Ita/150/2021 Of Commissioner Of Income Tax (Exemptions) Delhi v. Dabur Research Foundation

$~S-22 *IN THE HIGH COURT OF DELHI AT NEW DELHI+ITA 150/2021COMMISSIONER OF INCOME TAX(EXEMPTIONS) DELHI..... AppellantThrough:Mr. Abhishek Maratha, Advocate. versus DABUR RESEARCH FOUNDATION..... RespondentThroughThrough % Date of decision: 27[th]September, 2021 CORAM:HON'BLE MR. JUSTICE MANMOHANHON'BLE MR. JUSTICE NAVIN CHAWLAJ U D G M E N T MANMOHAN, J: (Oral) 1.The appeal has been heard by way of video conferencing. 2.Present Appeal has been filed challenging the order dated 10[th]February, 2020 passed by the Income Tax Appellate Tribunal (hereinafterreferred to as ‘ITAT’) in ITA No. 6566/Del/2015 for Assessment Year2007-08. 3.The questions of law proposed by the appellant-revenue in the presentappeal is as under:- (1)Whether in the facts and circumstances of the present case, ITATwas justified in the eyes of law in allowing the appeal of theassessee by ignoring the fact that the assessee has failed to complywith the precondition mentioned in Rule 5D of the Income TaxRules, 1962 for registration u/s 35(1)(ii) of the Act?was justified in the eyes of law in allowing the appeal of theassessee by ignoring the fact that the assessee has failed to complywith the precondition mentioned in Rule 5D of the Income TaxRules, 1962 for registration u/s 35(1)(ii) of the Act? (2)Whether in the facts and circumstances of the present case ITATwas justified in the eyes of law in holding that the reopening of theassessment was wholly unjustified?was justified in the eyes of law in holding that the reopening of theassessment was wholly unjustified? (3)Whether the impugned order passed by Income Tax AppellateTribunal is perverse both on law and facts?Tribunal is perverse both on law and facts? 4.Learned Counsel for the Appellant submits that the ITAT erred inallowing the appeal of the assessee by ignoring the fact that it had not filedthe list of donors along with auditor’s report for Assessment Year 2007-08and as such had failed to comply-with the precondition mentioned in Rule5D(4) of the Income Tax Act, 1961 (for short ‘Act’) for registration underSection 35(1)(ii) of the Act. He emphasies that the ITAT erred in holdingthat the reopening of the assessment was wholly unjustified. 5.A perusal of the paper book reveals that the original assessment wascompleted under Section 143(3) of the Act and there was no failure on thepart of the appellant to disclose fully and truly all material facts necessaryfor assessment.In fact, the statement of donations as received was verymuch available before the Assessing Officer at the time of originalassessment and consequently the assumption of jurisdiction under Section147 of the Act after four years based on the ground that it was not filedalong with the audit report is bad in law and has been assumed on technicalground not mandatory in nature. In the opinion of this Court, the stipulationunder Rule 5D(4) of the Act that the statement of donations shall be filedalong with audit report is not a mandatory condition and is considered tohave been complied with the moment the details of donation were filedbefore the Assessing Officer prior to the completion of assessment. Both theCIT (A) and ITAT have given concurrent findings to the said effect. Therelevant portion of the orders passed by the CIT(A) and ITAT arereproduced hereinbelow: A)Order dated 15[th]September, 2015 passed by CIT(A):- A)Order dated 15[th]September, 2015 passed by CIT(A):- “4.21 After considering all the facts and circumstances of thecase, I am of the view that there is no doubt that the copy ofaudited statement of donations received for the AY 2007-08 wasavailable at the time of completion of original assessment..Honorable Supreme Court in case of CIT V Nagpur HotelOwners' Association 2001 247 ITR 201 SC has held that if thedetails required to complete the assessment were available at thetime of original assessment then there is no requirement toinvoke the reassessment proceedings. The case of the Appellantis squarely covered by this decision of the Honorable SupremeCourt and accordingly the addition of Rs. 16,87,53,200/- madeby the AO during the reassessment u/s 147/143(3} is deleted.” B)Order dated 11[th]February, 2020 passed by ITAT:- “7.We have considered the rival submissions and do not findany justification to interfere with the Order of the Ld. CIT(A). Itis