Mr. F v. Itr 717

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 611 OF 2016 Pr. Commissioner of Income Tax-8}AppellantversusM/s. Albright & Wilson Chemicals}India Ltd.}Respondent Mr.Suresh Kumar for the appellant. Mr. F. V. Irani I/b. Mr. Atul K. Jasani forthe respondent. CORAM :-S. C. DHARMADHIKARI &B. P. COLABAWALLA, JJ. DATE :- OCTOBER 10, 2018 P.C. :- 1.This appeal arises out of the order of the tribunal dated 13[th]May, 2015 pertaining to assessment year 2006-07. The tribunaldealt with cross appeals. The four questions proposed by theRevenue are to be found at pages 4 and 5 of the paper book. It isfairly stated by Mr. Suresh Kumar appearing in support of thisappeal that the first three questions have been answered in favourof the assessee and against the Revenue in a Division Benchjudgment of this court in the case of Commissioner of Income Taxvs. Sulzer India Ltd.[1]. It is now stated across the bar that theRevenue, aggrieved by the view taken in Sulzer (supra), 1(2014) 369 ITR 717 approached the Hon'ble Supreme Court, but in the case of adistinct assessee, namely, Balkrishna Industries Ltd. A detailedjudgment has been rendered in that case, namely, Civil AppealNo.19587 of 2017 and connected matters decided on 21[st]November, 2017. The Hon'ble Supreme Court affirmed the viewtaken by the Division Bench of this court in Sulzer (supra). Inthese circumstances, the first three questions, according toMr.Suresh Kumar, do not survive as they are not substantialquestions of law. 2.However, the fourth question at page 5 of the paper book is asubstantial question of law, according to Mr.Suresh Kumar. Hesubmits that the issue pertaining to this question was not raisedbefore the assessing officer and he had no opportunity to examineit. That was raised before the first appellate authority and alsobefore the tribunal. Yet, the tribunal has accepted thecontentions of the assessee in that behalf and therefore, we mustentertain this question. 3.Mr. Irani appearing for the assessee argues otherwise andinvites our attention to the impugned order. With the assistanceof Mr.Suresh Kumar and Mr. Irani, we have perused thediscussion in relation to this question. The assessee raised fourgrounds. Ground Nos. 1 and 2 relate to taxability of surplus on J.V.Salunke,PA Page 2 of 3 cessation of deferred sales tax liability amounting toRs.13,80,510/- and 2,66,52,374/-. It is evident that the assesseeavailed of the benefit of a scheme, under which, there was anoption for deferring payment of sales tax to the Government. Interms of this package scheme, advantage flowed and the issuesquarely arises in relation to the taxability of the amount statedto be the income of the assessee. 4.We find from the tribunal's order that the departmentalrepresentative argued on merits of this issue. He has not objectedto the tribunal holding in favour of the assessee by relying on theview in the case of Sulzer (supra). Rather, it was conceded thatthe issue is answered in favour of the assessee by the judgment ofthis court in Sulzer (supra). Once the judgment of this court andthe view taken therein being affirmed by the Hon'ble SupremeCourt, even this question no. 4 cannot be termed and treated as asubstantial question of law. The result is that the appeal fails andit is dismissed. There would be no order as to costs. (B. P. COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)