Ramachandran Nair, J v. Shri. P.m.paul, Glen Tea Factory, Glen

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 ITA.No. 775 of 2009() --------------------- ITA.1035/COCH/2005 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT: ------------------------------ COMMISSIONER OF INCOME TAX, KOTTAYAM. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): --------------- SHRI.P.M.PAUL, GLEN TEA FACTORY, GLEN MARY P.O., PEERMADE, IDUKKI DISTRICT. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, ALONG WITH ITA NO. 1234,1247& 1328 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR &P.S.GOPINATHAN, JJ. .................................................................... I.T. Appeal Nos.775,1234,1247 & 1328 of 2009 ....................................................................Dated this the 10th day of February, 2010. JUDGMENT Ramachandran Nair, J. The question raised is whether the Tribunal was justified incancelling income escaping assessment completed under Section 147 ofthe Act by revising intimation issued under Section 143(1)(a) of theAct. The Tribunal found that the Assessing Officer could have madethe assessment by issuing notice under Section 143(2) and havingfailed to proceed to make regular assessment, he is barred frominitiating proceedings under Section 147. However, Senior StandingCounsel has relied on decision of the Supreme Court in ASST.COMMISSIONER OF INCOME-TAX VS. RAJESH JAVERI STOCKBROKERS P. LTD. reported in (2007) 291 ITR 500 wherein theSupreme Court has held that while issuing an intimation under Section143(1)(a), the Assessing Officer cannot be said to have formed anopinion and, therefore, the subsequent notice issued under Section 147cannot be said to be on account of change of opinion. We notice thatthe judgment of the Supreme Court abovereferred has been reported after the orders of the Tribunal. This court also had occasion toconsider the authority of the Assessing Officer to reopen assessmentunder Section 147 after issuing intimation under Section 143(1)(a)without making regular or scrutiny assessment. During hearingcounsel appearing for the assessee pointed out that all material factsrequired for assessment are available in the return itself and so muchso, some assessments completed beyond four years are not tenable.Since this issue is not seen raised before the Tribunal and in view of thesubsequent decision of the Supreme Court abovereferred andjudgments of this court, we feel the matter should be reconsidered bythe Tribunal. We, therefore, allow the appeals by setting aside theorders of the Tribunal and remand the matter to the Tribunal forreconsideration by it after giving opportunity of hearing to both sides.The maintainability of the appeal under the Circular also should beconsidered by the Tribunal while deciding the matter afresh. C.N.RAMACHANDRAN NAIRJudge P.S.GOPINATHANJudge