a fact that original assessment was completed under Section143(3) of the I.T. Act, 1961. The assessee furnished completedetails before A.O. at original assessment stage which includeslist of donors etc., for completion of the assessment under section35(1)(ii) of the I.T. Act. No new material was brought on recordat the time of reopening of the assessment. The A.O. merely onthe basis of the material already on record recorded reasons forreopening of the assessment. There is no failure on the part of theassessee to produce complete details at the original assessmentstage. The crux of the findings of the Ld. CIT(A) clearly showthat Ld. CIT(A) was satisfied with the explanation of assesseethat it is not a fit case of reopening of the assessment, though nospecific operative finding have been given in this regard.Ultimately, the Ld. CIT(A) allowed the appeal of assessee. Sinceassessee has raised point of reopening of the assessment and findmerit before the Ld. CIT(A), therefore, it would show that thegrounds of appeal raised by the assessee for reopening of theassessment has also been allowed. The Revenue has takenadjournment on 08.07.2019 seeking time to file revised ground ofappeal. Though the revised grounds are filed, but, again no ground have been taken to challenge the quashing of the re-assessment proceedings in the matter. The assessee forabundant precaution has filed application under Rule 27 of theI.T. Rules. The crux of the findings of the Ld. CIT(A) clearlyshow that it is a case of mere change of opinion and that re-assessment have been made after four years from the end of therelevant assessment year, after passing of the originalassessment order under section 143(3) of the I.T. Act, 1961.There is no failure on the part of assessee to disclose all thefacts truly and correctly which are required for passing of theassessment order. Therefore, reopening of the assessment waswholly unjustified and have been rightly quashed by the Ld.CIT(A) though no specific operative order have been passed inthe matter, but when the Ld. CIT(A) has allowed the appeal ofassessee on both the grounds, it would indicate that re-assessment have been quashed by the Ld. (A), therefore,application of assessee under Rule 27 of the I.T. Rules, 1962, isallowed.Therefore,appealofRevenuewouldnotbemaintainable because no ground have been raised by theRevenue challenging the reopening of the assessment, despitegiving sufficient opportunity to the Revenue. Further there is nomerit in the appeal of the Revenue because complete detailsrequired for completion of the assessment were filed at the timeof original assessment. Therefore, the issue is covered byJudgment of Hon'ble Supreme Court in the case of CIT vs.,Nagpur Hotel Owners' Association (supra). There is, thus, nomerit in the appeal of the Revenue and the same is accordinglydismissed. 6.Keeping in view the concurrent findings of fact by the CIT(A) and theTribunal, this Court is of the view that the said findings should not be lightlyinterfered with.In fact, the Supreme Court in the case of Ram KumarAggarwal & Anr. vs. Thawar Das (through LRs), (1999) 7 SCC 303 hasreiterated that under Section 100 CPC the jurisdiction of the High Court tointerfere with the orders of the Courts below is confined to hearing on substantial question of law and interference with finding of the fact is notwarranted if it involves re-appreciation of evidence. Further, the SupremeCourt in State of Haryana & Ors. vs. Khalsa Motor Limited & Ors., (1990)4 SCC 659 has held that the High Court was not justified in law in reversing,in second appeal, the concurrent finding of the fact recorded by both theCourts below. The Supreme Court in Hero Vinoth (Minor) vs. Seshammal,(2006) 5 SCC 545 has also held that “in a case where from a given set ofcircumstances two inferences of fact are possible, the one drawn by thelower appellate court will not be interfered by the High Court in secondappeal. Adopting any other approach is not permissible.” It has also heldthat there is a difference between question of law and a “substantial questionof law”. Consequently, this Court finds that there is no perversity in thefindings of the CIT(A) and ITAT. Accordingly, the present appeal isdismissed. 7.The order be uploaded on the website forthwith. Copy of the order bealso forwarded to the learned counsel through e-mail. MANMOHAN, J SEPTEMBER 27, 2021/TS NAVIN CHAWLA, J