Commissioner Of Income Tax, Central-Iii v. M/S.diamond “R” Us

bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1124 OF 2012 Commissioner of Income Tax, Central-III … Appellant v/s M/s.Diamond “R” US. … Respondent Mr.Charanjeet Chanderpal for the appellant. MR.a.k. Jasani for the respondent. CORAM: S.C. DHARMADHIKARI & G.S. KULKARNI, JJ. DATED : 6TH MARCH, 2014 P. C. : 1Heard Mr.Chanderpal on behalf of the appellant. 2Perused the order passed by the Income Tax Appellate Tribunal dated 2[nd] January, 2012 in Income Tax Appeal No.2090/Mum/ 2011. The assessment year in question is 2007-2008. 3The issue for consideration of the Tribunal and in the appeal of the revenue was that the assessing officer noticed that the assessee claimed deduction of Rs.64,41,673/- on account of loss being exchange difference on refund of customer's advance. The assessing officer also noticed the debit balance of capital account and figures entered in para 2 of the Income Tax Appeal. There was also a transaction with one Nirav D. Modi and it was noticed by the Appellate Tribunal as also the Assessing Officer. It was in this back drop that the assessing officer was of the view that the advances received from the customers have not been used for the purposes of business and accordingly disallowed. The assessee carried the matter in appeal before the Commissioner of Income Tax (Appeals) and he followed the order of the Tribunal for the assessment year 2006-2007 in assessee's own case for deleting the addition in the assessment order. 4The Tribunal while dismissing the revenue's appeal relied upon its order for the assessment year 2006-07, the conclusion drawn by the Tribunal and based on its own order and in relation to the same assessee, in our view, cannot give rise to substantial questions of law and particularly in the facts and circumstances of the present case. The assessment was the same for the prior assessment year. The stand of the department and equally the exercise undertaken by the assessing officer was identical. It is in dealing with that stand, the Tribunal made the observation and it has been reproduced in the impugned order. 5 We are, therefore, of the opinion that having accepted the findings with regard to the same assessee and for the prior assessment year, in the present appeal also no substantial question of law would arise for consideration and determination of this Court. The appeal is, therefore, devoid of any merits. 6Mr.Chanderpal's submission is that the department cannot be held to be bound by the order passed in the prior assessment year and in relation to the same assessee. He submits that, if for the subsequent years a mistake has been noticed and that the revenue wants to correct the same, then, the Tribunal should have permitted the department to substantiate their grievances with better particulars. We are unable to accept this submission for the simple reason that, in the facts of the present case and in relation to the same assessee, the very stand, which has been noted by the Tribunal in the impugned order, was taken and for a prior assessment year. The very transaction and of the nature referred to in paragraph 2 of the impugned order is in the prior assessment year as well. In these circumstances, this was not an exercise which the Tribunal found as permissible in the peculiar facts and circumstances of the case. Hence, the appeal does not give rise to any substantial question of law and particularly in the light of the submission of Mr. Chanderpal. The appeal is therefore dismissed. (G.S. KULKARNI, J.) (S.C.DHARMADHIKARI, J.)