Chennai v. M/S.s.m.apparels Ltd., D

IN THE HIGH COURT OF JUDICATURE AT MADRAS Coram THE HONOURABLE MR. JUSTICE M.M.SUNDRESHandTHE HONOURABLE MR. JUSTICE N.ANAND VENKATESH T.C.(A). No.530 of 2010 Commissioner of Income Tax,Chennai. Chennai. .. AppellantvsM/s.S.M.Apparels Ltd.,D-9/1, MMDA Industrial Estate,Maraimalainagar,Chennai - 603 209. .. Respondent Appeal filed under Section 260A of the Income Tax Act, 1961against the order of the Income Tax Appellate Tribunal "D"Bench,Chennaidated04.12.2009passedinI.T.A.No.1474/Mds/2009 APPeal preferred to the high court againstorder of the Income Tax Appellate Tribunal Madras 'D' Benchdated 04/12/2009 in ITA No.1474/MAS/2009 Assessment year 2001-02commissioner of Income Tax (Appeals) V Chennai 600 034 ITANo.256/2006-2007 dated 22/07/2008 PAN/GIR No.AAFCS 2097B yearsof Assessment 2001-02 dated 22.07.2018 Assistant Commissioner ofIncomeTaxCompanycircleVI(I)chennai-34Gir.No./PAN/S.23/AAFCS 2097B years of Assessment 2001-02. dated31.03.2006 For Appellant:Mr.T.R.Senthil Kumarand Ms.K.G.UsharaniFor Respondent :No appearance JUDGMENT (Judgment of the Court was delivered by M.M.SUNDRESH, J.) https://hcservices.ecourts.gov.in/hcservices/ The Revenue has come up with the appeal by formulating thefollowing substantial question of law: Whether on the facts and circumstances of thecase, the Income Tax Appellate Tribunal was right inholding that the assessment order passed consequent tothe order of the Commissioner of Income Tax underSection 263 is ab initio void? 2.When the matter is taken up for hearing, learned counselappearing for the appellant would submit that as against theorder passed under Section 263 of the Income Tax Act, 1961, thisCourt was pleased to set aside the same and remit it back forfresh consideration to the Tribunal. This order beingconsequential, the same also will have to be set aside. 3.In T.C.(A) No.1527 of 2007 dated 22.02.2016, this Courtwas pleased to hold as under: "8.The question whether the netting off theinterest to the tune of Rs.9,47,657.22 was correct ornot and the question as to whether the Section 10Bcomputation was right or wrong was not gone into bythe Tribunal. If what the Commissioner says iscorrect, the order of the Assessing Officer wasobviously wrong. Therefore, the first requirementunder Section 263 of the Act stands satisfied. 9.If on facts what the Commissioner stated wascorrect that the total taxable income should be morethan what is reflected, then the error that crept into the order of the Assessing Officer, has obviouslybecome prejudicial to the interest of the Revenue.Therefore, the finding of the Tribunal that the twinrequirements were satisfied, is completely perverse.Interestingly, the Tribunal has nullified the decisionof the Supreme Court in M/s.Malabar Industrial CompanyVs. Commissioner of Income Tax (243 ITR 83) and drew awrong conclusion from the ratio laid down therein. 10.Therefore, the Tax Case Appeal is allowed andthe question of law is answered in favour of theDepartment. The matter is remitted back to theTribunal for an order on the merits. No costs." 4.This order being consequential and the earlier orderreferred supra having become final inter se parties, necessarilythe order under challenge will have to be set aside.Accordingly, the order dated 04.12.2009 is set aside and the taxcase appeal is allowed. No costs. Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant RegistrarToThe Income Tax Appellate Tribunal,"D" Bench, Chennai.Copy to1.The Assistant Commissioner of Income Tax,Company circle VI(I) Chennai-342.Commissioner of Income Tax Appeal (V)Chennai-34+1cc to Mr.T.R.Senthil Kumar, Advocate, S.R.No.48247 T.C.(A).No.530 of 2010VSNII(CO)GSP(27/08/2018)