Principal Commissioner Of Income Taxcentral 1 v. M/S.twenty First Centurymanagement Services Ltd.,G3

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2017 CORAM : THE HON'BLE MR.JUSTICE T.S.SIVAGNANAMANDTHE HON'BLE MR.JUSTICE K.RAVICHANDRABAABU T.C.A.No.608 of 2017 Principal Commissioner of Income TaxCentral 1,No.108, Mahatma Gandhi Road,Chennai... Appellant -vs- M/s.Twenty First CenturyManagement Services Ltd.,G3, No.67, Eldams ROad,Chennai - 600 018... Respondent Appeal filed under Section 260-A of the Income Tax Act,1961, against the order dated 09.03.2017 made inI.T.A.No.1470/Mds/2016 on the file of Income Tax AppellateTribunal, Madras 'B' Bench, Chennai, for the Assessment Year2005-06. Coming from the Order of the commissioner of Income-Tax(Appeals)-II, dated 17/03/2016, in ITA .No.646/2013-14/CIT(A)-IIand preferred against the Assessment Order dated 28/03/2013 onthe file of the Assistant Commissioner of Income-tax companycircle -III (2), Chennai-34. For the assessment year 2005-06. For Appellant:Mr.T.R.Senthilkumar Heard Mr.T.R.Senthilkumar, learned counsel appearing forthe appellant/Revenue. 2.This appeal filed by the Revenue is directed against theorder passed by the Income Tax Appellant Tribunal (ITAT) inI.T.A.No.1470/Mds/2016 dated 09.03.2017. 3.This appeal has been filed raising the followingsubstantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the Appellate Tribunal is correct in lawin quashing the notice issued u/s.148 of theIncome Tax Act, 1961 on the ground that it lacksof jurisdiction, without considering Explanation 1and Explanation 2(c) to Section 147 of the IncomeTax Act?2. Whether the Appellate Tribunal is correct in lawin holding that the reasons, recorded forreopening of reassessment, were already examinedby the Assessing Officer in the order u/s.147passed on 30.12.2010, whereas no such reasons wererecorded for reopening assessment in respect ofwhich order was passed on 30.12.2010? 3. Whether the Appellate Tribunal is correct in lawin holding that the Revenue could not establishthat the income had escaped assessment due tofailure on the part of the assessee, by ignoringthe fact that the assessee did not submit correctdetails of carry forward losses during the courseof either assessment u/s.143(3) or subsequentfirst reassessment u/s.147 of Income Tax Act,1961? 4.Before we consider the above questions, it would benecessary to take note of the factual background in the matter.The assessee filed an appeal before the Tribunal against theorder of the Commissioner of Income Tax (Appeals) dated17.03.2016 for the assessment year 2005-06. This appeal wasfiled by the assessee challenging an order of assessment dated28.03.2013 passed under Sections 143(3) r/w. 147 of the IncomeTax Act, 1961. In fact the said assessment order is consequentupon the second reopening notice issued to the assessee. 5.We find from the facts that the first notice forreopening was issued virtually on the same ground and theassessee cooperated in the assessment proceedings and theAssessing Officer appears to have been satisfied with thesubmission and completed the assessment without any additions.Subsequently, there has been a change of officer who has issuedthe second reopening notice which has ultimately culminated inthe assessment order dated 28.03.2013. The petitioner contendedthat the second reopening of the assessment was a clear changeof opinion and therefore illegal. However, the Commissioner ofIncome Tax (Appeals) partly agreed with the assessee with regardto the submissions made pertaining to the assessment records andtherefore allowed the assessee's appeal in part by remanding thematter to the Assessing Officer to examine the submission of theappellant and if it is found to be factually correct, torecompute the income under Section 115JB of the Income Tax Act,1961. As against the order of the remand, the Revenue did not prefer an appeal to the Tribunal. However, the assessee beingaggrieved by the second reopening filed an appeal which has beenallowed by the Tribunal which order is being impugned in thisappeal. 6.On a careful reading of the order passed by the Tribunal,we find that the Tribunal has done thorough factual exercise andheld that the reopening for the second time on the same issue isnothing but change of opinion and is not permissible in law.Furthermore, the Tribunal has specifically recorded that therevenue could not establish that the income has escapedassessment due to the failure on the part of the assessee.Further, this finding recorded by the Tribunal is on re-appreciation of the factual position. Therefore, we find thatno question of law much less the substantial questions of law asframed arise for consideration in this appeal. Accordingly,this Tax Case Appeal fails and hence dismissed. No costs. Sd/-Assistant Registrar//True copy//Sub Assistant RegistrarcseTo 1.The Income Tax Appellate Tribunal, Madras 'B' Bench, Chennai. 2.The Commissioner of Income-Tax, Company circle III (2), Chennai-34. 3.The Assistant Commissioner of Income-Tax, Company circle III (2), Chennai-34. +1cc to Mr.T.R.Senthikumar, Advocate SR.No. NRI(CO)GN(27/12/2017) T.C.A.No.608 of 2017