Itxa 1210.12 Os.doc v. Itxa 1210.12 Os.doc

k IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1210 OF 2012 The Commissioner of Income Tax - 2 ...Appellant.V/s.HV Transmissions Ltd. ...Respondent. Mr. Suresh Kumar for the Appellant.Mr. Mandar Vaidya i/b Mr. Srihari Iyer for the Respondent. CORAM:S.C. DHARMADHIKARI ANDA.A. SAYED, JJ. DATED : 5 NOVEMBER, 2014. P.C.: 1This Appeal by the Revenue challenges the order passed by the Income Tax Appellate Tribunal dated 11[th] April, 2012 for Assessment Years 2004-2005 and 2005-2006. The Assessee was aggrieved and dissatisfied with the order passed by the Assessing Officer re-opening the Assessment. The Assessing Officer passed an Assessment Order and subsequently reopened it on 26[th] March, 2008. Thus the assessments originally completed on dated 16[th] October, 2006 was subsequently reopened by issuance of notice under section 148 and proceedings in that behalf under section 147 of both of the Income Tax Act, 1961 on 26[th] March, 2008. The reopening of the assessment has been on two counts i) provision for deferred tax has not been added k that for the purpose of book profit computing under section 115JB in the assessment under section 143(3) and ii) higher unabsorbed depreciation for assessment year 2001-2002 carried forward in the assessment under section 143(3) of the Income Tax Act, 1961. The Assessee offered an explanation by pointing out that firstly this is a reopening on the same set of facts and material and therefore, vitiated in terms of the law laid down by the Hon’ble Supreme Court in the case of the Commissioner of Income Tax vs. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC). Thus it is based on change of opinion. The Assessee also pointed out that in so far as the first reason for reopening the assessment is concerned the Assessee had explained that the issue was specifically raised by the Assessing Officer during the assessment under section 143(3) in response to which the Assessee gave detailed Reply by letter dated 7[th] September, 2006. The explanation was accepted and Assessing Officer has not added back the provision for deferred tax for the purpose of book profit computation under section 115JB of the Income Tax Act, 1961. As far as unabsorbed depreciation for Assessment Year 2001-2002 the argument was that higher depreciation had not been allowed to be carried forward in the assessment order under section 143(3) of the Income Tax Act. In view of the fact that the assessment was reopened later on and that reopening was also quashed. The assessment order k under section 147 for Assessment Year 2001-2002 had been passed on 27th December 2006. The Assessment Order under section 143(3) for the assessment year in question namely, 2004-2005 has been passed on 16[th] October, 2006. Even that order has been quashed by the Tribunal on 7[th] October 2011. The Tribunal may have referred to the judgments in the case of CIT vs. Kelvinator and Asian Paints Ltd. vs. DCIT & Another etc. But we found from a reading of the order impugned in this Appeal that the conclusion of the Tribunal does not rest only on this aspect. The Tribunal proceeds to then hold that so far as unabsorbed depreciation is concerned the Tribunal in the Assessee’s own case for Assessment Year 2001-2002 in Income Tax Appeal Nos.2203/MUM/2010 and 2476/MUM/2010 passed an order on 7[th] October 2011 holding that initiation of the reassessment proceedings itself was bad in law. The reassessment completed in pursuance thereof is liable to be quashed. 2We are therefore, of the view that in the light of this categorical finding of the Tribunal and the reassessment being based on some subsequent events that the present Appeal does not raise any substantial question of law. The Tribunal’s finding of fact at page 4 is therefore not vitiated by perversity or any error of law apparent on the face of the record. The Appeal is therefore dismissed. katkam k 2We are therefore, of the view that in the light of this categorical finding of the Tribunal and the reassessment being based on some subsequent events that the present Appeal does not raise any substantial question of law. The Tribunal’s finding of fact at page 4 is therefore not vitiated by perversity or any error of law apparent on the face of the record. The Appeal is therefore dismissed. katkam k 3It may be that the order passed on 7[th] October 2011 is subject matter of challenge in an Appeal being Income Tax Appeal No.756 of 2012 at the instance of the Revenue and that Appeal is admitted by this Court. However, so long as the order dated 7[th] October, 2011 was not set aside, the Tribunal while passing the impugned order could have relied on the same. Precisely, that had been done in the instant case and therefore, all the more the Appeal does not raise any substantial question of law. (A.A. SAYED, J.) (S.C. DHARMADHIKARI, J.)