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Thursday 11 February 2016

Cross objection before ITAT may be filed on the issues decided against the assessee or to support the order passed by CIT A. Where Cross objection is in support of CIT A order, it shall stand dismissed along with revenue’s appeal due to low tax effect circular because it has no independent existence. However if cross objection is filed against some part of the order of CITA, it can not be dismissed along with dismissal of appeal of revenue due to low tax effect circular. Contention that appeal stands dismissed in limine is illogical in such situation. Ajay Kalia[2016] 66 taxmann.com 99 (Delhi - Trib.) JANUARY 7, 2016

There can be one possibility when the cross objection is filed by the other side in support of the order passed by the CIT(A) and the other possibility can be of filing CO against the issues decided against it in the impugned order. There can be still one more possibility when the other side, apart from supporting the impugned order appealed against, may also assail certain other issues decided against it. This divulges that the CO can be filed by the other side, on receipt of notice of appeal having been filed by the appealing party, on any issue de hors the issued raised by the appealing party.

On filing, a CO assumes the character of an appeal, which is apparent from section 253(4), which provides that: 'such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3) or sub-section (3A)'. Rule 22 of the ITAT Rules, 1963 also provides that: '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. This shows that a cross objection is treated in no way different from a separate appeal by the tribunal.
The scope of a Cross objection is not restricted only to the points decided against the appealing party, but, also extends to the points decided against the other side. The mandate of the provision is quite vast and is unlike the prescription of rule 27 of the ITAT Rules, which is limited in its realm empowering the respondent to support the impugned order by providing that: 'The respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him.
Contention that the Cross objections filed by the assessees should be invariably dismissed in limine for the reason of the dismissal of the appeals of the Department because of low tax effect, does not stand to any logic in all circumstances. In a situation where the cross objection is in support of the impugned order, then, of course, such a cross objection has no independent existence and is liable to be dismissed as infructuous pursuant to the dismissal of the appeal of the Revenue. However, in a case where the cross objection filed u/s 253(4) is on an issue independent of the appeal filed by the Revenue, then, such a cross objection cannot be dismissed simply on the ground of dismissal of the appeal by the Revenue involving low tax effect. Acceptance of this contention of the ld. DR would amount to snatching a valuable right given by the statute to the assessee to file and pursue an appeal before the Tribunal irrespective of any tax effect.[Para 7,8,9 of the Judgement]

Ajay Kalia[2016] 66 taxmann.com 99 (Delhi - Trib.) JANUARY  7, 2016 

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