Court In Vijaykumar M.hirakhanwala Huf v. Income-Tax Officer & Ors. Reported In 287 Itr 443

K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION (1) INCOME TAX APPEAL NO.967 OF 2007 (2) INCOME TAX APPEAL NO.968 OF 2007 (3) INCOME TAX APPEAL NO.963 OF 2007 (4) INCOME TAX APPEAL NO.966 OF 2007 (5) INCOME TAX APPEAL NO.654 OF 2007 The CIT-25 ..Appellant V/s. M/s.Mansi Enterprises ..Respondent ---- Mr.A.D.Kango & Mr.P.S.Sahadevan for the appellant. Dr.K.Shivram with Ajay R.Singh for the respondent. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Coram : F.I.Rebello & R.S.Mohite,JJ Date : 12.03.008. PC 1. These are appeals against a common order passed by the ITAT in respect of five Assessment Years 1995-96 to 1999-2000. Today only Income-tax Appeal by the ITAT in respect of five Assessment Years 1995-96 to 1999-2000. Today only Income-tax Appeal No.967/2007 and Income-tax Appeal No.968/2007 are on board. The other appeals are not on board. By consent of the parties, as the issue involved the same the papers are called for, taken on board and heard forthwith. 2. The Commissioner (Appeals) by a detailed order noted that assessees were seeking to reopen the assessment under Section 147 on the ground that Mrs.Ramaben Patel did not know anything about the : 2 : business of the firm and she was benami of Shri Vasant A.Patel, another partner of the firm. After considering the contentions, learned Commissioner (Appeals) also found that the loss received from the business does not exceed Rs.40 lakhs and as such the income from the above business will be estimated @ 8% of the gross receipt paid or payable by the assessee and taxpayer can voluntarily declare a higher income in his return. After considering the material on record in so far as section 147 is concerned, the Commissioner (Appeals) came to the conclusion that the assessment has been reopened on invalid ground and initiation of proceedings of reopening are bad. The Commissioner arrived at conclusion that assessee had fulfilled all the conditions laid down under Section 44AD. Reliance was placed on Circular dated 10.6.1994 of CBDT. In view of the finding recorded, allowed the appeal preferred by the assessee. 3. Revenue aggrieved, preferred an appeal before the Tribunal. Tribunal first noted the finding recorded by the Commissioner (Appeals). Thereafter considering the various contentions as urged before it on behalf of revenue, at paragraph-14 of the appeal memo the learned ITAT considered the issue as to whether the reopening of assessment under Section 147 is valid. After considering the facts on record and the judgment of this Court, it came to the : 3 : conclusion that there was no reasons to believe. He further held that merely because one of the partners of the firm Mrs.Ramaben Patel did not do anything for the firm is not a valid ground for reopening of the assessment. The Tribunal held that before invoking section 157, there ought to be reasons to believe. Reliance is placed on the judgment of this Court in Vijaykumar M.Hirakhanwala HUF Vs. Income-tax officer & Ors. reported in 287 ITR 443 (Bom) and in view of this finding recorded held that assessing officer could not have reasons to believe the income having escaped of assessment and consequently dismissed the appeal. 4. The findings recorded by the Commissioner (Appeals) as confirmed by the ITAT are purely findings of fact. The other ground raised is to the limitation of reopening assessment for some of the years. 5. In our opinion, considering that we agree with the findings recorded by the Commissioner (Appeals) and confirmed by ITAT. We do not propose to go into that issue. There is no merit in these appeals. The questions of law as framed in these appeals Court in Vijaykumar M.Hirakhanwala HUF Vs. Income-tax officer & Ors. reported in 287 ITR 443 (Bom) and in view of this finding recorded held that assessing officer could not have reasons to believe the income having escaped of assessment and consequently dismissed the appeal. 4. The findings recorded by the Commissioner (Appeals) as confirmed by the ITAT are purely findings of fact. The other ground raised is to the limitation of reopening assessment for some of the years. 5. In our opinion, considering that we agree with the findings recorded by the Commissioner (Appeals) and confirmed by ITAT. We do not propose to go into that issue. There is no merit in these appeals. The questions of law as framed in these appeals would not arise and consequently appeals dismissed. (R.S.Mohite,J) (F.I.Rebello,J) (R.S.Mohite,J) (F.I.Rebello,J)