The Commissioner Of Income Tax (Central), Nagpur v. Mahesh Gupta, Nagpur

FARAD CONTINUATION SHEET No.IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPUR INCOME TAX APPEAL NO. 9/2013 (THE COMMISSIONER OF INCOME TAX (CENTRAL), NAGPUR VERSUS MAHESH GUPTA, NAGPUR) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's ordersappearances, Court's orders of directionsand Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Anand Parchure, counsel for the appellant.Shri L.S. Dewani, counsel for the respondent. CORAM: SMT. VASANTI A. NAIK ANDA.S. CHANDURKAR,JJ. DATE:OCTOBER 10 , 2013. By this appeal, the appellant-Department challenges the order of the Income Tax Appellate Tribunal, Nagpur Bench, Nagpur dated 15.10.2012 allowing an appeal filed by the respondent-Assessee and holding that the Commissioner of Income Tax did not have jurisdiction to invoke the revisional powers under Section 263(1) of the Income Tax Act, 1961. The respondent-Assessee sought exemption under Section 54-F of the Act but, the said claim was disallowed by the Assessing Officer. The respondent-Assessee filed an appeal against the order of Assessment Officer and while allowing the appeal, the Commissioner of Income Tax (Appeals) held that the Assesee was entitled to exemption under Section 54-F of the Act. While considering this issue, the Commissioner of Income Tax referred to the provisions of Section 54-F and considered the factual data that was available. The Commissioner of Income Tax held that though the respondent-Assessee was the owner of the residential house he was still entitled to exemption for purchase/construction of another residential house under Section 54-F of the Act. After the order in appeal was passed on 07.05.2007, the Commissioner of Income Tax, sought to invoke the revisional jurisdiction under Section 263(1) of the Act and held that the Assessee was not entitled to exemption. The Commissioner of Income Tax re-appreciated the facts to record a finding that the Assessee was not entitled to exemption. The Assessee challenged the order of the Commissioner of Income Tax before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal by relyingontheprovisionsof Explanation (c) to Section 263(1) of the Act held that the Commissioner of Income Tax (Appeals) was not entitled to invoke the jurisdiction under Section 263(1) of the Act. After the order in appeal was passed on 07.05.2007, the Commissioner of Income Tax, sought to invoke the revisional jurisdiction under Section 263(1) of the Act and held that the Assessee was not entitled to exemption. The Commissioner of Income Tax re-appreciated the facts to record a finding that the Assessee was not entitled to exemption. The Assessee challenged the order of the Commissioner of Income Tax before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal by relyingontheprovisionsof Explanation (c) to Section 263(1) of the Act held that the Commissioner of Income Tax (Appeals) was not entitled to invoke the jurisdiction under Section 263(1) of the Act. On hearing the learned counsel for the parties and on a perusal of the order of the Commissioner of Income Tax (Appeals) dated 07.05.2007 and the provisions of Section 263 of the Act, it appears that the Tribunal was justified in holding that the Commissioner of Income Tax (Appeals) was not entitled to invoke the jurisdiction under Section 263 of the Act when the issue in regard to the exemption under Section 54-F was considered and decided by the Commissioner of Income Tax (Appeals) by the order dated 07.05.2007. While holding so, the Tribunal rightly relied on Explanation (c) to Section 263(1) of the Act. As it was not permissible for the revisional authority to invoke jurisdiction in respect of matter, which had been considered and decided in an appeal, and since the matter in regard to grant of exemption under Section 54-F was considered and decided by the Commissioner of Income Tax(Appeals) on 07.05.2007, the Commissioner did not have jurisdiction to revise the order under Section 263(1) of the Act. The Tribunal rightly held that the view expressed by the Commissioner of Income Tax (Appeals) in the order dated 07.05.2007 was also a possible view. The order is based on the proper appreciation of the provisions of Section 263(1) Explanation (c) of the Income Tax Act. The judgment of the Tribunal finds support from the law laid down by this Court in the judgment reported in 2011 238 CTR Bombay 153. The order of the Tribunal appears to be just and proper and the same does not give rise to any substantial question of law. Since no substantial question of law arises in this appeal, the same is dismissed with no order as to costs. JUDGE JUDGE APTE