Sherla v. Itxa.502.2017+_32.Doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J. INCOME TAX APPEAL NO.502 OF 2017 Pr. Commissioner of Income Tax (C) - 1… Appellant VsM/s.Rehab Housing Pvt. Ltd.… Respondent With INCOME TAX APPEAL NO.503 OF 2017 Pr. Commissioner of Income Tax (C) - 1… Appellant VsM/s.Rehab Housing Pvt. Ltd. … Respondent With INCOME TAX APPEAL NO.504 OF 2017 Pr. Commissioner of Income Tax (C) - 1… Appellant VsM/s.Rehab Housing Pvt. Ltd.… Respondent And INCOME TAX APPEAL NO.521 OF 2017 Pr. Commissioner of Income Tax (C) - 1 VsM/s.Rehab Housing Pvt. Ltd. … Appellant … Respondent Mr.Suresh Kumar for the Appellant Mr.Mahendra G. i/b Law Charter for the Respondent CORAM: AKIL KURESHI & S.J. KATHAWALLA, JJ. DATED: JULY 22, 2019 P.C.: 1.These appeals are filed by the Revenue to challenge thejudgment of the Income Tax Appellate Tribunal. The facts beingsimilar, we may peruse the Income Tax Apepal No.502 of 2017.The following question is presented for our consideration: a)Whether on the facts and in the circumstances of thecase and in law, the Tribunal was justified in quashign theorder under section 153A stating that in absence of anyincriminating material on issue which has already beenexamined and finalized in original assessment cannot bereexamined and reopened?case and in law, the Tribunal was justified in quashign theorder under section 153A stating that in absence of anyincriminating material on issue which has already beenexamined and finalized in original assessment cannot bereexamined and reopened? 2.The respondent – assessee is a private limited company.The appeal concerns the Assessment Year 2005 – 2006. TheTribunal by the impugned judgment while allowing the assessee’s appeal, deleted the assessment made under section 153A of theIncome Tax Act, 1961 (for short, ‘the Act’), primarily on the groundthat the so called incriminating material, which was the basis forsuch assessment, was already before the Assessing Officer at thetime of framing the original assessment. The Tribunal noted thatthe entire issue of deduction u/s 80-IB (10) of the Act wasexamined by the Assessing Officer having regard to such material.The Tribunal was, therefore, of the opinion that such assessmentcannot be reexamined or reopened in exercise of powers undersection 153A of the Act. The Tribunal placed reliance on thedecision of the Division Bench of this Court in the case ofCommissioner of Income Tax II vs. Continental WarehousingCorporation (Nhava Sheva) Ltd. reported in (2015) 64Taxmann.com 34(SC). 3.We have perused the judgment of this Court inCommissioner of Income Tax II vs. Continental WarehousingCorporation (Nhava Sheva) Ltd. (supra) dated 21.4.2015 andnoticed that an identical issue had come up for consideration. TheDivision Bench had rejected the Revenue’s appeals and confirmedthe decision of the Special Bench of the Tribunal. Reliance is also ITXA.502.2017+_32.doc placed on the decision of the Delhi High Court in the case ofCommissioner of Income Tax vs. Anil Kumar Bhatia reported in[2013] 352 ITR 493 and of this Court in the case ofCommissioner of Income Tax (Central), Nagpur vs. Murli AgroProducts Ltd. reported in [2014] 49 Taxmann.com 172(Bombay). 4.In view of this, the Appeals are dismissed. (S.J. KATHAWALLA, J.) (AKIL KURESHI, J.)