The Commissioner Of Income Tax – 18, Mumbai v. Metropolitan Trading Company

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1589 OF 2009WITHINCOME TAX APPEAL (L) NO.214 OF 2009 The Commissioner of Income Tax – 18, Mumbai ..Appellant. Versus Metropolitan Trading Company ..Respondent. Mr.A.S. Shivsharan for the appellant. Ms.Vasanti B. Patel for the respondent. CORAM : V.C. DAGA &J.P. DEVADHAR, JJ. DATE : 26th JUNE, 2009 P.C. : 1.Heard learned counsel for the rival parties. For the reasons stated in the affidavit in support of the notice of motion, delay caused in filing the appeal is condoned. The notice of motion is made absolute in terms of prayer clause (a). 2.Registry is directed to register the appeal. Office objections, if any are over-ruled. By consent of parties, appeal is taken up for hearing. The question sought to be raised in this appeal is with regard to the interpretation of explanation (baa) to Section 80HHC (4c) of the Act and another question raised is with regard to the reopening under Section 147 of the Income Tax Act. We were taken through the order of CIT (A), wherein the CIT (A) has categorically recorded a finding that reopening was bad in law. As a matter of fact, once a finding was recorded by the appellate authority that the reopening is bad in law, there was no jurisdiction in the Appellate Court to dwell on the merits of the matter and record a finding adverse to the assessee. Be that as it may, the revenue has carried the matter in appeal before the Appellate Tribunal. However, the revenue did not challenge adverse findings on the question of reopening, which was held to be bad in law with the result that finding has become final and conclusive. The Tribunal has set aside the order of the appellate authority. 3.Having taken survey of the factual aspects, we noticed that the question sought to be raised in this appeal does not arise from the order of the tribunal. Even on merits, the revenue has no case. The appeal is, therefore, dismissed in limine with no order as to costs. (J.P. Devadhar, J.) (V.C. Daga, J.)