Assistant Commissioner Of Income Tax, Circle 2, Bilaspur v. M/S Vishwakarma Manendragarh (Cg

DT HIGH COURT OF CHHATTISGARH AT BILASPURTax Case (Income Tax Appeal) No.48 of 2008 Assistant Commissioner of IncomeTax, Circle 2, Bilaspur APPELLANT: VersusM/sVishwakarmaManendragarh (CG) RESPONDENT: Fabricators, JUDGMENT FOR CONSIDERATION Sd/- q.-10-2010 HON'BLE SHRI R.N. CHANDRAKAR, J Sd/-R.N. ChandrakarJudge 3 -^ POST FOR JUDGMENT ON 7 OCTOBER, 2010 Sd/-Dhirendra MishraJudge u - hiah COURT OF CHHATTISGARH AT BILASPURTax Case (Income Tax Appeal) No.48 of 20^8 APPELLANT: Assistant Commissioner of IncomeTax, Circle 2, Bilaspur Vers.usM/sVishwakarmaManendragarh (CG) RESPONDENT: Fabricators, Present:Shri Rajeev Shrivastava, counsel for the appellant.ShriShashankDubey,Sr.AdvocatewithShriPravinTulsiyan,Advocate for the respondent. Division Bench: Hon'ble Shri Dhirendra Mishra &Hon'ble Shri R.N. Chandrakar, JJ. JUDGiB/IENT(Delivered on ^''October, 2010) The following judgment of the Court was delivered by Dhirendrahflishra, J. 1. This appeal has been admitted on the following substantial question of law:- "Whether"changetheconceptofofopinion"istheconceptofofopinion"isapplicable to the provisions of section 263 especially asthe order of the Commissioner of Income Tax was notbased on any change of opinion but on the errorshighlighted in the order?"the order of the Commissioner of Income Tax was notbased on any change of opinion but on the errorshighlighted in the order?" 2: At the outset, Shri Shashank Dubey, learned senior counsel appearingon behalf of the respondent/assessee submitted that the respondenthas raised preliminary objection with regard to the maintainability of theappeal on the ground that theinstant appeal has been filed by theAssistant Commissioner of Income Tax, Circle-2, Bilaspur whereasunder sub-section (2) of Section 260-A of the Act, the appeal can befiled before the High Court only by the Commissioner or the Chief -%'i7Avf!fS"--ff ijAs!'^'isaaa^ ^^ Commissioner of the Income Tax or an assessee and none else.Hefuri:her submitted that the Assistant Commissioner as defined undersub-section (9A) of Section 2 of the Act means a person appointed tobeanAssistantCommissionerofIncomeTaxoraDeputyCommissioner of Income Tax under sub-section (1) of Section 117whereas, the Commissioner as defined under sub-section (16) ofSection 2 means a person appointed to be a Commissioner of IncomeTax under sub-section (1) of Section 117.Sub-section (2) of Section260A provides that Chief Commissioner or Commissioner or anassessee aggrieved by any order passed by the appellate Tribunalmay file an appeal to the High Court. 3.Relying upon the decision of 7 Judge Bench of the Supreme Court inIn re. Art 143 Constitution of India and Delhi Laws Act (1912) etc.{AIR (38) 1951 SC 332}, it was argued that if authority is given anypower for doing any act by legislation, then such act is to be done inthat specific manner by that person and performance in any manner orby any person other than specified is impliedly prohibited. 4.On the other hand, learned counsel for the appellant would argue thatintheinstantcase,inreplytothepreliminaryobjection,theCommissioner of Income Tax has filed his affidavit and averred that theCommissioner of Income Tax has filed Vakalatnama for presenting anappeal and the specific question of law has been approved by theChief Commissioner of Income Tax.In the cause title of memo ofappeal, Assistant Commissioner of Income Tax has been mentionedas appellant because appeal before the Tribunal preferred by theassessee was titled as M/s Vishwakarma Fabricators Vs. Assistant Commissionerof Income Tax and, therefore, while challenging theorder of the Tribunal by way of appeal before the High Court, AssistantCommissioner has been mentioned as appellant. 4.On the other hand, learned counsel for the appellant would argue thatintheinstantcase,inreplytothepreliminaryobjection,theCommissioner of Income Tax has filed his affidavit and averred that theCommissioner of Income Tax has filed Vakalatnama for presenting anappeal and the specific question of law has been approved by theChief Commissioner of Income Tax.In the cause title of memo ofappeal, Assistant Commissioner of Income Tax has been mentionedas appellant because appeal before the Tribunal preferred by theassessee was titled as M/s Vishwakarma Fabricators Vs. Assistant Commissionerof Income Tax and, therefore, while challenging theorder of the Tribunal by way of appeal before the High Court, AssistantCommissioner has been mentioned as appellant. 