S. 254(1): Unnecessary remand by the ITAT causes prejudice and amounts to a failure to exercise jurisdiction

In AY 1997-98 the assessee claimed deduction for service charges paid to a connected party. The AO & CIT(A) disallowed a part of the expenditure on the ground that benefit from the expenditure was derived by the bottler & brand owner. The Tribunal, instead of deciding the issue, remanded the matter back to the AO for fresh consideration. The assessee filed a Writ Petition on which the High Court held (290 ITR 464) that as the CIT(A) had given specific grounds for the disallowance, the Tribunal ought to have decided the specific issues on merits and not simply remanded it. Thereafter, the Tribunal decided the issue on merits and allowed the assessee’s claim (116 TTJ 880). In AY 1998-99, though the CIT(A)’s order was passed on the same date as the order passed for AY 1997-98 and the Tribunal was aware of the High Court’s order for AY 1997-98, it still remanded the issue to the AO for fresh consideration. The assessee filed a MA which was dismissed on the ground that the remand order was a “conscious” decision and not an “apparent mistake”. On a Writ Petition filed by the assessee HELD by the High Court:

The Tribunal should not have refused to consider and decide the issue relating to service charges, more so, when an identical view taken by it earlier has not found favour of this Court. This Court repeatedly reminded the Tribunal of its duty as a last fact finding authority of dealing with all factual and legal issues. The Tribunal failed to take any note of the caution which has been administered by this Court and particularly of not remanding cases unnecessarily and without any proper direction. A blanket remand causes serious prejudice to parties. None benefits by non-adjudication or non-consideration of an issue of fact and law by an Appellate Authority and by wholesale remand of the case back to the original authority. This is a clear failure of duty which has to be performed by the Appellate Authority in law. Once the Appellate Authority fails to perform such duty and is corrected on one occasion by this Court, and in relation to the same assessee, then, the least that was expected from the Tribunal was to follow the order and direction of this Court and abide by it even for this later assessment year. If the same claim and which was dealt with by the Court earlier and for which the note of caution was issued, then, the Tribunal was bound in law to take due note of the same and follow the course for the later assessment years. We are of the view that the refusal of the Tribunal to follow the order of this Court and equally to correct its obvious and apparent mistake is vitiated as above. It is vitiated by a serious error of law apparent on the face of the record. The Tribunal has misdirected itself completely and in law in refusing to decide and consider the claim in relation to service charges.