy Commissioner" are wide enough to cover a situation where the Revenue has challenged the order of the Deputy Commissioner (Appeals) on the merits regarding the quantum of the tax liability, but the assessee in cross-objections can challenge the order of the Deputy Commissioner not only on the quantum of tax amount but on other points also.

In view of the aforementioned discussion it can safely be held on a point of law that there is absolutely .no difference between an appeal and a cross-objection. The only difference if at all one can be pointed out is that an appeal can be preferred within 60 days from the date of receipt of the order whereas a cross-objection can be filed within a period of 30 days of the date of service of appeal by the opposite-party.

Adverting to the second argument of counsel for the applicant, this Court need not go into the questions as the question involved is one of facts. Even if we are to go into detailed discussion, we are of the opinion that ignorance on the part of the daughter-in-law as to what securities had been pledged in the bank and as to how the repayments are to be made are no legal factors to come to the conclusion that she was benamidar for her father-in-law.

For the reasons recorded above, both the questions are answered in the affirmative and in favour of the assessee.

M. B.A./4028/ FC Question answered.