Itxa/1210/2017 Of Procter And Gamble Hygiene And Healthcare Ltd v. The Commissioner Of Income Tax -8

Sonali Kilaje IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1210 OF 2017 Procter and Gamble Hygiene and Healthcare Limited..Appellantv/s.Commissioner of Income Tax - 8..Respondent Mr. Farokh Irani a/w. Ms. Rupali Vasaikar i/b. Rajesh Shah & Co. for theAppellant. Mr. Tejveer Singh for the Respondent. P. C:- CORAM: UJJAL BHUYAN, & MILIND N. JADHAV, JJ.DATE : FEBRUARY 4, 2020 1.Heard Mr. Irani, learned counsel for the appellantand Mr. Tejveer Singh, learned standing counsel, revenue forthe respondent. 2.This appeal has been fled under Section 260A of theIncome Tax Act, 1961 ("the Act" for short) against the orderdated 30.11.2016 passed by the Income Tax Appellate Tribunal, 4-ITXA-1210-17.doc “H” Bench, Mumbai ("Tribunal" for short) in ITA No.4866/Mum/2015 for the Assessment Year 2008-09. 3.The appeal has been preferred projecting thefollowing questions as substantial questions of law : “(1) Whether the Tribunal was correct, in the facts of the case and in law, in rejecting the appeal of the appellant by not condoning the delay ? (2)Whether the order dated 30[th] November, 2016 passed by the Tribunal is perverse as the same is passed without appreciating the materials fled before it in right perspective ?” 3.1.From the above, it is evident that the issue involvedin this appeal is non-condonation of delay in fling of the relatedappeal under Section 254 of the Act by the appellant before theTribunal. From the above, it is evident that the issue involved 4.Before adverting to the impugned order passed bythe Tribunal, relevant facts are briefy stated as under : 4-ITXA-1210-17.doc 4.1.For the Assessment Year under consideration,Assessing Oficer passed the assessment order on 01.02.2012.In the said assessment order certain deductions were allowedunder Section 80IC of the Act. 4.2.The jurisdictional administrative Commissioner i.e.Commissioner of Income Tax -8, Mumbai was of the view thatthe Assessing Oficer had wrongly allowed deduction underSection 80IC of the Act. He was of the further view that theassessment order so made was erroneous and prejudicial to theinterest of the revenue. Accordingly, he invoked jurisdictionunder Section 263 of the Act and vide order dated 31.03.2014set aside the assessment order by directing the AssessingOficer to pass fresh assessment order by taxing the interestincome earned by the petitioner on the amount covered by thededuction sought for under Section 80IC, under the head"income from other sources". 4.3.It is stated that following the order passed by thejurisdictional administrative Commissioner under Section 263of the Act, the Assessing Oficer passed the consequential Sonali Kilaje assessment order dated 09.06.2014. Against the assessmentorder dated 09.06.2014, petitioner preferred appeal before theCommissioner of Income Tax (Appeals)-17, Mumbai i.e. the frstappellate authority. However, by the appellate order dated28.08.2015, the frst appellate authority dismissed the appealof the petitioner. Aggrieved thereby petitioner preferredappeal before the Tribunal which was registered as ITA No.5096/Mum/2015. In the meanwhile, petitioner having realisedthat the order passed by the jurisdictional administrativeCommissioner under Section 263 of the Act had remainedunchallenged, belatedly fled appeal before the Tribunal whichwas registered as ITA No. 4866/Mum/2015. In the processthere was delay of 450 days. 4.4.Petitioner fled an application before the Tribunal forcondonation of delay in fling ITA No. 4866/Mum/2015 and insupport thereof also fled an afidavit dated 12.09.2016explaining the delay. Both the appeals were heard togetherand by the common order dated 30.11.2016 both the appealswere dismissed. In so far ITA No. 4866/Mum/2015 isconcerned, the same was dismissed as being time-barred as the 4.4.Petitioner fled an application before the Tribunal forcondonation of delay in fling ITA No. 4866/Mum/2015 and insupport thereof also fled an afidavit dated 12.09.2016explaining the delay. Both the appeals were heard togetherand by the common order dated 30.11.2016 both the appealswere dismissed. In so far ITA No. 4866/Mum/2015 isconcerned, the same was dismissed as being time-barred as the 5.In the present appeal we are concerned with thatportion of the order dated 30.11.2016 dealing with non-condonation of the delay in fling ITA No. 4866 of 2015resulting in dismissal of the appeal as time barred. 6.On going through the relevant portion of the orderpassed by the Tribunal, we fnd that Tribunal did not accept thecontention of the appellant that it was under a bonafde beliefthat since it had fled appeal against the consequential order ofassessment as afirmed by the frst appellate authority, itsinterest would be protected and therefore there was no need toindependently challenge the order under Section 263. 7.We feel that when Tribunal had entertained theappeal arising out of the consequential assessment, it was notjustifed on the part of the Tribunal to have rejected the appealfled by the appellant against the order passed by thejurisdictional administrative Commissioner under Section 263of the Act because that was the very foundation of the 8.In the light of the above, we are of the view that itwould be in the interest of justice, if the delay in fling ITA No.4866/Mum/2015 is condoned and the said appeal is heard onmerit by the Tribunal. 9.Consequently, we set aside the order dated30.11.2016 passed by the Tribunal in so far it pertains to ITANo. 4866/Mum/2015. Delay in fling the said appeal iscondoned and the matter is remanded back to the Tribunal forhearing the appeal on merit in accordance with law after givingdue opportunity to the parties. Accordingly, the two substantialquestions of law are answered in favour of the assessee andagainst the revenue. 10.However, we would like to add that appellant shouldpay cost of Rs.25,000/- to the Maharashtra State Legal ServicesAuthority, receipt of which should be placed before theTribunal for rehearing of Income Tax Appeal No.4866/Mum/2015. Sonali Kilaje 11.Consequently, appeal is allowed. (MILIND N. JADHAV, J.) (UJJAL BHUYAN,J.)