Itxa/1284/2012 Of Commissioner Of Income Tax -12 v. M/S Ace Impex

sbw *1* IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1284 OF 2012 Commissioner of Income Tax-12 ..Appellant -Versus-M/s. ACE Impex ..Respondent ........... Mr. P. C. Chhotaray for the Appellant.Mr. Akhilshwar Sharma for the Respondent. ........... CORAM: S.C. DHARMADHIKARI AND A. K. MENON, JJ. DATE :- 24[th] SEPTEMBER, 2014 P.C.: 1]Heard Mr. Chhotaray, learned counsel, appearing for the Revenue in support of this Appeal. The Revenue is in Appeal against the concurrent findings which have been rendered by the Commissioner of Income Tax (Appeals), Mumbai, in his order dated 31[st] January, 2011 and that of the Tribunal rendered on 16[th] May, 2012. 2]The assessment year in question is 2003-04. 3]The case was of reopening of the assessment and essentially power under section 47 of the Act was invoked. The Assessee is a manufacturer/exporter. He filed a return of income declaring income of Rs.2,88,87,930/- on 27[th] November, 2003 along with audit report, statement of income, profit and loss account, balance sheet etc. The Assessing Officer accepted the return on 9[th] April, 2004 under section 143(1) of the Income Tax Act, 1961. He completed the assessment proceedings under section 143(3) on 2[nd] March, 2006 and assessed the total income at Rs.4,22,25,380/-. The Assessee in the return had claimed deduction under section 80HHC of the Act at Rs.2,87,99,709/-. The further deduction was claimed under section 80IB at Rs.1,40,42,727/-. The Assessing Officer accepted these claims in part and after more than 4 years of the expiry of the assessment year in question that is on 25[th ]March, 2009, a notice under section 148 of the Act for reopening of the assessment under section 147 was served on the Assessee on 28[th] March, 2009. The Assessee objected to the re-assessment and on the grounds which have been noted by both the Commissioner and the Tribunal. The first ground was that the power could not have been exercised after the period specified in the proviso to section 147 would come into play, namely, when the assessment under section 143(3) or under section 147 has been made for the relevant assessment year, no action shall be taken under this section after the expiry of 4 years from the end of the relevant year unless, firstly, the income chargeable to tax has escaped assessment by reason of failure of the assessee to make a return under section 139 or in response to a notice under section 142(1) or under section 148 of the Income Tax Act or secondly, to disclose fully and truly all material facts necessary for the assessment year. 4]The Tribunal found that on both counts the Revenue has failed to satisfy them that the assessment could have been reopened. The finding of fact is that notice under section 148 of the Act is after 4 years from the end of relevant assessment year 2003-04. The reasons set out in the notice are not such as would enable the authorities to record a finding in favour of the Revenue. This was not a case where there was a failure to file return of income. This was not even a case of the Assessee's failure to make a full and true disclosure of all material facts necessary for his assessment. The ground raised is that the deduction has been granted under both section 80HHC and 80IB and which is impermissible. This could not have been a valid ground in the given facts and circumstances. It is on this ground and finding that the Commissioner as also the Tribunal upheld the objection of the Assessee and refused to assist the Revenue. We do not find these findings to be vitiated by perversity or any error of law apparent on the face of the record. This is not a case where there is any failure on the part of the Assessee to make a return or to disclose fully and truly all material facts necessary for his assessment or that assessment year. There is no substantial question of law and the Appeal is, therefore, dismissed. This is not a case where after as found by the Hon'ble Supreme Court and equally this Court in the case of Crown Consultants P. Ltd. V/s. Commissioner of Income Tax and another reported in (2014) 362 ITR 368 that a fresh objection has been raised before the Court which the Assessing Officer had no occasion to deal with. That is why the Assessee was not assisted by the Court in its appellate jurisdiction. The Division Bench judgment could be distinguished because there the notice to reopen was not found to be ex facie without jurisdiction. In such circumstances, we do not find that Mr. Chhotaray's reliance on this judgment is well placed. 5]As a result of the above discussion, the Appeal does not raise any substantial question of law. It is, accordingly, dismissed. No costs. (A. K. MENON, J.) (S.C. DHARMADHIKARI, J.) wadhwa