Itxa/1272/2013 Of Reckitt Piramal Pvt. Ltd v. The Commissioner Of Income Tax -8

kps IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1272 OF 2013WITHNOTICE OF MOTION NO.1273 OF 2013 Reckitt Piramal Private Limited.-Versus- ..Appellant The Commissioner of Income Tax...Respondent ........... Mr.Percy Pardiwala, Senior Advocate i/by Chandana Salgaocar, Siddharth Bawa and C.M.Lokesh, for the Appellant.Mr.Arvind Pinto, for the Respondent. ........... CORAM: S.C. DHARMADHIKARIAND B.P. COLABAWALLA, JJ. DATE :- 24[th] July, 2014 P.C.: 1This Appeal challenges the order passed by the Income Tax Appellate Tribunal in Income Tax Appeal No.2500/Mum/2009 dated 23.01.2013. The Assessment Year in question is 2000-2001.2Mr.Pardiwala, learned Senior Counsel appearing for the Appellant/ Assessee, submits that the matter was earlier decided by the Income Tax Appellate Tribunal on 24.03.2010. The Revenue challenged that order before this Court. Against the order passed by this Court in the Revenue's Appeal and being unsuccessful, the Department/ Revenue challenged the order before the Honourable Supreme Court and our attention is invited to the order passed by the Honourable Supreme Court firstly on 30.07.2012 in which the Supreme Court recorded the statement of the Assessee that it would file an additional affidavit. The Assessee was granted time to file an additional affidavit. The Honourable Supreme Court, according to Mr.Pardiwala, desired to know from the Assessee whether it had communicated to the Assessing Officer the actual conversion factor which was applied for converting the number of cakes into weight. The Honourable Supreme Court also desired to know the conversion factor applied for the last three years. That is how the additional/ supplementary affidavit was filed and thereafter, the Honourable Supreme Court passed the final order on 03.09.2012 in the Special Leave Petition of the Revenue. It noted that the Assessee took a stand that the actual conversion factor was 75 gms per cake for Dettol Soap Fresh. By mistake in the Assessment Year 2000-2001 the Assessee applied conversion factor of 250 gms. per cake which was wrongly taken from Liquid Soap and applied it as a conversion factor for Dettol Soap Fresh. The Honourable Supreme Court recorded the Department's statement that this aspect was not communicated to the Assessing Officer. Mr.Pardiwala submits that specifically for reexamining this aspect of conversion factor applicable to soap in the present case the Honourable Supreme Court expressed no opinion on merits. The orders passed by the High Court and the Tribunal earlier were set aside and the matter was remitted to the Tribunal for de-novo consideration. Mr.Pardiwala submits that if the matter was remitted with specific direction and to the Tribunal for de-novo consideration only of the conversion factor, then, the Tribunal acted beyond its jurisdiction and passed the impugned order. In that the Tribunal firstly wrongly recorded the concession of the Assessee's Advocate who later on clarified that he had no instructions to concede to any remand much less argue the Appeal. He was instructed to seek an adjournment. Secondly, the Tribunal could not have then held that the Commissioner of Income Tax was justified in exercising his powers under Section 263 of the Income Tax Act, 1961. That is not the issue which could have been examined again and after its stand concluded by the orders passed earlier and particularly that of the Honourable Supreme Court. Mr.Pardiwala, therefore, submits that the Appeal raises a substantial question of law. Section 263 of the Income Tax Act, 1961. That is not the issue which could have been examined again and after its stand concluded by the orders passed earlier and particularly that of the Honourable Supreme Court. Mr.Pardiwala, therefore, submits that the Appeal raises a substantial question of law. 3Upon perusal of the memo of Appeal and the impugned order, so also, the order passed by the Honourable Supreme Court we are of the opinion that the Appeal does not raise any substantial question of law. The Tribunal was called upon to decide the matter afresh and de-novo. If the earlier orders passed by the Tribunal and this Court were set aside by the Honourable Supreme Court and the matter was remitted for de-novo consideration to the Tribunal, then, we do not see how the Supreme Court's order and in the given facts and circumstances could be seen as restricted only to one aspect. The entire Appeal was made over to the Tribunal. If the Appeal was to be reheard again, then, in the given facts and circumstances the Tribunal did not commit any error in deciding all aspects of the matter and which were subject matter of this Appeal. That course does not seem to be seriously objected either. Secondly, the Tribunal's order in this case must be read in its entirety. The Tribunal adverted to the proceedings before the Honourable Supreme Court and the additional affidavit filed by the Assessee. The Assessee accepted the mistake in detail and the quantitative figures of stock as given in the Schedue-17. In these circumstances and when an opportunity has to be given in terms of the Supreme Court's order to the Assessee, then, we do not see how the Tribunal committed any error of law apparent on the face of the record or acted perversely in directing the Assessing Officer to examine the aspect and which was subject matter of the additional affidavit filed in the Supreme Court. In the given facts and circumstances the Supreme Court's order cannot be read as preventing the Tribunal from remitting and directing the Assessing Officer to examine the matter and in the light of the Supreme Court's order. Such course adopted and in the peculiar facts and circumstances does not suffer from any error of law apparent on the face of the record or perversity. More so when we do not find that the Tribunal's order results in miscarriage of justice. The course being not seriously disputed the present Appeal does not raise any substantial question of law. It is dismissed. No costs. 4In the light of dismissal of the Appeal, the Notice of Motion does not survive and it is also disposed of. No costs. (B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)