5.In In re. Art 143 Constitution of India and Delhi Laws Act (1912)ete. (Supra), the President of India made a reference underArticle 143of the Constitution asking the Court's opinion on the 3 questionsrelating to constitutional validity of certain provisions of Delhi Laws Act,1910, Ajmer-Merwara (Extension of Laws) Act, 1947 and the part CState (Laws) Act, 1950 or any of the provisions thereof. The questionswere in respect of delegation of legislative power.The Hon'bleSupreme Court, while considering the power of Parliament to delegateits essential legislative function to others, whether the State Legislatureor Executive Authorities, observed that if authority is given expressly byaffirmative words upon a defined condition, the expression of thatconditionexcludes the doingof that act authorizedunder othercircumstances than those as defined.ete. (Supra), the President of India made a reference underArticle 143of the Constitution asking the Court's opinion on the 3 questionsrelating to constitutional validity of certain provisions of Delhi Laws Act,1910, Ajmer-Merwara (Extension of Laws) Act, 1947 and the part CState (Laws) Act, 1950 or any of the provisions thereof. The questionswere in respect of delegation of legislative power.The Hon'bleSupreme Court, while considering the power of Parliament to delegateits essential legislative function to others, whether the State Legislatureor Executive Authorities, observed that if authority is given expressly byaffirmative words upon a defined condition, the expression of thatconditionexcludes the doingof that act authorizedunder othercircumstances than those as defined. 6.However, the instant appeal is directed against the order of theTribunal passed in appeal preferred by the assessee against the orderof CIT (A). Since the parties were described by the assessee before"M/stheTribunalasVishwakarmaFabricatorsVs.AssistantCommissioner of Income Tax,Circle-2,Bilaspur",intheappealpreferred by the revenue, the appellant has referred as AssistantCommissioner as per cause title of the impugned order. 7. Takinginto consideration the affidavit of Commissioner of Income Taxwhich has not been rebutted by the assessee that the instant appealwhich has not been rebutted by the assessee that the instant appeal r'^.-A-^a has been filed as per authorization ofthe Commissioner of Income Taxand the question of law has been finalized by the Chief Commissionerof Income Tax, we are of the opinion that the appeal cannot bedismissed at the threshold on the ground that cause title in the memoof appeal mentions Assistant Commissioner as appellant. 8.Briefly stated facts of the case are that a survey was conducted underSection 133-A of the Income Tax Act, 1961 (for short 'the Act') in thebusiness premises of the assessee on 19-1-2005.The assessee filedhis return of income for the assessmentyear 2005-06 disclosing thetotal income of Rs.14,69,286/-.The Assessing Officer completed theassessment under Section 143(3) on total income of Rs.15,30,750/-and made an adhoc addition ofRs.61,140/-. 9.On examination of the record, CIT found certain infirmities in theassessment of the income as detailed in paragraph -2 of its order. 8.Briefly stated facts of the case are that a survey was conducted underSection 133-A of the Income Tax Act, 1961 (for short 'the Act') in thebusiness premises of the assessee on 19-1-2005.The assessee filedhis return of income for the assessmentyear 2005-06 disclosing thetotal income of Rs.14,69,286/-.The Assessing Officer completed theassessment under Section 143(3) on total income of Rs.15,30,750/-and made an adhoc addition ofRs.61,140/-. 