D.b. Income Tax Appeal v. Manoj Kumar Johari

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 113 / 2012 Commissioner of Income Tax Jaipur-III, Statue Circle, C-Scheme Jaipur ----Appellant Versus Manoj Kumar Johari Proprietor M/s the Art Place, Ramgarh, Shekhawatti, Sikar ----Respondent D.B. Income Tax Appeal No. 114 / 2012 Commissioner of Income Tax, Jaipur-IIIStatue Circle, C-Scheme, Jaipur ----Appellant Versus Manoj Kumar Jhori, Proprietor, M/s The Art Palace, Ramgarh Shekhawati, Sikar. ----Respondent _____________________________________________________ For Appellant(s) : Mr. Sameer Jain with Mr. Daksh PareekFor Respondent(s) : Mr. Sanjay Jhanwar with Ms. Archana _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Order 29/08/2017 By way of the appeals, the appellant has assailed thejudgment and order of the Tribunal whereby the Tribunal hasdismissed the appeals. This Court while admitting the matter framed the following question of law:- In DBITA No. 113/2012 & In DBITA No.114/2012 “Whether the Tribunal was justified in the factsand circumstances in allowing relief ofexemption under Section 10BA of the Act evenwhen the substanttive and material conditionswhich was pre-requisite were not fulfilled, on thebasis of appellants own case in A.Y. 2005-2006which was based on different point and ispending in appeal before Hon’ble High Court u/s260A of the Act?” Counsel for the appellant contended that the Tribunal hasseriously committed an error in confirming the order of CIT(A) andwrongly reversed the view taken by the AO. Counsel for the respondent has relied upon the decision ofthis Court in case of CIT vs. Manoj Kumar Johri in Tax Appeal No.243/2011 decided today wherein it has been observed as under:- “Before proceeding with the matter, whether theTribunal was right in setting aside the orderunder Section 263 which has been passed bythe CIT(A), that question has been consideredby the Tribunal in Appeal No.243/2011 and thesame was argued by Mr. Sameer Jain. TheTribunal while discussing the issue has reliedupon different decisions of the High Court andafter considering in detail has come to theconclusion that while invoking the provisionsunder Section 263 of the Act, the assessmentorder is prejudicial to the interest of revenue.The subsequent proceedings which took placeon 24.09.2008 could not be relied upon. Takingsupport of Section 263 (1)(b), the concept ofrecord is the record which was available withthe A.O. at the time of assessment. If thecontention which has been raised by Mr. Jain istaken into consideration, no assessee will beassessee. If the subsequent events to theassessment order is taken into considerationthen the scope of Section 263 will be enlarged.In that view of the matter, we are of the opinion that the record which was available with theA.O. is required to be taken into considerationand the tribunal while considering the matterhas taken into consideration the sevendocuments, more particularly D.L.C. Certificatewhich could be procured easily and the otherdocuments like export licence which has beengranted w.e.f. 02.09.2002 and registrationcertificate granted by C.T.O. w.e.f. 26.08.2002.He has also produced the muster roll register. In that view of the matter, the tribunal hasconsidered the complete facts in detail. It willnot be appropriate to re-appreciate the facts,more particularly when the tribunal hasobserved that the discussion which has beendone by the A.O. have not been specificallyrebutted by the Department. In that view of the matter, we are of the opinionthat the view taken by the Tribunal is just andproper. The issue is required to be answered infavour of the assessee against the department.” In that view of the matter, the issue is answered in favour of In that view of the matter, the tribunal hasconsidered the complete facts in detail. It willnot be appropriate to re-appreciate the facts,more particularly when the tribunal hasobserved that the discussion which has beendone by the A.O. have not been specificallyrebutted by the Department. In that view of the matter, we are of the opinionthat the view taken by the Tribunal is just andproper. The issue is required to be answered infavour of the assessee against the department.” In that view of the matter, the issue is answered in favour of the assessee against the department. The appeals stand dismissed. (INDERJEET SINGH)J. (K.S.JHAVERI)J. A.Sharma/125-126