9.On examination of the record, CIT found certain infirmities in theassessment of the income as detailed in paragraph -2 of its order. lO.Accordingly, a notice under Section 263 (1) of the Act was issued tothe assessee.On receipt of notice from the CIT, the assessee filedwritten submissions. After affordingopportunity of hearing to theassessee and considering its written submissions, it was found thatcertain aspects have not been taken up by the AO as detailed inparagraphs 5.1, 5.1.1, 5.1.2, 5.2, 5.3, 5.3.1, 5.4 and 5.5. It was heldthat the assessment was completed by the AO in utter haste, failing inthe process both to examine the facts properly and also in initiatingpenalty proceedings for the concealment of particulars of income bythe assessee.Accordingly, it was held that the order of the A.O. iserroneous and prejudicial to the interest of the revenue and the order of assessment was cancelled under Section 263 of the Act withdirection to the A.O. to frame it afresh.It was further directed thatwhile passing the order de novo, the A.O. will examine the issuesmentioned in the order keeping in view the actions contemplated underSection 271 (1 )(c) of the Act. 11. The assessee went up in appeal against the order of the CIT beforethe Tribunal, however, the Tribunal cancelled the order of the CIT withan observation that "a close perusal of the relevant documents andevidences, which have been placed before us in form of paper books,makes it clear that the assessee has placed all the documents andevidences in respect of these items before the A.O. and the A.O. afterperusingthesamehascompletedtheassessment.Since theassessment under section 143(3) was completed by the A.O. only afterperusing the relevant details and evidences placed by the assessee,the action of Id. CIT in invoking the provision under section 263 isnothingbutisbasedonmere change of opinion,whichisnotpermissibleunder thelaw asheldby thedifferentCourtsandTribunals." 12. Learned counsel for the appellant submitted that CIT after carefulexamination of the record has detailed various aspects in its orderwhich clearly points out that assessment was completed in haste andwithout proper enquiry. The order under Section 263 was passed afterdue notice and after affording opportunity of hearing to the assessee,however, the ITAT without dealing with various aspects detailed in theorder of the CIT has cancelled the order with an observation that the order under Section 263 of the Act is nothing but is based on merechange of opinion which is not permissible under the law. 13. Relying upon decisions of this Court in the matters of Commissionerof Income Tax, BilaspurVs. Harish Kumar Shah {Tax Case No.46 of2008, decided 6n 8January, 2010} and Commissionerof IncomeTax, Bilaspur (CG) Vs. Dr. Smt. Anju Goyal {Tax Case No.36/2008,decided on 1September, 2009}, it was argued that the present caseis squarely covered by the law laid down by this Court in the aforesaidjudgments. 14. Heard learned counsel for the parties. l5.After going through the orders of the A.O. as also of the CIT passedunder Section 263 (1) and the impugned order, we find that theTribunal, without adverting to the reasons assigned by the CIT forcanceling the order of assessment passed by the A.O., has cancelledthe order of the CIT on the ground that the same is based on merechange of opinion. The issue involved in this appeal has already beenconsidered and decided by this Court in the matters of Dr. Smt. AnjuGoyal and Harish Kumar Shah (Supra). 14. Heard learned counsel for the parties. l5.After going through the orders of the A.O. as also of the CIT passedunder Section 263 (1) and the impugned order, we find that theTribunal, without adverting to the reasons assigned by the CIT forcanceling the order of assessment passed by the A.O., has cancelledthe order of the CIT on the ground that the same is based on merechange of opinion. The issue involved in this appeal has already beenconsidered and decided by this Court in the matters of Dr. Smt. AnjuGoyal and Harish Kumar Shah (Supra). l6.For the aforesaid reasons, we are of the opinion that the impugnedorder of the ITAT cannot be sustained.Accordingly, the same ishereby set aside. The matter is remanded to the Tribunal to decide theappeal preferred by the assessee against the order of CIT afresh by areasoned order after affording opportunity of hearing to the^arti^___